Suspension of fundamental rights during emergency

Also called: Articles 358 and 359 · Topic: Fundamental Rights and Constitutional Remedies · NCERT: Class 9, Ch 6 "Democracy"; Class 11, Ch 1 "Constitution: Why and How?"; Class 12, Ch 6 "The Crisis of Democratic Order"

Meaning

During a national emergency (Article 352), the Constitution allows fundamental rights to be suspended in two ways:

• Article 358: the six freedoms of Article 19 are suspended automatically, but only when the emergency is declared on the ground of war or external aggression.
• Article 359: the President may, by order, suspend people's right to go to court to enforce the rights named in that order. Articles 20 and 21 can never be named.

These two articles decide how much liberty a citizen keeps when the country faces its gravest danger. The 1975-77 Emergency and the ADM Jabalpur case showed how they can be misused.

Explanation

How Article 358 works: automatic suspension of Article 19

• Trigger: a national emergency proclaimed on the ground of war or external aggression.

• It does not apply when the ground is armed rebellion (44th Amendment, 1978).

• No separate order is needed. Article 19 stops limiting the State as soon as the proclamation is made.

• What the State can do:
• It can make laws and take executive action that would normally break Article 19's six freedoms, such as speech, assembly and movement.

• Such laws cannot be challenged in court for breaking Article 19 while the emergency lasts.

• When the emergency ends:

• Article 19 revives on its own.
• Laws that conflict with Article 19 stop working from that point.
• Acts done during the emergency cannot be challenged later.

How Article 359 works: suspension of enforcement by Presidential order

• Trigger: any national emergency, whatever its ground.
• Who acts: the President, by a formal order.
• What is suspended: the right to move a court, meaning the Supreme Court under Article 32 or a High Court under Article 226, to enforce the rights the order names.

• The rights themselves stay in the Constitution. Only the remedy (the way to get justice in court) is frozen.

• Scope: the order may cover all of India or any part of it.

• The fixed limit: Articles 20 and 21 can never be suspended (44th Amendment, 1978).
• Article 20: protection in respect of conviction for offences, which bans retrospective criminal laws, double punishment and forced self-incrimination.
• Article 21: protection of life and personal liberty.

Side-by-side

Point	Article 358	Article 359
How it starts	Automatically	By Presidential order
Ground of emergency	Only war or external aggression	Any national emergency
Rights affected	Article 19 only	Any right named in the order
What is suspended	The right itself	Only the right to go to court
Never touched	—	Articles 20 and 21
Area	Covers the whole period of the emergency	All of India or a part of it

In the Constitution and practice

• Where it sits: Articles 358 and 359 are in Part XVIII (Emergency Provisions). They work only with a national emergency under Article 352. They do not apply to President's rule (when the Union government takes over the running of a state for a time, under Article 356) or to a financial emergency (Article 360).
• A feature of Part III: fundamental rights are justiciable (enforceable in court). Even so, they can be suspended during a national emergency, except for Articles 20 and 21.
• The 1975-77 Emergency: this is the event studied in NCERT Class 12, "The Crisis of Democratic Order".
• The government used a Presidential order under Article 359 to suspend the right to go to court.

• Thousands of people were detained without trial.

• ADM Jabalpur v. Shivakant Shukla (1976):

• The majority held that while the Article 359 order was in force, a detained person could not seek habeas corpus (the writ that orders the State to produce a detained person in court and justify the detention).

• Justice H.R. Khanna dissented. He said the right to life does not depend on the Constitution alone.

• How Parliament responded: the 44th Amendment, 1978

• It made Articles 20 and 21 non-suspendable under Article 359.

• It limited Article 358 to emergencies for war or external aggression, so an emergency for armed rebellion no longer suspends Article 19 automatically.

• How the Court responded: K.S. Puttaswamy v. Union of India (August 2017)

• A nine-judge bench held privacy to be a fundamental right under Article 21.
• The majority overruled ADM Jabalpur [3].

Don't confuse with

• Article 358 vs Article 359: Article 358 suspends the right itself, only Article 19, and happens automatically in a war or external aggression emergency. Article 359 suspends only the right to go to court, for the rights the President names, in any national emergency.
• Martial law (Article 34): military rule over a specific area when order breaks down. The Constitution does not define it, and ordinary courts may stop working. In a national emergency, courts and governments keep working, and rights are hit only through Articles 358-359.
• Restricting rights of the forces (Article 33): Parliament permanently limits Part III rights for the armed forces, police and intelligence agencies to keep discipline [2]. It needs no emergency. Articles 358-359 are temporary and apply only during a national emergency.
• "Reasonable restrictions" (Article 19(2)-(6)): limits that apply in normal times and can be challenged in court for being unreasonable. Under Article 358, Article 19 does not limit the State at all while the emergency lasts.

Prelims Hooks

• Article 358 applies only when the emergency is declared for war or external aggression. It does not apply for armed rebellion (44th Amendment, 1978).
• Article 359: the President suspends the enforcement of the named rights, not the rights themselves. Articles 20 and 21 can never be suspended (44th Amendment, 1978).
• Trap: "Article 358 needs a Presidential order." This is false. Article 358 is automatic. Only Article 359 needs an order.
• Trap: "Articles 358-359 apply during President's rule or a financial emergency." This is false. They apply only to a national emergency (Article 352).
• Case–principle pair: ADM Jabalpur (1976) held that habeas corpus is not available while an Article 359 order is in force. Justice H.R. Khanna dissented. The judgment was overruled in Puttaswamy (2017, nine judges) [3].
• Article 359 orders may cover the whole of India or only a part of it.

Mains Points

• Lessons from the Emergency:
• ADM Jabalpur showed that rights can disappear when courts give way to the executive.
• The 44th Amendment (making Articles 20 and 21 non-suspendable and narrowing Article 358) and Puttaswamy (2017) [3] together rebuilt the safeguards.

• Justice Khanna's dissent is a model of judicial independence.

• National security vs liberty:

• In a real war, the State may need quick and wide powers, which is why Article 19 is suspended.
• Even then, Articles 20 and 21 remain as the minimum core of rights.

• Debate: is this core enough, or should more rights, such as Article 22 (safeguards against arrest and detention), also be protected from suspension?

• Rights on paper vs rights in court:

• Article 359 shows that a right without a remedy is empty, since Part III promises a remedy through Article 32.
• Present-day safeguards include parliamentary oversight of emergency proclamations, active courts and bodies such as the NHRC.

Related concepts

• Fundamental rights
• Bill of rights
• Magna Carta
• Legal rights
• Constitution of South Africa
• Constitutional rights outside Part III
• Restriction of rights of armed forces
• Martial law
• Article 35

Read more

• Rights, bills of rights and the features of Part III