Suspension of enforcement of fundamental rights

Also called: Article 359 · Topic: Emergency Provisions and President's Rule · NCERT: Beyond NCERT

Meaning

Suspension of enforcement of fundamental rights (Article 359) is the power of the President, while a national emergency is in force, to order that no person can go to any court to enforce the fundamental rights named in the order. Since the 44th Amendment (1978), Articles 20 and 21 can never be named in such an order [1].

It matters because only the court remedy is stopped. The rights themselves continue to exist. This difference was at the centre of ADM Jabalpur (1976) and K.S. Puttaswamy (2017).

Explanation

How it works

• Condition: a national emergency (Article 352) must be in force. It can be an external emergency (war or external aggression) or an internal emergency (armed rebellion).

• Steps, in order: 1. Proclamation: the President declares a national emergency under Article 352. 2. Order: the President issues an order that names the Part III rights. In practice, the President acts on the advice of the Union Cabinet. 3. Duration and area: the order says how long it lasts. It can last for the whole emergency or a shorter period. It can cover all of India or only part of it [1]. 4. Laying before Parliament (Article 359(3)): the order must be placed before each House of Parliament as soon as possible after it is made [1].

• Effect on court cases: while the order is in force:

• no one can go to court to enforce the named rights.

• cases on those rights that are already in court are also suspended [1].

• The right itself survives. Only the remedy is blocked for a time.

Effect on laws: Article 359(1A) and 359(1B)

• Article 359(1A): while the order is in force, the named rights cannot limit the State's power to make laws or take executive action [1].
• When the order ends, such laws stop having effect to the extent they break those rights.

• Actions already taken stay protected. They cannot be challenged later [1].

• Article 359(1B), the recital rule (added in 1978): 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].
• This stops the government from hiding unrelated laws behind the emergency.

Limits

• Articles 20 and 21 can never be named in an order (44th Amendment, 1978) [1].
• Article 20 protects people accused of crimes:
  • no punishment under a law passed after the act (no retrospective criminal law)
  • no punishment twice for the same offence (double jeopardy)
  • no accused can be forced to give evidence against themselves

• Article 21 protects life and personal liberty.

• Partial emergencies (Article 359(2)): if the emergency covers only part of India, the order can be extended to other areas only if the President is satisfied that India's security is threatened by activities in, or connected with, the emergency area [1].

• Judicial review continues for other grounds. Judicial review is the power of courts to strike down unlawful laws and executive acts. Under Makhan Singh (1964), a detention can still be challenged for breaking the detention law, or for mala fides (bad faith).

In the Constitution and practice

• Where it sits: Article 359, in Part XVIII (Emergency Provisions, Articles 352-360).
• Origin: it was Draft Article 280 of the 1948 Draft Constitution. The Constituent Assembly debated it on 4 and 20 August 1949. Amendments moved by Dr B.R. Ambedkar added the rule that orders must be laid before Parliament [1].
• 44th Amendment (1978): made by the Janata government after the 1975 Emergency.
• It barred Articles 20 and 21 from being named in an order.

• It added the recital rule in Article 359(1B) [1].

• Orders actually issued: the 1962 and 1975 orders named Articles 14, 21 and 22.

• Article 14 guarantees equality before law.

• Article 22 protects against arbitrary arrest and detention.

• Makhan Singh v. State of Punjab (1964): this case arose under the 1962 order.

• Detenus (people held without trial under a preventive detention law) could not rely on the suspended Articles 21 and 22.

• They could still challenge detention if it broke the detention law itself, or if it was made in mala fides.

• ADM Jabalpur v. Shivakant Shukla (1976): the Supreme Court held that during the 1975 Emergency, no detenu could seek habeas corpus.

• Habeas corpus is a court order to produce a detained person, so the court can check whether the detention is legal.

• Justice H.R. Khanna dissented. He held that the State cannot take away life or liberty without the authority of law [2].

• K.S. Puttaswamy v. Union of India (24 August 2017): a nine-judge bench overruled ADM Jabalpur [2].

• It agreed with Khanna's view.
• Writing the right to life and liberty into the Constitution does not create the right.

• Suspending a remedy does not destroy the right [2].

• Today: Article 21 cannot be named in an order. So habeas corpus stays available in every emergency, and a repeat of ADM Jabalpur is constitutionally barred.

Don't confuse with

• Article 358 (suspension of Article 19): it applies automatically when an emergency is declared, and only in an external emergency (war or external aggression). It suspends Article 19 itself. Article 359 needs a Presidential order, applies in external and internal emergencies, and suspends only court enforcement of the named rights.
• "All fundamental rights are suspended in an emergency": this is false. Only the rights named in the order lose court protection. Articles 20 and 21 always stay enforceable. In 1975, Article 19 was suspended only because the 1971 external emergency was still in force.
• Martial law (Article 34): no article sets out how martial law is declared. The army replaces civil government and ordinary courts in a specific area. During a national emergency, civil government and courts keep working, and Articles 358 and 359 apply.

Prelims Hooks

• Article 359 works through a Presidential order. It suspends the enforcement of the named rights, not the rights themselves. It applies in both external and internal emergencies.
• 44th Amendment (1978): Articles 20 and 21 can never be named in an Article 359 order [1].
• Article 359(3): every order must be laid before each House of Parliament [1].
• Article 359(1B): only laws that state they relate to the emergency are protected from challenge [1].
• Makhan Singh (1964): a detenu can still challenge detention for breaking the detention law, or for mala fides.
• ADM Jabalpur (1976) barred habeas corpus. It was overruled in K.S. Puttaswamy (2017), which upheld Khanna's dissent [2].

Mains Points

• Right vs remedy:
• ADM Jabalpur treated a suspended remedy as if the right itself were gone.

• The 44th Amendment's protection of Articles 20 and 21, together with Puttaswamy (2017), makes life, liberty and a fair criminal process a guarantee that holds even in an emergency.

• Liberty vs security:

• The State needs room to act in a crisis.
• The 1962 and 1975 orders show how this power can be stretched to detain political opponents.

• The 1978 reforms kept the power but narrowed it: Articles 20 and 21 are protected, and the recital rule applies.

• Checks on the executive:

• Orders must be laid before Parliament.
• The recital rule in Article 359(1B) stops the emergency from being used as cover for unrelated laws.
• Makhan Singh (1964) keeps judicial review alive for detentions that break the law or are made in bad faith.
• Together, these keep Parliament and the courts able to check the executive during an emergency.

Related concepts

• Suspension of Article 19 during emergency
• External emergency

Read more

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