Article 358 of the Indian Constitution deals with the suspension of the fundamental rights guaranteed under Article 19 during a National Emergency. It specifically outlines the conditions under which the six freedoms enshrined in Article 19 – relating to freedom of speech and expression, assembly, association, movement, residence, and profession – are automatically suspended. This provision is intended to enable the government to effectively deal with extraordinary situations threatening the security of the nation.
Original Text
358. Suspension of provisions of article 19 during emergencies.
(1) While a Proclamation of Emergency declaring that the security of India or of any part of the territory thereof is threatened by war or by external agg ression is in operation, nothing in article 19 shall restrict the power of the State as defined in Part III 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 Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect:
Provided that where such 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 of 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.
(2) Nothing in clause (1) 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; or
(b) to any executive action taken otherwise than under a law containing such a recital.
Detailed Explanation
Article 358 provides for the automatic suspension of Article 19, which guarantees certain fundamental freedoms to citizens, when a National Emergency is declared on the grounds of war or external aggression. This means that during such an emergency, the State (including the government and legislature) is not restricted by Article 19 in making laws or taking executive actions. However, laws made during the emergency cease to have effect once the emergency is lifted, except for actions already taken under those laws. The 44th Amendment Act of 1978 introduced safeguards to prevent abuse of this provision. These safeguards include that the suspension applies only to emergencies declared on grounds of war or external aggression, and any law enacted during the emergency must contain a recital stating its connection to the emergency. Furthermore, Article 359 outlines a separate process for suspending other fundamental rights, differentiating it from the automatic suspension of Article 19 under Article 358.
Detailed Notes
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Automatic Suspension: During a National Emergency proclaimed due to war or external aggression, Article 19 is automatically suspended.
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Scope of Suspension: The State (government and legislature) is free to make laws or take executive action that would otherwise violate Article 19.
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Duration: Laws made under Article 358 cease to have effect when the emergency ends, except for actions already taken.
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44th Amendment Act: Introduced safeguards to prevent abuse.
- Suspension applies only to emergencies based on war or external aggression.
- Laws enacted during the emergency must have a recital stating its connection to the emergency.
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Differential Application Based on Emergency Extent: If the emergency is applicable only to a part of the country, then the law made under Article 358 can be applied to the rest of India if the security of India is threatened by the activities in the region where emergency is imposed.
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Relationship with Article 359: Article 359 deals with the suspension of other fundamental rights, requiring a separate Presidential Order.
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Safeguards Against Abuse:
- Laws without a recital to the effect that such law is in relation to the Proclamation of Emergency are not covered.
- Executive actions taken otherwise than under a law containing such a recital are not covered.
Additional Comments
- The 44th Amendment was crucial in preventing misuse by limiting the scope of Article 358.
- Article 358 is distinct from Article 359, which allows the suspension of other fundamental rights, but not automatically.
- The rights under Article 20 and 21 cannot be suspended even during an emergency.
Summary
During a National Emergency declared due to war or external aggression, Article 19 is automatically suspended, enabling the State to enact laws and take executive actions without the constraints of Article 19. Laws enacted during this period cease to be in effect once the emergency is lifted except for already completed actions. The 44th Amendment Act introduced key safeguards, limiting the application of this article to emergencies arising from war or external aggression, and requiring laws enacted during such times to be explicitly linked to the emergency. Article 359 allows for suspension of other fundamental rights, but requires a separate Presidential Order, differentiating it from Article 358’s automatic suspension.