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

Detail

Basic terms

• National emergency (Art. 352): the President declares that the security of India, or of a part of India, is threatened. Only three grounds are allowed. They are war, external aggression and armed rebellion.
• External emergency: an emergency declared because of war or external aggression. An emergency declared because of armed rebellion is called an internal emergency.
• Before the 44th Amendment (1978), the third ground was "internal disturbance". The 1975 Emergency was declared on this ground.

• The 44th Amendment replaced "internal disturbance" with the narrower term "armed rebellion".

• Fundamental rights (Part III) are affected in two separate ways during an emergency:

• Art. 358 removes Art. 19 by itself.
• Art. 359 lets the President block court cases about named rights.

Art. 358 — Art. 19 is suspended automatically

• Suspension of Article 19 during emergency (Art. 358): while an emergency declared on grounds of war or external aggression is in force, Art. 19 cannot limit the State's power to make laws or take executive action [2].

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

• How it works:

• The emergency is declared under Art. 352.
• The Art. 19 freedoms stop applying automatically. The President does not need to pass a separate order.

• Laws made during this time cannot be challenged in court for breaking Art. 19.

• When the emergency ends:

• Any such law stops having effect to the extent that it breaks Art. 19 [2].
• Actions already taken while the emergency was in force cannot be challenged later.

• The Art. 19 freedoms come back automatically.

• Changes made by the 44th Amendment (1978):

• External emergency only. Art. 358 does not apply in an armed-rebellion emergency. In an internal emergency, Art. 19 stays in force unless an Art. 359 order names it.
• Recital rule (Art. 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 [2].

• Why the rule was added: before 1978, any law passed during an emergency escaped Art. 19, even if it had nothing to do with the emergency.

• History: in 1975, Art. 19 was already suspended. This happened because the 1971 external emergency (declared during the war with Pakistan) was still in force when the internal emergency was declared on 25 June 1975.

Art. 359 — Court enforcement is suspended by Presidential order

• Suspension of enforcement of fundamental rights (Art. 359): the President may order that the right to move any court to enforce the Part III rights named in the order is suspended [3].
• The rights themselves continue to exist. A person simply cannot go to court to enforce them while the order is in force.

• Cases already pending in court on those rights are also suspended [3].

• Steps:

• An emergency proclamation under Art. 352 is in force. It may be external or internal.
• The President issues an order naming the rights. In practice, the President acts on the advice of the Union Cabinet.
• The order runs for the whole emergency or a shorter period stated in it [3].
• It may cover all of India or only part of it [3].

• Art. 359(3): every order must be laid before each House of Parliament as soon as possible after it is made [3].

• Partial emergencies (Art. 359(2)): an emergency may cover only part of India. The order can be extended to other areas only if the President is satisfied that the security of India is threatened by activities in or connected with the emergency area [3].

• Art. 359(1A): while the order is in force, the named rights cannot limit the State's power to make laws or act. Such laws stop having effect when the order ends. Actions already taken stay protected [3].
• Changes made by the 44th Amendment (1978):
• Arts. 20 and 21 can never be named in an order [3].
  • Art. 20 protects people charged with crimes. There is no punishment under a law passed after the act (no retrospective criminal law). No one can be punished twice for the same offence (double jeopardy). No accused can be forced to give evidence against themselves.
  • Art. 21 protects life and personal liberty.

• Art. 359(1B): like Art. 358(2), only laws that state they relate to the emergency are protected. The same applies to executive action taken under such laws [3].

• Origin: this 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 be laid before Parliament [3].

Comparison: Art. 358 vs Art. 359

	Art. 358	Art. 359
How it starts	Automatic, when the emergency is declared	Presidential order
What it covers	Art. 19 only	Any right named in the order, except Arts. 20-21
Type of emergency	External only (war or external aggression)	External and internal
What is suspended	The right itself	Only its enforcement in court
Duration	The whole emergency	The whole emergency or a shorter period stated in the order
Area	Wherever the emergency applies	All of India or the part stated in the order
Protection for laws (since 1978)	Only laws stating they relate to the emergency (Art. 358(2))	Only laws stating they relate to the emergency (Art. 359(1B))

Case law

• Orders actually issued: the 1962 and 1975 orders named Arts. 14, 21 and 22.
• Art. 14 guarantees equality before law.

