Suspension of Article 19 during emergency

Also called: Article 358 · Topic: Emergency Provisions and President's Rule · NCERT: Beyond NCERT

Meaning

Suspension of Article 19 during emergency (Article 358) means this: once a national emergency on grounds of war or external aggression is declared, the six freedoms of Article 19 can no longer limit the State's power to make laws or take executive action [1]. Since the 44th Amendment (1978), this protection covers only laws that state they are made "in relation to" the emergency.

It matters because it is the only case where a fundamental right stops applying automatically, with no order from anyone. The 1975 Emergency also showed how easily this power can be misused.

Explanation

How it works

• Step 1: an emergency is declared. The President proclaims a national emergency under Article 352 (when the security of India, or a part of it, is threatened) on the ground of war or external aggression.
• Step 2: Article 19 stops applying automatically.
• The President does not need to pass a separate order.

• Article 19 gives citizens six freedoms: speech, assembly, association, movement, residence and profession.

• Step 3: laws made during the emergency are protected.

• A law covered by Article 358 cannot be challenged in court for breaking Article 19.
• Executive action taken under such a law is protected in the same way.

When the emergency ends

• The freedoms come back by themselves. Nobody needs to restore them.
• Laws lose force. Any law that breaks Article 19 stops having effect to the extent that it does so [1].
• Past acts stay safe. Actions already taken while the emergency was in force cannot be challenged later.

Limits added by the 44th Amendment (1978)

• External emergency only.
• Article 358 applies only when the emergency is declared on grounds of war or external aggression (an external emergency).
• It does not apply in an emergency declared on grounds of armed rebellion (an internal emergency).

• In an internal emergency, Article 19 stays in force unless an Article 359 order names it.

• Recital rule (Article 358(2)).

• A recital is a statement written into the law itself.
• Only a law that states it is "in relation to" the emergency gets this protection.

• Executive action is protected only if it is taken under such a law [1].

• Why the rule was added.

• Before 1978, every law passed during an emergency escaped Article 19.
• This was true even if the law had nothing to do with the emergency.

In the Constitution and practice

• Where it sits: Article 358 is in Part XVIII (Articles 352–360, the Emergency Provisions). It works alongside Article 359, which deals with the enforcement of other fundamental rights.
• Who uses it: nobody has to use it. It comes into effect the moment the President proclaims an external emergency under Article 352.
• Amendment: the 44th Amendment (1978), passed by the Janata government, made two changes:
• It limited Article 358 to external emergencies.

• It added the recital rule in Article 358(2).

• The 1975 Emergency:

• The internal emergency declared on 25 June 1975 was on the old ground of "internal disturbance". The 44th Amendment later replaced that ground with the narrower term "armed rebellion".

• Article 19 was already suspended at that time. The reason was that the 1971 external emergency, declared during the war with Pakistan, was still in force.

• Article 359 orders in the same periods:

• The 1962 and 1975 orders named Articles 14, 21 and 22, so people could not go to court to enforce those rights.
• In ADM Jabalpur v. Shivakant Shukla (1976), the court held that no detenu (a person held without trial) could seek habeas corpus (a court order to produce a detained person, so the court can check whether the detention is legal).
• Justice H.R. Khanna dissented [3].
• A nine-judge bench overruled ADM Jabalpur in K.S. Puttaswamy v. Union of India (24 August 2017) [3].

Don't confuse with

• Article 359: it needs a Presidential order. It suspends only the enforcement of the named rights in court, not the rights themselves, and it applies in both external and internal emergencies [2]. Article 358 is automatic, covers only Article 19, suspends the right itself, and applies in external emergencies only.
• Articles 20 and 21: since 1978, these can never be named in an Article 359 order [2]. Article 19, by contrast, is suspended automatically in an external emergency.
• Martial law (Article 34): the army replaces civil government and the ordinary courts in a specific area, and no article sets out how it is declared. During a national emergency, civil government and the courts keep working.
• "All fundamental rights are suspended in an emergency": this statement is false. Article 358 touches only Article 19, and only in an external emergency.

Prelims Hooks

• Article 358: automatic. It suspends only Article 19 and only in an emergency on grounds of war or external aggression.
• 44th Amendment (1978): Article 358 no longer applies in an armed-rebellion emergency.
• Article 358(2): only laws that state they relate to the emergency, and executive action taken under such laws, are protected [1].
• When the emergency ends: such laws stop having effect to the extent that they break Article 19 [1]. Actions already taken cannot be challenged.
• 1975: Article 19 was suspended because the 1971 external emergency was still in force, not because of the 25 June 1975 internal emergency.
• Trap: "Article 358 needs a Presidential order" is false. That is Article 359.

Mains Points

• Liberty versus security:
• In wartime the State needs freedom to act quickly, so Article 358 removes Article 19 automatically.
• The 1962, 1971 and 1975 emergencies showed that this power can be stretched from defending the country to suppressing critics at home.

• The 44th Amendment struck a balance. It kept the power for real external threats and removed it from internal emergencies.

• The recital rule as a check on the executive:

• Before 1978, an emergency could be used as cover to pass unrelated laws that cut free speech or movement.

• Article 358(2) now makes the government state openly that a law relates to the emergency. This gives courts a test for judicial review (the power of courts to strike down unlawful laws and actions).

• Built-in time limit:

• Laws lose effect when the emergency ends, so emergency rules do not quietly become permanent.
• However, past actions cannot be challenged. Critics argue this leaves people harmed during an emergency with no remedy, so any wrong done then goes without redress.

Related concepts

• Suspension of enforcement of fundamental rights
• External emergency

Read more

• Fundamental rights during a national emergency: Arts. 358 and 359