Article 359

Article 359 of the Constitution of India authorises the President to suspend the right to move any court for the enforcement of specific Fundamental Rights during a Proclamation of Emergency. This provision provides the State with flexibility to manage crises effectively while ensuring constitutional supervision through procedural and judicial safeguards.

Scope and Purpose

The fundamental objective of Article 359 is to empower the government to act decisively in extraordinary situations such as war, external aggression, or armed rebellion. It temporarily restricts judicial enforcement of certain Fundamental Rights, thereby allowing the executive and legislature to perform their duties without legal constraints. However, the rights themselves are not abolished; only the right to seek their judicial enforcement is suspended for the duration specified in the Presidential order.
This mechanism ensures that governance can continue unhindered during emergencies, while constitutional checks are re-established once normalcy is restored.

Rights Excluded from Suspension

The Constitution provides critical safeguards to ensure that certain core human rights remain inviolable. Following the 44th Constitutional Amendment Act of 1978, the rights guaranteed under:

• Article 20: Protection in respect of conviction for offences, and
• Article 21: Protection of life and personal liberty,

cannot be suspended under any circumstances, even during an Emergency. This reflects the recognition that the right to life and personal liberty forms the foundation of all human rights and democratic governance.

Presidential Order and Its Operation

The suspension under Article 359 is not automatic; it requires a Presidential order. The order specifies:

• Which Fundamental Rights are suspended,
• The territorial extent (whole or part of India), and
• The duration (either for the entire Emergency or a specified period).

While the order is in operation, individuals are barred from approaching courts for the enforcement of the suspended rights. All ongoing court proceedings concerning those rights are also suspended. However, once the order ceases, individuals regain the right to seek judicial remedies for violations that occurred during the Emergency.

Provisions under Clauses (1A) and (1B)

Clause (1A) provides that while a Presidential order under Article 359 is in force, the State may enact laws or take executive actions inconsistent with the suspended rights. However, these laws or actions cease to have effect once the order ends, except for actions already completed or decisions made during the Emergency.
If the Proclamation of Emergency applies to only part of India, laws or executive actions may still extend to unaffected areas, provided the President is satisfied that the security of those areas is threatened by events in the Emergency-affected region.
Clause (1B) introduces an important safeguard: Clause (1A) does not apply to any law that lacks a recital explicitly linking it to the Emergency. Similarly, executive actions not taken under such laws are excluded from the immunity provided by Article 359. This ensures that the Emergency power is not misused for unrelated purposes.

Territorial Extent and Application

A Presidential order under Article 359 can be applied to:

• The entire territory of India, or
• Only a specified part of the country.

In the case of a partial Emergency, the President must be satisfied that conditions in other regions warrant extension of the suspension due to threats to national security. This flexible structure enables a proportionate response to emergencies of varying scale.

Parliamentary Oversight

To maintain democratic accountability, every Presidential order issued under Article 359 must be laid before both Houses of Parliament at the earliest opportunity. This ensures legislative scrutiny of the executive’s actions during an Emergency and prevents potential overreach.

Nature of the Suspension

It is important to note that Article 359 suspends only the right to move courts for the enforcement of certain Fundamental Rights. The rights themselves continue to exist constitutionally, though their enforcement is postponed. Therefore, violations occurring during the suspension period may be challenged in court once the Emergency or the order ceases to operate.
This distinction between suspension of enforcement and abrogation of rights preserves the constitutional fabric and prevents a total breakdown of civil liberties.

Judicial Interpretation and Case Law

Several landmark judgements have clarified the scope and implications of Article 359:

• Makhan Singh v. State of Punjab (1964): The Supreme Court held that Article 359 does not suspend the rights themselves but only the right to approach courts for their enforcement. Once the order expires, the rights revive fully.
• ADM Jabalpur v. Shivkant Shukla (1976): During the 1975 Emergency, the Court controversially held that even the right to life under Article 21 could be suspended, implying that no judicial remedy was available against unlawful detention.
• 44th Constitutional Amendment Act, 1978: This amendment overturned the effect of ADM Jabalpur by excluding Articles 20 and 21 from suspension, safeguarding the most basic human rights even during Emergencies.
• K.S. Puttaswamy v. Union of India (2017): The Supreme Court reaffirmed that Articles 20 and 21 are non-derogable rights, immune from suspension under Article 359.

Distinction Between Article 358 and Article 359

Although both Articles 358 and 359 deal with Fundamental Rights during Emergencies, they differ in several respects:

This distinction highlights that Article 359 provides a more flexible and controlled mechanism of suspension compared to the automatic and broader effect of Article 358.

Recital Requirement

A fundamental procedural safeguard under Article 359 is the recital requirement. Every law or executive action taken during the Emergency must expressly state that it is made in connection with the Emergency. In the absence of such a recital, the immunity from challenge under Article 359 does not apply. This requirement enforces transparency and ensures that Emergency powers are exercised only for legitimate purposes.

Duration and Retrospective Effect

The duration of suspension under Article 359 is determined by the Presidential order. It may cover the entire Emergency period or a specified shorter span. Laws made under the protection of Article 359(1A) cease to operate once the order ends, except for actions already taken or completed during the Emergency.
The provision has a quasi-retrospective effect in that acts done during the Emergency under valid law remain legally protected even after the suspension ceases.

Significance and Constitutional Balance

Article 359 embodies the delicate balance between the need for national security and the preservation of constitutional democracy. It enables the government to act with agility during crises while ensuring that essential rights, such as those under Articles 20 and 21, remain untouchable. The procedural safeguards—Presidential satisfaction, recital requirement, and parliamentary oversight—ensure that the power is not arbitrary or absolute.