The Constitution provides special rules governing the operation and enforcement of Fundamental Rights during a National Emergency.
The most important provisions are:
Article 358 → Suspension of Article 19
Article 359 → Suspension of the right to move courts for enforcement of specified Fundamental Rights
The 44th Constitutional Amendment Act, 1978 significantly changed these provisions to strengthen protection of individual liberty.
A National Emergency is proclaimed under:
Article 352
It may be proclaimed on grounds of:
The effect of an Emergency on Fundamental Rights depends on:
Article 358 + Article 359
Article 358 deals specifically with:
Article 19
During a National Emergency declared on the grounds of:
War or external aggression
the six freedoms under Article 19 are affected according to Article 358.
The 44th Amendment changed Article 358 significantly.
Article 19 is not automatically suspended during an Emergency declared on the ground of:
Armed rebellion
Therefore:
War / External aggression → Article 358 applies
Armed rebellion → Article 19 is not automatically suspended
When Article 358 operates, the State may make laws or take executive action that would otherwise be inconsistent with Article 19, subject to the constitutional conditions of Article 358.
However, such protection applies only to measures connected with the Emergency situation as constitutionally required.
After the 44th Amendment, the protection under Article 358 applies only to laws containing a:
Recital
indicating that the law contains a declaration that it is related to the Proclamation of Emergency.
This prevents the Emergency power from being used as a blanket justification for unrelated laws.
Article 359 operates differently.
It empowers the:
President
to declare that the right to move any court for enforcement of specified Fundamental Rights shall be suspended during the period specified in the Presidential Order.
The Fundamental Rights themselves are not necessarily erased.
Rather:
The right to seek judicial enforcement is suspended
for the specified rights and period.
The President can issue an order under Article 359 only when:
A Proclamation of Emergency is in operation.
The order must specify:
The:
44th Constitutional Amendment Act, 1978
provided that the right to move courts for enforcement of:
Article 20
and:
Article 21
cannot be suspended under Article 359.
This is one of the most important Emergency-related protections.
Article 20 protects against:
Its enforcement cannot be suspended under Article 359.
Article 21 protects:
Life and personal liberty
Its enforcement also cannot be suspended under Article 359.
This was a major constitutional safeguard introduced after the Emergency experience of 1975–77.
This distinction is extremely important for UPSC.
Deals with:
Article 19
It operates automatically when the constitutional conditions are satisfied.
Deals with:
Right to move courts for enforcement of specified Fundamental Rights
It requires:
Presidential Order
Under Article 358, the constitutional operation of Article 19 is affected according to the provision.
Therefore:
Article 358 → Article 19 itself
Whereas:
Article 359 → Right to approach courts for enforcement
This distinction is a common UPSC trap.
The President can specify the Fundamental Rights whose enforcement is suspended.
Therefore:
Not every Fundamental Right is automatically affected.
Furthermore:
Articles 20 and 21 cannot have their enforcement suspended under Article 359.
| Article 358 | Article 359 |
|---|---|
| Deals with Article 19 | Deals with enforcement of specified Fundamental Rights |
| Applies automatically when conditions are satisfied | Requires Presidential Order |
| Relevant to Emergency on war/external aggression | Operates during Proclamation of Emergency |
| Affects operation of Article 19 | Suspends right to move courts for specified rights |
| Limited by 44th Amendment | Articles 20 and 21 protected |
Before the:
44th Amendment
Article 19 could be affected during a National Emergency more broadly.
After the amendment:
Article 19 is affected under Article 358 only when Emergency is declared on:
War or external aggression
not:
Armed rebellion
Articles 20 and 21 have special protection.
Even during a National Emergency:
The right to move courts for enforcement of Articles 20 and 21 cannot be suspended under Article 359.
This is a major constitutional safeguard.
The Emergency of:
1975–1977
highlighted concerns regarding:
The 44th Amendment therefore strengthened constitutional safeguards.
Important changes include:
Emergency powers are not completely beyond judicial scrutiny.
Courts can examine constitutional questions concerning:
The Basic Structure Doctrine also protects:
Judicial review
as a fundamental constitutional principle.
The:
ADM Jabalpur v. Shivkant Shukla
case is one of the most controversial judgments associated with the Emergency.
