Under Article 359, the President of India is authorised to suspend the right to move any court for the enforcement of Fundamental Rights during a National Emergency by order. Rationale behind suspension of fundamental rights during an emergency is to protect national security and to prevent unnecessary chaos. In this article, we will discuss the Suspension of Fundamental Rights During Emergency topic in great detail.

Concept of Fundamental Rights

• The Indian Constitution bestows fundamental rights on every Indian citizen, which are enshrined in Part III (Articles 12 to 35) of the Indian Constitution.
• Fundamental rights are essential in nature because they are the foundation for an individual to develop into an independent, intellectual, responsible, moral, and spiritually developed citizen.
• Originally, the Constitution established seven Fundamental Rights, namely,
  • Right to equality (Articles 14–18)
  • Right to freedom (Articles 19–22)
  • Right against exploitation (Articles 23–24)
  • Right to freedom of religion (Articles 25–28)
  • Cultural and educational rights (Articles 29–30)
  • Right to property (Article 31)
  • Right to constitutional remedies (Article 32)
• The right to property, however, was removed from the list of Fundamental Rights by the 44th Amendment Act of 1978.
• Article 300-A of Part XII of the Constitution establishes it as a legal right.
• As a result, there are currently only six Fundamental Rights.

Are the Fundamental Rights Absolute

• Fundamental rights are not absolute because their scope and limitations are clearly defined.
• The limitations imposed are in the interest of the public good, social reforms, public order, morality, and the state's safety.
• The state is allowed by the constitution to impose 'reasonable restrictions' on certain rights, but the 'reasonability' of the restrictions is a justiciable issue.

When Fundamental Rights can be suspended?

Suspension of Fundamental Rights under Article 19

• When a proclamation of national emergency is issued, the six Fundamental Rights enshrined in Article 19 are automatically suspended, according to Article 358.
• There is no need for a separate order to suspend them.
• The state is exempt from the restrictions imposed by Article 19 while a proclamation of national emergency is in effect.
• In other words, the state has the authority to enact any law or take any executive action that restricts or eliminates the six Fundamental Rights guaranteed by Article 19.
• Any such law or executive action cannot be challenged on the basis that it violates the six Fundamental Rights guaranteed by Article 19.
• When the National Emergency ends, Article 19 automatically reactivates and enters into force.
• Any law enacted during the Emergency that is in conflict with Article 19 is null and void.
• However, no remedy exists for anything done during the Emergency, even after it has ended.
• This means that legislative and executive actions taken during the emergency cannot be challenged after the emergency has ended.
• The scope of Article 358 was limited in two ways by the 44th Amendment Act of 1978.
  • The six Fundamental Rights enshrined in Article 19 can be suspended only when the National Emergency is declared due to war or external aggression, rather than armed rebellion.
  • Only laws related to the Emergency are protected from being challenged, not other laws.
    • Furthermore, only executive action taken in accordance with such a law is protected.

Suspension of other Fundamental Rights

• During a National Emergency, Article 359 allows the president to suspend the right to petition any court for the enforcement of Fundamental Rights.
• This means that, under Article 359, the Fundamental Rights are not suspended in their entirety, but only their enforcement.
• The rights mentioned are theoretically alive, but the right to seek redress is suspended.
• The suspension of enforcement only applies to the Fundamental Rights specified in the Presidential Order.
• Furthermore, the suspension could be for the duration of the emergency or for a shorter period specified in the order, and the suspension order could apply to the entire country or to any part of it.
• It should be presented for approval to each House of Parliament.
• While a Presidential Order is in effect, the State may enact any law or take any executive action that restricts or eliminates the specified Fundamental Rights.
• Any such law or executive action cannot be challenged on the basis that it violates the specified Fundamental Rights.
• When the Order expires, any law enacted as a result loses its force to the extent that it is inconsistent with the specified Fundamental Rights.
• However, no remedy exists for anything done while the order is in effect, even if the order is no longer in effect.
• This means that legislative and executive actions taken while the Order is in effect cannot be challenged even after the Order has expired.
• The scope of Article 359 was limited in two ways by the 44th Amendment Act of 1978.
  • The President cannot suspend the right to petition the Court for the enforcement of fundamental rights guaranteed by Articles 20–21.
    • In other words, even during an emergency, the right to protection from criminal prosecution (Article 20) and the right to life and personal liberty (Article 21) remain enforceable.
  • Only laws related to the emergency are protected from challenge, not other laws, and only executive action taken under such a law is protected.

Related Constitutional Provisions

• Articles 358 and 359 describe how a National Emergency affects Fundamental Rights.
• Article 358 addresses the suspension of Fundamental Rights guaranteed by Article 19.
• Article 359 addresses the suspension of other Fundamental Rights (except those guaranteed by Articles 20 and 21).

Difference Between Articles 358 and 359

Criticism

• The suspension of their enforcement (except for Articles 20 and 21) during the period of National Emergency is another blemish on the efficacy of these rights.
• This provision strikes at the heart of the country's democratic system, putting the rights of millions of innocent people in constant jeopardy.
• According to critics, Fundamental Rights should be enjoyed in all circumstances–emergency or not.

Related SC Judgements and Constitutional Amendments

ADM Jabalpur v. Shiv Kant Shukla

Facts

• The right to life and liberty is guaranteed by Article 21 of the Constitution.
• During an internal emergency, the right to go to court to enforce Article 21 was suspended under Article 359 of the Constitution (1975-77).
• In this case, the Presidential Order referred to was one issued during the Emergency declaring that the right of any person to move any Court for any enforcement of the rights conferred by Articles 14, 21, and 22 of the Constitution, as well as all proceedings pending in any Court for the enforcement of the aforementioned rights, shall be suspended for the duration of the Proclamation of Emergency.

