Article 358

Article 358 of the Constitution of India provides for the suspension of the provisions of Article 19 during a Proclamation of Emergency under Article 352. It enables the State to take exceptional measures in times of war or external aggression by temporarily overriding the fundamental freedoms guaranteed under Article 19. This article plays a vital role in balancing national security and individual liberty during extraordinary circumstances.

Background and Constitutional Context

The Indian Constitution guarantees six fundamental rights under Article 19, including freedom of speech and expression, assembly, association, movement, residence, and profession. However, these rights are not absolute and may be restricted during an Emergency. Article 358 serves as a constitutional mechanism to suspend these freedoms automatically when a National Emergency is proclaimed on the grounds of war or external aggression.
The provision was designed to give the State unrestricted legislative and executive authority to address situations threatening the sovereignty and integrity of the country. It does not, however, apply in cases of an Emergency declared due to an armed rebellion, as clarified by the 44th Constitutional Amendment Act of 1978.

Scope and Operation

Under Article 358, once a Proclamation of Emergency under Article 352 is in force due to war or external aggression, the restrictions imposed by Article 19 on State action stand automatically suspended. This means the State can make laws or take executive actions even if they violate the freedoms guaranteed by Article 19.
During such a period, individuals cannot challenge laws or actions of the government on the grounds that they infringe upon their rights under Article 19. However, these laws or actions must have a clear and direct connection with the Emergency situation.
After the Emergency ceases to operate, the suspension of Article 19 also comes to an end. Any law made during the Emergency becomes inoperative to the extent that it is inconsistent with Article 19, though actions already taken remain valid.

Territorial Application

If a Proclamation of Emergency is declared in only a part of India, Article 358 allows the government to extend related legislative or executive measures to unaffected regions if the security of those areas is considered endangered by developments in the affected part. This provision ensures national coherence and preventive governance during regional crises.

Conditions for Application

Clause (2) of Article 358 sets specific conditions for its application. The suspension of Article 19 applies exclusively to laws that expressly include a recital linking them to the Emergency. Similarly, executive actions must be taken under such laws that contain the requisite recital.
Therefore, if a law or executive action lacks this formal recital, the protection under Article 358 will not be available. This requirement acts as a constitutional safeguard against arbitrary use of power during emergencies.

Comparison Between Article 358 and Article 359

Though Articles 358 and 359 both relate to the suspension of fundamental rights during an Emergency, their scope and manner of operation differ significantly:

• Article 358 automatically suspends the freedoms under Article 19 once an Emergency is proclaimed due to war or external aggression. No specific Presidential order is required for this suspension.
• Article 359, by contrast, empowers the President to suspend the right to move any court for enforcement of specified fundamental rights during an Emergency. This suspension is not automatic and depends on a Presidential order.
• Article 358 applies exclusively to Article 19, while Article 359 can extend to other fundamental rights, such as Articles 14, 21, and 22, depending on the scope of the Presidential order.

Judicial Interpretation and Case Law

Over the years, several Supreme Court judgements have elaborated the scope and application of Article 358:

• Makhan Singh v. State of Punjab (1964): The Court held that Article 358 leads to an automatic suspension of Article 19 rights during an Emergency. Other fundamental rights remain enforceable unless suspended by Article 359.
• Bennett Coleman & Co. v. Union of India (1973): The judgment clarified that press freedom under Article 19(1)(a) can be curtailed during an Emergency, as the protection of Article 19 stands suspended.
• Anukul Chandra Pradhan v. Union of India (1996): The Court observed that laws made under Article 358 lose their force after the Emergency ends, though actions already taken under such laws remain valid.
• Keshavananda Bharati v. State of Kerala (1973): The landmark judgment held that the basic structure of the Constitution, including fundamental rights, cannot be abrogated even during an Emergency.
• ADM Jabalpur v. Shivkant Shukla (1976): It was clarified that Article 358 applies only to Article 19, while other rights, such as those under Articles 21 and 22, can be suspended only through Article 359.

The 44th Constitutional Amendment Act, 1978

The 44th Amendment significantly altered the scope of Article 358. Prior to this amendment, the suspension of Article 19 applied to all types of National Emergencies, including those declared due to internal disturbances (now termed “armed rebellion”).
After the amendment, Article 358’s operation was restricted exclusively to Emergencies proclaimed due to war or external aggression. This amendment aimed to prevent misuse of Emergency powers and to ensure that internal political disturbances did not lead to the wholesale suspension of fundamental freedoms.

Key Features and Practical Implications

The major features of Article 358 include:

• Automatic suspension of Article 19 during an Emergency declared for war or external aggression.
• Requirement of recital: Laws and executive actions must include a specific recital linking them to the Emergency.
• Validity of actions: Actions taken under such laws remain valid even after the Emergency ends.
• Limited judicial review: During the Emergency, courts cannot review State actions for violating Article 19.
• Territorial flexibility: The government may apply Emergency-related laws beyond the affected region if national security demands.

In practical terms, Article 358 empowers the government to impose restrictions on freedoms such as speech, assembly, and movement during wartime or external aggression. Once the Emergency is revoked, citizens regain the protection of Article 19, though actions already taken remain legally valid.

Significance

Article 358 represents the constitutional balance between safeguarding national security and preserving civil liberties. It acknowledges that certain rights may need to be curtailed temporarily for the protection of the State and its citizens. However, through judicial scrutiny and constitutional amendments, the scope of this power has been narrowed to ensure that such suspension occurs only under the most critical circumstances.