Article 359

Background and evolution

The framers included emergency powers to protect the country during war, external aggression or internal disturbance. Article 358 automatically suspends Article 19 during a National Emergency declared on grounds of war or external aggression, while Article 359 allows the President to suspend the enforcement of other rights by order.

These powers were used during the emergencies of 1962 (China war), 1971 (Pakistan war) and 1975–77 (internal disturbance). During the 1975 Emergency, the President suspended the right to move courts for enforcement of Articles 14, 21 and 22. In ADM Jabalpur v. Shivkant Shukla (1976), the Supreme Court held by a 4:1 majority that detainees could not seek habeas corpus during the suspension, even if detention was illegal or mala fide. Justice H. R. Khanna dissented. The Janata government's 44th Amendment of 1978 then barred suspension of Articles 20 and 21.

Key features and provisions

• Presidential order: specifies the rights whose enforcement is suspended and the duration, which may be for the whole emergency or a shorter period.
• Territorial scope: may extend to the whole of India or any part.
• Rights excluded: Articles 20 (protection in respect of conviction) and 21 (life and personal liberty) cannot be suspended.
• Effect: only the remedy of moving courts is suspended; the rights themselves continue to exist.
• Laws protected: laws or executive actions inconsistent with the suspended rights cannot be challenged during the suspension, but only if they relate to the emergency (44th Amendment).
• Parliamentary approval: the order must be laid before each House.
• Article 358 vs 359: Article 358 suspends Article 19 automatically only for war or external aggression; Article 359 requires a presidential order and covers other rights.