Question

Which of the following statements are correct about the differences between Articles 358 and 359?

(i) Article 358 applies only to External Emergencies, while Article 359 applies to both External and Internal Emergencies.

(ii) Article 358 automatically suspends Article 19, while Article 359 requires a Presidential Order to suspend specified Fundamental Rights.

(iii) Article 358 allows the suspension of Articles 20 and 21, while Article 359 does not.

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

Answer 1

Answer:

A. (i) and (ii) only

Articles 358 and 359 of the Indian Constitution

• Articles 358 and 359 are crucial provisions under Part XVIII (Emergency Provisions) of the Indian Constitution, dealing with the impact of a National Emergency on Fundamental Rights.

• The President declares a National Emergency under Article 352, which can be based on three grounds: war, external aggression, or armed rebellion.

Article 358: Suspension of Article 19

• Automatic Suspension: Article 358 comes into play automatically the moment a National Emergency is declared, but only if the emergency is proclaimed on the grounds of war or external aggression. It does not apply to an emergency declared due to armed rebellion.

• Scope: It specifically suspends the six Fundamental Rights guaranteed by Article 19 (freedom of speech, assembly, association, movement, residence, and profession).

• Effect: During the operation of Article 358, the state is free to make any law or take any executive action that may abridge or take away the rights guaranteed by Article 19. Any such law or action cannot be challenged in a court of law on the ground that it violates Article 19.

• Duration: Article 19 remains suspended for the entire duration of the National Emergency.

• Key Amendment: The 44th Amendment Act of 1978 restricted the scope of Article 358, stipulating that Article 19 can only be suspended when the National Emergency is declared on the grounds of war or external aggression, and not armed rebellion.

Article 359: Suspension of Enforcement of other Fundamental Rights

• Presidential Order Required: Unlike Article 358, Article 359 does not automatically suspend any Fundamental Right. It requires a Presidential Order to suspend the enforcement of specific Fundamental Rights.

• Scope: This order can suspend the enforcement of any specified Fundamental Rights (except Articles 20 and 21).

• Grounds: Article 359 can be invoked during a National Emergency declared on any of the three grounds: war, external aggression, or armed rebellion.

• Effect: While the enforcement of the specified rights is suspended, the rights themselves are not suspended. However, during this period, no person can move any court for their enforcement.

• Duration: The Presidential Order specifies the period for which the enforcement of the rights is suspended, which can be for the entire or a shorter duration of the emergency. The order also needs to be laid before each House of Parliament for approval.

• Non-suspension of Articles 20 and 21: A crucial aspect, also introduced by the 44th Amendment Act of 1978, is that the enforcement of Article 20 (protection in respect of conviction for offences) and Article 21 (protection of life and personal liberty) can never be suspended, even during a National Emergency.

Key Differences Summarized:

• Grounds of Application:
  

  • Article 358: Applies only to National Emergency declared due to war or external aggression.

  • Article 359: Applies to National Emergency declared due to war, external aggression, or armed rebellion.

• Automatic vs. Presidential Order:
  

  • Article 358: Automatically suspends Article 19.

  • Article 359: Requires a Presidential Order to suspend the enforcement of specified Fundamental Rights.

• Rights Affected:
  

  • Article 358: Suspends only Article 19.

  • Article 359: Can suspend the enforcement of any Fundamental Right except Articles 20 and 21.

• Nature of Suspension:
  

  • Article 358: Suspends Article 19 itself.

  • Article 359: Suspends only the enforcement of Fundamental Rights, not the rights themselves.

• Legal Recourse:
  

  • Article 358: Any law made or executive action taken during its operation cannot be challenged for violating Article 19.

  • Article 359: Laws made under this provision are immune from challenge. However, once the Presidential Order ceases to operate, a person can seek remedies for executive actions that violated the Fundamental Rights during the period of suspension.