Suspension Of Fundamental Rights During Emergency
Article 358
Article 358 states that once a National Emergency is declared, each of the six Fundamental Rights (FRs) under Article 19 (such as freedom of speech and expression) is automatically suspended, with no need for a separate order.
Article 19 limits the state's ability to make laws or take executive action. Except if provisions that are in conflict with Fundamental Rights under Article 19 are either modified or omitted before the law ceases to have effect, any such law or executive action ceases to have effect as soon as the proclamation ceases to operate.
It means that actions taken by the legislature or the executive branch during an emergency cannot be challenged after the emergency has ended. The 44th Amendment to the United States Constitution, enacted in 1978, stipulates that, first and foremost, all of Article 19's six Fundamental Rights can be suspended only when a National Emergency is declared for reasons of war or external aggression, not armed rebellion. Only laws relating to emergencies are protected from being challenged; other laws are not. In addition, any executive action taken in response to those laws is protected.
Article 359
During a National Emergency, the President can suspend the right to go to court to enforce the Fundamental Rights listed in the order by issuing an executive order. This means that the aforementioned Fundamental Rights are still alive and well, but their enforcement is on hold. Fundamental rights can be suspended for the duration of a National Emergency or for a shorter period of time, and the suspension can apply to the entire country or to any part of India as specified in the order.
Any such order, however, must be laid before each house of Parliament as soon as possible after it is issued for approval. When the suspension order is in effect, states have the authority to pass any law or take any action that violates the aforementioned Fundamental Rights. However, any such law or action becomes ineffective as soon as the National Emergency is declared over.
While the suspension order is in effect, any law passed by parliament or any executive action taken by the government cannot be challenged in court on the basis of a violation of any of the order's Fundamental Rights, even after the order has ceased to have effect.
Unlike Article 358, the President order in Article 359 can be issued after a National Emer-gency has been declared for any reason (war or external aggression or armed rebellion).
The 44th Amendment to the Constitution of the United States of America, enacted in 1978, imposes the following restrictions on Article 359:
"The Fundamental Rights under Article 20 and 21 (Right to life or Right against Arbitrary Detention) cannot be taken away, i.e. the enforcement of Fundamental Rights under Article 20 and 21 by a court of law cannot be suspended, even during a National Emergency." Only laws relating to emergencies are protected from being challenged; other laws are not. Also protected is any executive action relating solely to those laws."
Declarations Made So Far
In 1962, 1971, and 1975, the National Emergency was declared three times.
National Emergency was declared in Arunachal Pradesh in 1962 due to war or external aggression by China, and it lasted until 1968 due to a war with Pakistan in 1965, with no provision for renewal in the constitution until the 44th amendment in 1978. On the grounds of war with Pakistan, a National Emergency was declared in 1971. Even while the previous one was in effect, a new proclamation of National Emergency was issued in 1975 due to internal unrest.
What Is The Difference Between Articles 358 And 359?
Article 358 applies only to Fundamental Rights guaranteed under Article 19, whereas Article 359 applies to all Fundamental Rights whose enforcement is halted by Presidential order. Article 358 automatically suspends Article 19 rights. Article 359, on the other hand, does not suspend the rights (except for Articles 20 and 21), but only their enforceability.
In Makhan Singh v. State of Punjab, the Supreme Court made the following distinction between Articles 358 and 359:
Article 358 |
Article 359 |
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Freedoms given by Article 19 are suspended automatically under this Article as soon as the emergency is proclaimed |
Fundamental rights are not suspended automatically it has to be done by a presidential order. Only the courts cannot be moved to enforce fundamental rights. |
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Article 19 is suspended for the whole period of emergency. |
Right to move courts is suspended for the period of emergency or until the proclamation of the president to remove suspension of fundamental right. |
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Effective all over the country |
May be confined to an area. |
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It operates only in case of emergency on the ground of threat to the security of the country because of war or external aggression. |
It operates in any emergency proclaimed under Article 352 |