Part XVIII - Emergency • Article

Article 359 Simplified: Suspension of the enforcement of the rights conferred by Part III during emergencies

Article 359 allows the President to suspend the right to approach courts to enforce other Fundamental Rights during a National Emergency (but the enforcement of Articles 20 and 21 can never be suspended or omitted).

Official Text

(1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of [the rights conferred by Part III (except articles 20 and 21)] as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. [(1A) While an order made under clause (1) mentioning any of [the rights conferred by Part III (except articles 20 and 21)] is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect:] [Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation.]. Added by the Constitution (Forty-second Amendment) Act, 1976, s. 53 (w.e.f. 3-1-1977). MERGENCY P ROVISIONS ) [(1B) Nothing in clause (1A) shall apply- (a) to any law which does not contain a recital to the effect that such law is in relation to the Proclamation of Emergency in operation when it is made; or (b) to any executive action taken otherwise than under a law containing such a recital.] (2) An order made as aforesaid may extend to the whole or any part of the territory of India: [Provided that where a Proclamation of Emergency is in operation only in a part of the territory of India, any such order shall not extend to any other part of the territory of India unless the President, being satisfied that the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation, considers such extension to be necessary.] (3) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament.

Simple Meaning

Explain Like Ten

During an emergency, the President can declare that people cannot go to court to demand certain fundamental rights. However, the President can NEVER stop people from going to court to protect their right to life and safety (Articles 20 and 21).

Student Mode

Empowers the President to suspend the right to move any court for the enforcement of designated Fundamental Rights during a National Emergency. Unlike Article 358 (which suspends Article 19 automatically), Article 359 does not suspend the rights themselves, but rather their judicial enforcement. Crucially, the 44th Amendment (1978) amended Article 359 to prohibit the suspension of the enforcement of Article 20 (protection against ex-post facto laws/double jeopardy) and Article 21 (Right to Life and Liberty).

Example

During a war, the government might suspend the right to protest (Art 19), but they still cannot take away your life without a fair legal reason (Art 21).

Key Takeaway

Most rights can be paused in an emergency, but your right to life is absolute.

FAQs

How do Article 358 and Article 359 differ?

Article 358 applies only to Article 19, suspending the rights automatically during external emergencies. Article 359 applies to all fundamental rights (except Articles 20 and 21) via a specific presidential order, suspending the right to approach courts for enforcement, and can apply to both external and internal emergencies.

Can the right to file a habeas corpus petition be suspended during an emergency?

No. Prior to 1978, in the infamous ADM Jabalpur (1976) case, the Supreme Court ruled that habeas corpus could be suspended. To correct this, the 44th Amendment amended Article 359 to make Articles 20 and 21 non-suspendable. Habeas corpus petitions (Article 21) are now fully protectable in all circumstances.

Quiz

Which of the following Fundamental Rights can never be suspended from enforcement under Article 359?

Answer: Article 20 and Article 21

Under Article 359, what is suspended during a National Emergency?

Answer: The right to move courts to enforce specified Fundamental Rights