Judgment

• The Supreme Court rejected the Respondents' arguments and held that Article 21 of the Constitution was the sole repository of the right to life and liberty, and thus its suspension implied that all remedies protecting this right under any other law would also be suspended.
• The Court denied all available remedies to the detainees on the grounds that any challenge to the detention order for the enforcement of the right to personal liberty under Article 21 could not be made because the presidential order suspending it was in effect.
• The majority also held that the order of detention could not be challenged on any other grounds, even if the detention order was issued in error, leaving the detainee with no recourse even if the detention was illegal.

However, after the 44th constitutional amendment, Article 21 of the Constitution, which guarantees the right to life and liberty, cannot be suspended. Even during an emergency, the 44th Constitutional Amendment Act, which was unanimously passed, ensured it.

Conclusion

It is essential that such suspensions are executed with the utmost caution and oversight to prevent abuse of power and ensure that the rights and liberties of citizens are restored as swiftly as possible once the emergency subsides. The temporary suspension of rights must always be viewed as a last resort, with the aim of preserving the broader democratic framework and constitutional integrity of the nation.

FAQs 

MCQs

1. Which article allows the automatic suspension of Fundamental Rights under Article 19 during a National Emergency?

A. Article 352
B. Article 358
C. Article 359
D. Article 356

Answer: (B) See the Explanation

2. Which Fundamental Rights cannot be suspended during an Emergency after the 44th Constitutional Amendment?

A. Article 14 and Article 16
B. Article 19 and Article 22
C. Article 20 and Article 21
D. Article 25 and Article 32

Answer: (C) See the Explanation

3. Under which article can the President suspend the right to move courts for the enforcement of Fundamental Rights during an Emergency?

A. Article 352
B. Article 356
C. Article 358
D. Article 359

Answer: (D) See the Explanation

4. Which case reaffirmed that the basic structure of the Constitution cannot be altered even during an Emergency?

A. Golaknath case
B. Kesavananda Bharati case
C. A.K. Gopalan case
D. Minerva Mills case

Answer: (B) See the Explanation

5. What is the primary difference between Article 358 and Article 359 during an Emergency?

A. Article 358 applies to war and external aggression, while Article 359 applies to all emergencies
B. Article 358 suspends Article 21, while Article 359 suspends Article 19
C. Article 358 automatically suspends Article 19 rights, while Article 359 allows the suspension of other Fundamental Rights
D. Article 358 applies only to financial emergencies

Answer: (C) See the Explanation

GS Mains Questions and Model Answers

Q1: Discuss the impact of Emergency provisions on Fundamental Rights in India. How do Articles 358 and 359 regulate the suspension of these rights?

Answer: Emergency provisions in India grant the central government the authority to suspend certain Fundamental Rights to maintain national security and public order. Article 358 allows for the automatic suspension of Article 19 rights during an Emergency declared due to war or external aggression. In contrast, Article 359 empowers the President to suspend the enforcement of other Fundamental Rights during an Emergency, except for Articles 20 and 21 (after the 44th Amendment). These provisions, while necessary for national security, can lead to the erosion of civil liberties if misused, as seen during the 1975 Emergency.

Q2: Evaluate the significance of the 44th Constitutional Amendment in protecting Fundamental Rights during an Emergency.

Answer: The 44th Constitutional Amendment (1978) was a critical reform aimed at safeguarding Fundamental Rights during an Emergency. It was introduced in response to the excesses of the 1975 Emergency, during which Articles 20 and 21 were suspended, leading to violations of civil liberties. The amendment ensured that the right to life and personal liberty (Articles 20 and 21) could not be suspended, even during a National Emergency. This amendment strengthened the protection of individual rights and served as a check on the arbitrary use of emergency powers by the executive.

Q3: Analyze the role of the judiciary in safeguarding Fundamental Rights during an Emergency in India.

Answer: The judiciary plays a vital role in safeguarding Fundamental Rights during an Emergency through the mechanism of judicial review. Although the right to move courts for the enforcement of certain rights can be suspended under Article 359, the judiciary can still review the legality of the proclamation of Emergency and actions taken by the government. The Kesavananda Bharati and Minerva Mills cases established that the basic structure of the Constitution, including judicial review, cannot be altered even during an Emergency. This ensures that the executive cannot misuse emergency powers to undermine constitutional principles and individual freedoms.

Previous Year Questions on Suspension of Fundamental Rights during Emergency

1. UPSC CSE Prelims 2018

Question: Which article of the Constitution allows for the suspension of the enforcement of Fundamental Rights during an Emergency?
A. Article 358
B. Article 356
C. Article 359
D. Article 352

Answer: C

Explanation: Article 359 allows the President to suspend the right to move courts for the enforcement of certain Fundamental Rights during an Emergency.

2. UPSC CSE Mains 2020 (GS Paper 2)

Question: Discuss the constitutional provisions regarding the suspension of Fundamental Rights during an Emergency in India. How have these provisions evolved after the 44th Constitutional Amendment?

Explanation: The Emergency provisions in the Constitution allow for the suspension of Fundamental Rights to maintain national security. Article 358 automatically suspends Article 19 rights during an Emergency, while Article 359 allows the President to suspend the enforcement of other rights, except Articles 20 and 21. The 44th Amendment introduced significant reforms by preventing the suspension of Articles 20 and 21, even during an Emergency. This amendment was a response to the 1975 Emergency, where the suspension of these rights led to abuses of power. The amendment ensured better protection of individual liberties during future emergencies.

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