Question

Choose the correct statement(s) regarding the suspension of Fundamental Rights during a National Emergency.

(i) Article 358 automatically suspends the six Fundamental Rights under Article 19 when a National Emergency is declared.

(ii) Article 359 allows the President to suspend the enforcement of all Fundamental Rights, including Articles 20 and 21.

(iii) The 44th Amendment Act of 1978 ensured that laws unrelated to the emergency can be challenged for violating Fundamental Rights.

• A. (i) and (iii) only
• B. (ii) and (iii) only
• C. (i) and (ii) only
• D. All are true

Answer 1

Answer:

A. (i) and (iii) only

Understanding the Suspension of Fundamental Rights during National Emergency

• The Indian Constitution provides for emergency provisions in Part XVIII (Articles 352 to 360), which enable the Central government to handle extraordinary situations effectively.
• These provisions transform the federal structure into a unitary one without formal amendment, highlighting the strong central bias during such periods.

Article 358: Suspension of Fundamental Rights under 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. This suspension is effective for the duration of the emergency.
• No Separate Order: No separate order from the President is required for the suspension of Article 19 rights under Article 358. They cease to operate on their own.
• 44th Amendment Act (1978): This significant amendment added a crucial safeguard. Article 358 now only suspends Article 19 when the National Emergency is declared due to 'war' or 'external aggression'. It does not suspend Article 19 when the emergency is declared on the ground of 'armed rebellion'.
• During the suspension of Article 19, the State can make any law or take any executive action that would otherwise be inconsistent with Article 19.

Article 359: Suspension of Enforcement of other Fundamental Rights

• Presidential Power: Article 359 empowers the President to suspend the right to move any court for the enforcement of Fundamental Rights (except those under Articles 20 and 21) by an order. This means that while the rights themselves are not suspended, their enforcement through courts is halted.
• Specific Rights: The President's order specifies which Fundamental Rights' enforcement is suspended. This suspension is not automatic and requires a Presidential Order.
• Articles 20 and 21 Protected: The 44th Amendment Act of 1978 made a critical change by providing that the enforcement of Fundamental Rights guaranteed by Article 20 (Protection in respect of conviction for offences) and Article 21 (Protection of life and personal liberty) cannot be suspended during a National Emergency under any circumstances.
• The Presidential Order under Article 359 must be laid before each House of Parliament for approval.

Impact of 44th Amendment Act of 1978 on Emergency Provisions

• The 44th Amendment Act, 1978, enacted after the excesses of the 1975 Emergency, brought in several safeguards to prevent misuse of emergency powers.
• One key provision was that it restricted the scope of Article 358 and Article 359 to ensure that Fundamental Rights are not arbitrarily suspended.
• It explicitly states that during a National Emergency, only those laws which are related to the emergency can be protected from being challenged in court for violating Fundamental Rights. Laws or executive actions that are unrelated to the emergency can still be challenged if they infringe upon Fundamental Rights. This prevents the government from enacting unrelated oppressive laws under the guise of an emergency.
• It also replaced the term "internal disturbance" with "armed rebellion" as a ground for declaring a National Emergency, making it harder to declare an emergency based on subjective criteria.