Question

Which of the following is/are correct about the scope and application of Articles 358 and 359?

1. Article 358 automatically suspends Article 19 fundamental rights during a National Emergency declared on the grounds of war or external aggression.

2. Article 359 empowers the President to suspend enforcement of Fundamental Rights during both external and internal emergencies.

3. Article 359 allows suspension of enforcement of right to life and personal liberty (Article 21).

• A. 1 and 2 only
• B. 2 and 3 only
• C. 1 only
• D. All are correct

Answer 1

Answer:

A. 1 and 2 only

Emergency Provisions: Articles 358 and 359

• The Constitution of India provides for emergency provisions in Part XVIII (Articles 352 to 360) to enable the Union Government to meet any extraordinary situation effectively. These provisions convert the federal structure into a unitary one without a formal amendment.

Article 358: Suspension of Article 19 during an Emergency

• Article 358 deals specifically with the suspension of the fundamental rights guaranteed by Article 19 of the Constitution.

• Automatic Suspension: When a National Emergency is proclaimed on the grounds of war or external aggression, Article 358 automatically suspends the six fundamental rights enumerated in Article 19.

• No Separate Order Required: The suspension of Article 19 rights by Article 358 does not require a separate Presidential Order. It comes into effect automatically with the declaration of the National Emergency.

• Scope of Laws: During such an emergency, the state is free to make any law or take any executive action that it could not have made or taken in normal times, even if such law or action abridges or takes away the rights guaranteed by Article 19.

• Impact of 44th Amendment Act (1978): This crucial amendment restricted the scope of Article 358. It now provides that Article 19 can only be suspended when the National Emergency is declared on the grounds of war or external aggression, and not on the ground of armed rebellion.

• Legislative Immunity: Laws made during the operation of Article 358, which infringe upon Article 19 rights, cannot be challenged after the emergency ceases to operate. However, any executive action taken under such laws can be challenged if it is not related to the emergency.

Article 359: Suspension of Enforcement of other Fundamental Rights

• Article 359 deals with the suspension of the enforcement of fundamental rights (other than Article 19) by a Presidential Order.

• Presidential Order Required: Unlike Article 358, Article 359 does not automatically suspend any fundamental rights. It empowers the President to issue an order declaring that the right to move any court for the enforcement of such of the fundamental rights (as may be mentioned in the order) shall remain suspended during the period of emergency.

• Broad Applicability: This suspension can occur during a National Emergency declared on the grounds of war, external aggression, or armed rebellion (i.e., both external and internal emergencies).

• Suspension of Enforcement, Not Rights Themselves: It is important to note that Article 359 suspends the enforcement of fundamental rights, not the rights themselves. The rights technically remain in existence, but their judicial remedy is suspended.

• Impact of 44th Amendment Act (1978): This amendment made a significant change, stipulating 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 by a Presidential Order under Article 359 under any circumstances.

• Parliamentary Approval: Every such Presidential Order must be laid before each House of Parliament for approval.

• Indemnity: Laws made during the operation of a Presidential Order under Article 359 cannot be challenged in a court of law even after the emergency ceases, and no remedy is available for any action taken under such laws.