• Art. 22 gives protection 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 Arts. 21 and 22.

• They could still challenge their detention on other grounds:

  • the detention broke the detention law itself, or
  • the order was passed in mala fides (bad faith, for example to settle a personal grudge).

• ADM Jabalpur v. Shivakant Shukla (1976): the 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 [4].

• The full account of this case is in emergency-1975.

• K.S. Puttaswamy v. Union of India (24 August 2017):

• A nine-judge bench overruled ADM Jabalpur in this case on the right to privacy [4].

• It agreed with Khanna's view: writing the right to life and liberty into the Constitution does not create the right, and suspending a remedy does not destroy the right [4].

• A repeat of ADM Jabalpur is now constitutionally barred. Since 1978, Art. 21 cannot be named in an Art. 359 order, so habeas corpus stays available in every emergency.

• The general account of how fundamental rights are suspended is in fundamental-rights.

Traps and comparisons

• "All fundamental rights are suspended during an emergency" is FALSE. This statement appears in Class 12, The Crisis of Democratic Order, exercise 1(b).
• Even in 1975, the order only stopped people from going to court for the rights it named.
• Art. 19 was suspended only because the 1971 external emergency was still in force.

• Today Arts. 20 and 21 always remain enforceable.

• Martial law (Art. 34) is not the same as a national emergency:

	Martial law (Art. 34)	National emergency (Art. 352)
Declaration	No article in the Constitution sets out how it is declared	Formal proclamation under Art. 352
Area	Only a specific area	All of India or a part of it
Effect on government	The army replaces civil government and ordinary courts in that area	Civil government and courts keep working
Effect on rights	Parliament may pass an indemnity law protecting officials' acts done to restore order (Art. 34)	Arts. 358 and 359 apply

Prelims Hooks

• Art. 358 works automatically, applies only in an external emergency (war or external aggression), and suspends only Art. 19.
• Art. 359 works only through a Presidential order. It suspends the enforcement of the named rights, not the rights themselves, and applies in both external and internal emergencies.
• 44th Amendment (1978): Arts. 20 and 21 can never be suspended in an emergency.
• Art. 358(2) and Art. 359(1B): only laws that state they relate to the emergency are protected from challenge.
• Art. 359(3): every order must be laid before each House of Parliament.
• Makhan Singh (1964): a detenu can still challenge detention for breaking the detention law, or for mala fides, even while the order is in force.
• ADM Jabalpur (1976) barred habeas corpus during the Emergency. It was overruled in K.S. Puttaswamy (2017), and Khanna's dissent was upheld.
• Trap: "All fundamental rights are suspended during an emergency" is false.
• Trap: martial law (Art. 34) has no proclamation article and replaces the civil courts. During a national emergency, the courts keep working.

Mains Points

• Balance between liberty and security:
• The State needs room to act in war, so Art. 358 automatically frees it from Art. 19.
• The 1975 experience showed that this power can be misused.

• The 44th Amendment narrowed it in two ways: to external emergencies only, and to laws that state they relate to the emergency.

• Separating a right from its remedy: ADM Jabalpur treated a suspended remedy as if the right itself were gone. The 44th Amendment's protection of Arts. 20-21, together with Puttaswamy (2017), makes life, liberty and fair criminal process a guarantee that holds even in an emergency.

• Checks on the executive:
• Orders must be laid before Parliament.
• The recital rule stops the government from using an emergency as a cover for unrelated laws.
• Makhan Singh (1964) keeps judicial review alive for detention orders that break the law or are made in bad faith.

• Judicial review is the power of courts to strike down unlawful laws and executive acts.

• GS-I link: the 1962, 1971 and 1975 emergencies show how emergency powers can move from defending the country against outside threats to suppressing political opponents at home. This was the reason for the reforms made by the Janata government in 1978.