Question

Consider the following statements about the differences between Articles 358 and 359 of the Indian Constitution.

1. Article 358 suspends Fundamental Rights under Article 19 only during an External Emergency, while Article 359 applies to both External and Internal Emergencies.

2. Article 358 automatically suspends Fundamental Rights under Article 19, while Article 359 requires a Presidential Order to suspend the enforcement of specified Fundamental Rights.

3. Article 359 allows the suspension of the enforcement of Articles 20 and 21 during an emergency.

Which of the statements given above is/are correct?

• A. 1 and 2 only
• B. 1 and 3 only
• C. 2 and 3 only
• D. All of the above

Answer 1

Answer:

A. 1 and 2 only

Emergency Provisions: Articles 358 and 359

• The Indian Constitution provides for emergency provisions in Part XVIII (Articles 352 to 360) to enable the Union Government to handle extraordinary situations effectively. These provisions are crucial for maintaining the sovereignty, unity, integrity, and security of the country.

• During a National Emergency, the functioning of fundamental rights is significantly altered. Articles 358 and 359 specifically deal with the suspension of Fundamental Rights.

Article 358: Suspension of Article 19

• Scope of Application: Article 358 comes into play only when a National Emergency is declared on the grounds of war or external aggression (i.e., an External Emergency). It does not apply during an internal emergency (armed rebellion).

• Automatic Suspension: When an External Emergency is proclaimed, Article 358 automatically suspends the six Fundamental Rights guaranteed by Article 19. These rights include freedom of speech and expression, assembly, association, movement, residence, and profession.

• No Separate Order Required: The suspension of Article 19 rights is automatic and does not require a separate Presidential Order. They are revived automatically once the emergency ceases.

• Judicial Review: Laws made and executive actions taken during this period cannot be challenged on the ground that they violate Article 19.

• Impact of 44th Amendment Act, 1978: This amendment limited the scope of Article 358 by specifying that Article 19 can only be suspended during an external emergency (war or external aggression), not an internal emergency (armed rebellion).

Article 359: Suspension of Enforcement of other Fundamental Rights

• Scope of Application: Article 359 is broader as it applies during both an External Emergency (war or external aggression) and an Internal Emergency (armed rebellion).

• Requires Presidential Order: Unlike Article 358, Article 359 does not automatically suspend any Fundamental Rights. It empowers the President to issue an order specifying which Fundamental Rights (except Articles 20 and 21) will have their enforcement suspended during the emergency.

• Specific Rights Suspended: The Presidential Order must specify the Fundamental Rights whose enforcement is to be suspended. The suspension is not for all Fundamental Rights but only those mentioned in the order.

• Enforcement, not the Right Itself: Article 359 suspends the enforcement of the specified Fundamental Rights, meaning individuals cannot approach the courts to enforce those rights. The rights themselves are not suspended but their judicial remedy is.

• Duration and Scope: The order may extend to the whole or any part of the territory of India and remains in force for the period of the emergency or for a shorter period specified in the order.

• Non-Suspendable Rights (Articles 20 and 21): A crucial aspect, introduced by the 44th Amendment Act, 1978, is that the enforcement of Article 20 (protection in respect of conviction for offences) and Article 21 (protection of life and personal liberty) cannot be suspended under any circumstances, even during an emergency. This safeguards basic human rights even in times of national crisis.