Fundamental Rights During Emergency in India: Articles 358 and 359

Introduction

The Indian Constitution allows certain restrictions on Fundamental Rights during a National Emergency, but these powers are subject to constitutional safeguards. Articles 358 and 359 explain how a National Emergency affects Fundamental Rights and the right to approach courts for their enforcement. The Emergency of 1975–1977 exposed serious weaknesses in these safeguards and led to important constitutional changes, particularly through the 44th Constitutional Amendment Act, 1978.

Meaning of Fundamental Rights During Emergency

Fundamental Rights are basic rights guaranteed by Part III of the Indian Constitution. They protect individual liberty, equality, dignity and freedom against unjustified State action.

During a National Emergency under Article 352, the Constitution permits certain changes to the enforcement or operation of Fundamental Rights. However, a National Emergency does not automatically suspend all Fundamental Rights.

The Constitution mainly uses two provisions to regulate the effect of a National Emergency on Fundamental Rights:

• Article 358: Deals with the effect of a National Emergency on the freedoms guaranteed by Article 19.
• Article 359: Allows the President to suspend the right to approach courts for enforcement of specified Fundamental Rights, subject to constitutional restrictions.

Articles 20 and 21 receive special protection: the President cannot suspend the right to approach courts for enforcement of these rights under Article 359.

These provisions apply to a National Emergency under Article 352. President's Rule under Article 356 and Financial Emergency under Article 360 do not, by themselves, suspend Fundamental Rights.

How a National Emergency Affects Fundamental Rights

Article 358: Suspension of Article 19 Freedoms

Article 358 deals with the freedoms guaranteed under Article 19, including freedom of speech and expression, peaceful assembly, association, movement, residence and profession or occupation, subject to the restrictions permitted by the Constitution.

Article 19 is automatically affected under Article 358 only when a National Emergency is declared on the ground of war or external aggression. Article 358 does not apply when the emergency is declared solely on the ground of armed rebellion.

During the period covered by Article 358, the State receives protection for laws and executive action taken under those laws, subject to the conditions specified in the Article. A law relying on this protection must contain a recital stating that it relates to the proclamation of emergency.

This protection is limited. It does not give the government unrestricted power to violate every Fundamental Right, and it does not protect measures unrelated to the emergency.

Article 359: Suspension of the Right to Approach Courts

Article 359 empowers the President to issue an order suspending the right to move a court for enforcement of specified Fundamental Rights during a National Emergency.

The order must identify the rights concerned. It may apply throughout India or to a specified part of the country, and it remains effective for the period stated in the order, subject to the Constitution.

The distinction is important: Article 359 does not itself suspend the Fundamental Rights concerned. It suspends the right to approach courts for their enforcement during the period covered by the order.

The President cannot suspend the right to approach courts for enforcement of Articles 20 and 21.

Protection Under Article 20

Article 20 provides safeguards to people accused of criminal offences. These include protection against retrospective criminal punishment, double jeopardy (being prosecuted and punished more than once for the same offence in the circumstances covered by the Article) and compelled self-incrimination (being forced to give evidence against oneself).

The right to approach courts for enforcement of Article 20 cannot be suspended under Article 359, even during a National Emergency.

Protection Under Article 21

Article 21 states that no person shall be deprived of life or personal liberty except according to procedure established by law.

The right to approach courts for enforcement of Article 21 cannot be suspended under Article 359. This protection is particularly important during emergencies because it safeguards individuals against unlawful deprivation of life or personal liberty.

Effect on Other Fundamental Rights

Fundamental Rights other than Articles 20 and 21 may be affected by a Presidential order under Article 359, but only to the extent specified in that order.

For example, if an order suspends the right to approach courts for enforcement of Article 14, a person may be temporarily prevented from seeking judicial enforcement of that right during the order's operation, subject to its terms and other applicable constitutional protections.

Rights not specified in the order are not covered merely because an emergency has been declared.

The Habeas Corpus Case: Emergency of 1975–1977

Background

During the National Emergency proclaimed in June 1975, the President issued orders under Article 359 that restricted the right to approach courts for enforcement of specified Fundamental Rights. Many people were detained under the Maintenance of Internal Security Act, 1971 (MISA).

Detained persons and their relatives approached various High Courts seeking writs of habeas corpus (a court order requiring a detained person to be brought before the court so that the legality of the detention can be examined).

Several High Courts held that courts could examine whether detention was lawful, including whether the government had acted beyond its legal powers. The Union Government challenged these decisions before the Supreme Court.

Additional District Magistrate, Jabalpur v. Shivkant Shukla (1976)

This case is widely known as the Habeas Corpus Case.

The central question was whether a detained person could approach a court to challenge detention during the Emergency when the President had issued an order under Article 359 suspending the right to seek enforcement of specified Fundamental Rights, including Article 21.

By a majority of four judges to one, the Supreme Court ruled against the detainees. The majority held that, during the relevant Presidential order, a person could not maintain the specified legal proceedings to enforce personal liberty in the manner claimed.

Justice H. R. Khanna dissented. He argued that the right to life and personal liberty was not merely a gift of the Constitution and that the State could not deprive a person of liberty without legal authority.

The majority decision was widely criticised because it gave the executive broad protection during the Emergency and severely limited judicial remedies for unlawful detention.

Legal Position After the 44th Amendment

The 44th Constitutional Amendment Act, 1978 introduced a crucial safeguard by providing that the right to approach courts for enforcement of Articles 20 and 21 cannot be suspended under Article 359.

In Justice K. S. Puttaswamy (Retd.) v. Union of India (2017), the Supreme Court expressly recognised that the majority decision in the Habeas Corpus Case was seriously flawed and overruled it.

