(1) While a Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression is in operation, nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect:
Provided that where such Proclamation of Emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation.
(2) Nothing in clause (1) shall apply —
(a) to any law which does not contain a recital to the effect that such law is in relation to the Proclamation of Emergency in operation when it is made; or
(b) to any executive action taken otherwise than under a law containing such a recital.
Draft Article 279, Draft Constitution of India, 1948
While a Proclamation of Emergency is in operation, nothing in article 13 of Part III of this Constitution shall restrict the power of the State as defined in that Part to make any law or to take any executive action which the State would otherwise be competent to make or to take.
Draft Article 279 (Article 358 of the Constitution of India, 1950) was discussed in the Assembly on 4 August 1949. During an emergency, it gave the State the power to suspend freedoms guaranteed under Draft Article 13 (hyperlink), which included the freedom of speech and expression, freedom to assemble and form associations, freedom to practice any profession and, the freedom to move, reside and settle in any part of India.
The Draft Article attracted a lot of criticism. One Member argued that it was redundant as Draft Article 13 fell within Part III of the Constitution that would in any case be suspended during an emergency through Draft Article 280 (hyperlink). Another Member insisted that to infringe upon fundamental rights in such a manner was equivalent to declaring martial law. Further, Members pointed out that Draft Article 13 placed limitations on fundamental rights on the grounds of public safety, public order and security of the State. Hence, there was no need for Draft Article 279.
A Member moved an amendment to replace ‘State’ with ‘Parliament’. He argued that since emergencies like war could go on for years, he only trusted Parliament to exercise the power to deprive people of their fundamental rights, not any executive authority. Otherwise, the Constitution, he continued, would appear to give rights through one provision and take them away through another. A Member supported this amendment stating only parliament was ‘competent’ to have such powers.
The Drafting Committee Chairman defended the Draft Article. He opposed the amendment seeking Parliament to be the sole authority to suspend Fundamental Rights by pointing to the provisions of Draft Article 13 that already gave both the Union and State legislatures and executives to limit fundamental rights. He argued that there was no reason why such a power that existed in normal circumstances should be restricted to only Parliament during an emergency.
He also clarified that there was no overlap between Draft Article 279 and 280. Draft Article 279 gave the State the power to make laws irrespective of its effect on the fundamental rights under Draft Article 13, while 280 gave it the power to suspend all fundamental rights under Part III. He felt that unless such a power to legislate was explicitly given to the State under Draft Article 279, the powers to suspend rights as per Draft Article 280 would have no consequence.
Finally, on 4 August 1949, all amendments were rejected and the Assembly adopted Draft Article 279 as part of the Constitution.