The Supreme Court considered whether a person could approach the courts for protection of personal liberty when the enforcement of Article 21 had been suspended.
The majority adopted a highly restrictive approach.
The Emergency-era approach in ADM Jabalpur has been strongly discredited.
The constitutional position was subsequently strengthened through the:
44th Amendment
which protects enforcement of Articles:
20 and 21
from suspension under Article 359.
The Supreme Court later expressly recognised the error in ADM Jabalpur.
In:
K.S. Puttaswamy v. Union of India — 2017
the Supreme Court expressly recognised the incorrectness of the reasoning in:
ADM Jabalpur
The judgment reaffirmed the central importance of:
The constitutional framework can be remembered as:
Article 352
↓
National Emergency
↓
Article 358
→ Article 19
Article 359
→ Right to move courts for specified Fundamental Rights
↓
44th Amendment
→ Stronger protection for Articles 20 and 21
Article 358 can also protect certain executive action taken under the constitutional conditions associated with the Emergency.
However, the action must fall within the constitutional framework and be connected with the Emergency as required.
Therefore, Emergency powers do not create unlimited executive authority.
Similarly, Parliament and State Legislatures may exercise certain legislative powers during Emergency subject to the Constitution.
Article 358 provides a specific constitutional protection relating to Article 19.
Article 359 affects the judicial enforcement mechanism for specified Fundamental Rights.
Do not confuse:
Suspension of a Fundamental Right
with:
Suspension of the right to seek judicial enforcement.
Article 359 primarily concerns:
Right to move courts
for enforcement of specified Fundamental Rights.
This distinction is essential.
Article 352
Article 19
Right to move courts for enforcement of specified Fundamental Rights
War or external aggression
after the 44th Amendment.
Armed rebellion
Requires:
Presidential Order
Article 20 + Article 21
44th Constitutional Amendment Act, 1978
"Article 358 suspends all Fundamental Rights during Emergency."
False
It specifically concerns:
Article 19
and operates subject to its constitutional conditions.
"Article 358 applies to every type of National Emergency."
False
After the 44th Amendment, it applies when Emergency is declared on:
War or external aggression
"Article 359 automatically suspends Fundamental Rights."
False
It concerns the:
Right to move courts
and requires a Presidential Order specifying the relevant rights.
"Articles 20 and 21 can have their enforcement suspended during Emergency."
False
After the 44th Amendment, their enforcement cannot be suspended under Article 359.
"Article 358 requires a Presidential Order."
False
Article 358 operates automatically when its constitutional conditions are satisfied.
"Article 359 applies only to Article 19."
False
Article 359 can relate to specified Fundamental Rights, subject to the constitutional exclusion of Articles 20 and 21.
"ADM Jabalpur remains the current position."
False
Its approach has been discredited, and the Supreme Court later recognised its error.
"How did the 44th Constitutional Amendment strengthen the protection of Fundamental Rights during a National Emergency?"
The Emergency provisions of the Constitution permit temporary restrictions on certain aspects of Fundamental Rights and their enforcement. The 44th Amendment significantly strengthened safeguards against misuse of Emergency powers.
Article 358
→ Article 19
→ Limited to war/external aggression
Article 359
→ Suspension of right to move courts for specified rights
→ Presidential Order required
44th Amendment
→ Articles 20 and 21 protected
→ Article 19 protection strengthened
ADM Jabalpur
→ Restrictive Emergency-era approach
Puttaswamy
→ Recognised the error in ADM Jabalpur
The post-44th Amendment framework attempts to ensure that even during extraordinary constitutional circumstances, core protections of life and personal liberty remain judicially enforceable.
National Emergency
↓
Ground:
War / External Aggression
↓
Article 19 affected
National Emergency
↓
President's Order
↓
Right to move courts for enforcement of:
Specified Fundamental Rights
↓
But:
Article 20 + Article 21 cannot be included
Article 19
→ Emergency protection narrowed to war/external aggression
Articles 20 + 21
→ Enforcement cannot be suspended
Article 358 = Article 19
Article 359 = Right to move courts
Article 20 + Article 21 = Cannot be suspended under Article 359
44th Amendment, 1978 = Stronger Fundamental Rights protection during Emergency