The present constitutional position therefore protects the right to approach courts for enforcement of Articles 20 and 21 even during a National Emergency.

Judicial Interpretation of Fundamental Rights During Emergency

Position Before the 44th Amendment

Before the 44th Amendment, the constitutional protection of Fundamental Rights during emergencies was weaker. The decisions in Makhan Singh and the Habeas Corpus Case illustrate how Articles 358 and 359 were interpreted during this period.

Makhan Singh v. State of Punjab (1964)

The Supreme Court examined the effect of a Presidential order under Article 359 during a National Emergency.

The Court explained that when the right to approach courts for enforcement of specified Fundamental Rights is suspended, a person cannot bring a proceeding to enforce those rights during the period covered by the order. However, the order does not automatically prevent every legal challenge to detention or government action. A challenge may still be possible on grounds outside the scope of the suspended rights, depending on the applicable law and the terms of the order.

The case is important because it explains the difference between suspending the enforcement of a Fundamental Right and removing every possible legal remedy.

Arjun Singh v. State of Rajasthan

This decision is cited in discussions of the effect of Presidential orders under Article 359 on individual Fundamental Rights. The governing constitutional principle is that the suspension of the right to approach courts applies only to the rights specified in the Presidential order. A right not included in the order does not become unenforceable merely because another right has been specified.

For examination purposes, the scope of any Article 359 order must therefore be determined by reading the order itself rather than assuming that all Fundamental Rights are suspended together.

Judicial Review of Emergency Proclamations

Minerva Mills Ltd. v. Union of India (1980)

The Supreme Court reaffirmed that judicial review is an essential feature of the Constitution's basic structure (its fundamental constitutional framework).

The case is important to the wider constitutional principle that emergency powers and constitutional amendments cannot place government action entirely beyond judicial scrutiny.

Courts may examine whether constitutional requirements have been followed and whether the relevant power has been exercised in bad faith or on wholly irrelevant grounds. This does not mean that courts can substitute their own assessment for every decision made by the constitutional authorities.

S. R. Bommai v. Union of India (1994)

This landmark case concerned President's Rule under Article 356, rather than the suspension of Fundamental Rights under Articles 358 and 359.

The Supreme Court held that a proclamation under Article 356 is subject to judicial review. The President's power is conditional and must be based on relevant material. A proclamation may be struck down if it is based on bad faith or wholly irrelevant or extraneous grounds.

The judgment is relevant to the broader relationship between emergency powers, federalism and constitutional accountability. However, its specific holdings concern President's Rule and should not be confused with the rules governing a National Emergency under Article 352.

Difference Between Articles 358 and 359

Fundamental Rights and National Security

Emergency provisions raise an important constitutional question: how should the State protect national security without destroying individual liberty?

Fundamental Rights protect human dignity and prevent arbitrary government action. At the same time, the Constitution recognises that war or other serious threats may require exceptional measures.

Emergency powers should therefore be exercised within constitutional limits. Restrictions must have a valid legal basis and remain within the scope of the relevant constitutional provision. The existence of an emergency does not give the government unlimited authority.

The principle of proportionality is also relevant. It requires restrictions on rights, where applicable, to be appropriately connected to a legitimate objective and not go further than necessary. The precise legal test depends on the right and the government action being challenged.

The experience of the 1975–1977 Emergency demonstrates why effective judicial review, parliamentary oversight and clear protection for essential rights are important.

Practical Example

Suppose a National Emergency is declared because of external aggression. The President then issues an order under Article 359 suspending the right to approach courts for enforcement of certain Fundamental Rights, including Article 14.

During the period covered by the order, a person may be unable to approach a court to enforce Article 14 in a proceeding covered by that suspension. However, the order cannot suspend the right to approach courts for enforcement of Articles 20 and 21.

If the emergency is declared solely on the ground of armed rebellion, Article 19 freedoms are not automatically affected under Article 358. A Presidential order under Article 359 may still affect court enforcement of specified rights, subject to the constitutional safeguards.

This example shows why it is necessary to distinguish between the declaration of an emergency, the operation of Article 358 and a separate Presidential order under Article 359.

Summary

• Fundamental Rights are guaranteed under Part III of the Indian Constitution and protect individual liberty, equality and dignity.
• Articles 358 and 359 provide different rules for the effect of a National Emergency on Fundamental Rights.
• Article 358 applies only to emergencies declared on the grounds of war or external aggression and deals with Article 19 freedoms.
• Article 359 permits the President to suspend the right to approach courts for enforcement of specified Fundamental Rights.
• The right to approach courts for enforcement of Articles 20 and 21 cannot be suspended under Article 359.
• In Makhan Singh v. State of Punjab (1964), the Supreme Court explained the scope and limits of a Presidential order under Article 359.
• In ADM Jabalpur v. Shivkant Shukla (1976), the Supreme Court majority ruled against detainees during the Emergency; Justice H. R. Khanna dissented.
• In Justice K. S. Puttaswamy v. Union of India (2017), the Supreme Court expressly rejected the majority reasoning in the Habeas Corpus Case.
• The 44th Constitutional Amendment Act, 1978 protected the right to approach courts for enforcement of Articles 20 and 21.
• Minerva Mills Ltd. v. Union of India (1980) reaffirmed the importance of judicial review as part of the Constitution's basic structure.
• S. R. Bommai v. Union of India (1994) established important safeguards against misuse of President's Rule under Article 356.
• Emergency powers must remain within constitutional limits and cannot be treated as unlimited authority to restrict individual rights.