Question

Regarding suspension of Fundamental Rights during Emergency, which are correct?

1. Article 358 suspends the six Fundamental Rights in Article 19 automatically only during emergencies due to war or external aggression.

2. Article 359 can suspend enforcement of fundamental rights only during Financial Emergency.

3. Neither Article 358 nor Article 359 suspends enforcement of Articles 20 and 21.

• A. 1 and 3 only
• B. 1, 2, and 3
• C. 2 and 3 only
• D. 1 only

Answer 1

Answer:

A. 1 and 3 only

Emergency Provisions and Fundamental Rights

• The Indian Constitution provides for special provisions for emergencies to safeguard the sovereignty, unity, integrity, and security of the country, the democratic political system, and the Constitution.
• These provisions are contained in Part XVIII of the Constitution, from Article 352 to 360.
• The Constitution stipulates three types of emergencies:
  • National Emergency (Article 352): Declared due to war, external aggression, or armed rebellion.
  • State Emergency / President's Rule (Article 356): Declared due to the failure of constitutional machinery in a state.
  • Financial Emergency (Article 360): Declared due to a threat to India's financial stability or credit.

Suspension of Fundamental Rights during National Emergency

• The impact of a National Emergency on Fundamental Rights is specifically addressed by Articles 358 and 359.

Article 358: Suspension of Article 19

• Automatic Suspension: According to Article 358, when a Proclamation of National Emergency is made on the grounds of war or external aggression, the six Fundamental Rights guaranteed by Article 19 are automatically suspended.
• Grounds Matter: If the National Emergency is declared on the ground of armed rebellion, Article 19 is not automatically suspended. This distinction was introduced by the 44th Amendment Act of 1978.
• Scope: Article 358 only suspends Article 19. It does not suspend any other Fundamental Rights.
• Effect: While Article 358 is in operation, the state can make any law or take any executive action that it could not have done in the absence of Article 19. Any such law or action cannot be challenged on the ground that it is inconsistent with Article 19.

Article 359: Suspension of Enforcement of other Fundamental Rights

• Presidential Order: Article 359 empowers the President to suspend the right to move any court for the enforcement of such Fundamental Rights (except Articles 20 and 21) as mentioned in the Presidential Order.
• Not Automatic: Unlike Article 358, the suspension under Article 359 is not automatic. It requires a specific Presidential Order to specify which rights (excluding 20 and 21) are to be suspended and for what period.
• Applicability: It applies to a National Emergency declared on any of the three grounds (war, external aggression, or armed rebellion).
• Crucial Exception: The 44th Amendment Act of 1978 specifically mandates that the enforcement of Articles 20 (protection in respect of conviction for offences) and 21 (protection of life and personal liberty) cannot be suspended under any circumstances, even during a National Emergency. This is a significant safeguard for individual liberties.
• Effect: While a Presidential Order under Article 359 is in force, the state can make any law or take any executive action that it could not have done if the specified Fundamental Rights were in force.

Key Takeaways for Competitive Exams

1. Article 358 vs. Article 359: Article 358 suspends Article 19 automatically (only for war/external aggression), while Article 359 suspends the enforcement of other specified rights (except 20 & 21) by a Presidential Order (for all grounds of National Emergency).
2. 44th Amendment Act, 1978: This amendment significantly curtailed the powers of the executive during an emergency by:
   • Restricting the automatic suspension of Article 19 to only war and external aggression.
   • Protecting Articles 20 and 21 from suspension under Article 359.
   • Replacing 'internal disturbance' with 'armed rebellion' as a ground for National Emergency.
3. Financial Emergency (Article 360): This type of emergency primarily deals with financial stability and does not involve the suspension of Fundamental Rights as per Articles 358 or 359.
4. Articles 20 and 21: These are considered the most basic human rights and remain sacrosanct even during an emergency, reflecting India's commitment to basic human dignity and due process.