Article 359 of the Indian Constitution deals with the suspension of the enforcement of Fundamental Rights during a National Emergency. It empowers the President of India to suspend the right to move any court for the enforcement of such Fundamental Rights as may be specified in the Presidential Order. This suspension is only during the period when the National Emergency is in operation or for a shorter period as specified in the order. A crucial caveat exists: the rights guaranteed under Articles 20 and 21 cannot be suspended.
Original 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 specified in the order, and all proceedings pending in any court for the enforcement of the rights so specified, 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 in pursuance of clause (1) 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 but for the provisions contained in that Part would be competent for the State 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 a 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.
(2) An order made as aforesaid may extend to the whole or any part 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.
Detailed Explanation
Article 359 provides the President with the authority to suspend the enforcement of certain Fundamental Rights during a National Emergency declared under Article 352. This means citizens cannot approach courts to seek remedies for the violation of the specified rights. However, this power is subject to several important limitations and conditions:
- Scope of Suspension: The suspension only applies to the enforcement of specified Fundamental Rights. The Fundamental Rights themselves are not technically repealed or abrogated. The right to move the courts for enforcement is suspended.
- Presidential Order: The suspension must be explicitly declared through a Presidential Order. The order must specify the Fundamental Rights to which the suspension applies.
- Duration: The suspension is valid either for the duration of the National Emergency or for a shorter period, as specified in the Presidential Order.
- Exclusion of Articles 20 and 21: A crucial safeguard is that the rights guaranteed under Articles 20 (Protection in respect of conviction for offenses) and 21 (Protection of life and personal liberty) cannot be suspended under any circumstances. This ensures basic protections remain even during an emergency. This was inserted through the 44th Amendment Act of 1978.
- Parliamentary Oversight: Any order issued by the President under Article 359 must be laid before each House of Parliament for approval. This ensures parliamentary oversight and control over the exercise of this power.
- Territorial Extent: The Presidential Order can extend to the whole or any part of India. Furthermore, if a Proclamation of Emergency is in operation only in a part of the territory of India, then the order should not extend to any other part unless the President is 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.
- Article 19 and the State: While an order made in pursuance of clause (1) 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 but for the provisions contained in that Part would be competent for the State 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.
Detailed Notes
- Empowering Provision: Article 359 empowers the President to suspend the right to move courts for the enforcement of specified Fundamental Rights during a National Emergency.
- Scope of Suspension:
- Suspension pertains to the enforcement of rights, not the rights themselves.
- Specific rights to be suspended must be listed in the Presidential Order.
- Duration and Revocation:
- Suspension lasts for the emergency period or a shorter duration, as per the Order.
- Order ceases to operate when the emergency is revoked.
- Key Exception (Articles 20 and 21):
- Fundamental Rights under Articles 20 and 21 cannot be suspended.
- Guarantees protection against conviction for offenses and right to life and personal liberty.
- Parliamentary Control:
- Presidential Order must be laid before each House of Parliament.
- Ensures accountability and oversight.
- Territorial Extent of Order: Order can extend to whole or any part of India.
- Article 19 Related Provision: While an order made in pursuance of clause (1) 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.
Additional Comments
- The power under Article 359 is intended to allow the government to effectively deal with extraordinary situations threatening the security and integrity of the nation.
- The inclusion of Articles 20 and 21 as non-suspendable rights reflects the commitment to upholding basic human rights even during emergencies.
- The requirement of parliamentary oversight provides a check against the potential abuse of power by the executive.
- The 44th Amendment Act, 1978, significantly strengthened the safeguards against the misuse of emergency powers, particularly by making Articles 20 and 21 non-suspendable.
The article allows for the suspension of the right to judicial remedies for Fundamental Rights during a National Emergency, excluding Articles 20 and 21, subject to a Presidential Order and parliamentary oversight.