Article 359 of the Indian Constitution

Article 359 of the Indian Constitution grants the President of India the power to suspend the enforcement of Fundamental Rights during a National Emer

Article 359 of the Indian Constitution: Suspension of Fundamental Rights During Emergency

Article 359 of the Indian Constitution grants the President of India the power to suspend the enforcement of Fundamental Rights during a National Emergency (under Article 352). This provision ensures that the government has greater control during a crisis but also restricts individual freedoms.

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1. What is Article 359?

• Article 359 allows the President to suspend the right to move courts for enforcing Fundamental Rights during an emergency.
• However, only certain Fundamental Rights can be suspended (not all).
• This suspension applies only for the period of Emergency.

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2. Key Provisions of Article 359

(a) Presidential Order for Suspension of Rights

• The President can issue an order suspending the right to seek legal remedies for Fundamental Rights.
• This order must be approved by Parliament.

(b) Applies Only During a National Emergency (Article 352)

• Article 359 is applicable only when a National Emergency is declared.
• There are three types of emergencies in India:
  1. National Emergency (Article 352) – Due to war, external aggression, or armed rebellion.
  2. State Emergency (Article 356) – President’s Rule in states (not applicable under Article 359).
  3. Financial Emergency (Article 360) – Economic crisis (not applicable under Article 359).

(c) Fundamental Rights That Can Be Suspended

✔ Most Fundamental Rights (except Articles 20 and 21) can be suspended.
✔ Article 20 (Protection from Conviction of Offenses) and Article 21 (Right to Life and Personal Liberty) cannot be suspended.
✔ Rights under Article 19 (Freedom of Speech, Movement, Profession, etc.) are always suspended during an Emergency.

(d) No Legal Action Against Government During Suspension

• If Article 359 is in force, citizens cannot approach the courts for the enforcement of their Fundamental Rights (except Articles 20 & 21).

(e) The Effect Ends When Emergency Ends

• Once the Emergency is lifted, the suspended rights are automatically restored.

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3. Difference Between Article 358 and Article 359

Feature	Article 358	Article 359
Scope	Applies only to Article 19	Applies to multiple Fundamental Rights (except 20 & 21)
Automatic or Not?	Automatically suspends Article 19 during an Emergency	Requires a Presidential Order
Duration	During National Emergency only	Until the President's order is revoked
Legal Remedies	Citizens can challenge government actions after Emergency ends	Courts cannot entertain any petitions while the order is in force

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4. Landmark Cases on Article 359

1. A.K. Gopalan v. State of Madras (1950)

• The Supreme Court ruled that Preventive Detention laws are valid even if Fundamental Rights are restricted.

2. ADM Jabalpur v. Shivkant Shukla (1976) (Habeas Corpus Case)

• During the Emergency of 1975, the Supreme Court ruled that citizens cannot challenge detentions under Article 359.
• This decision was later overturned, reaffirming that Article 21 (Right to Life) cannot be suspended.

3. Minerva Mills v. Union of India (1980)

• The Supreme Court limited the power of Article 359, stating that the Constitution's basic structure cannot be destroyed even during an Emergency.

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5. Historical Use of Article 359

1. Emergency of 1962 (Indo-China War)

✔ Article 359 was invoked, restricting court interventions for rights violations.

2. Emergency of 1975-77 (Indira Gandhi’s Rule)

✔ Article 359 was used extensively to suppress dissent.
✔ Fundamental Rights like freedom of speech, expression, and movement were suspended.
✔ Many political opponents and activists were jailed without trial.
✔ This led to public outrage and constitutional reforms.

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6. 44th Amendment Act, 1978: Protecting Fundamental Rights

After the abuse of Emergency powers in 1975-77, the 44th Amendment Act introduced important safeguards:

✔ Article 20 and Article 21 can NEVER be suspended, even during Emergency.
✔ Courts can now review emergency declarations.
✔ The Prime Minister must get Cabinet approval before recommending an Emergency.

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7. Criticism of Article 359

🔴 Threat to Democracy – Allows the government to suppress dissent.
🔴 Misuse of Power – Can be used to silence political opposition.
🔴 Violates Human Rights – Citizens lose legal remedies during Emergency.

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8. Conclusion

✔ Article 359 is necessary for national security but must be used responsibly.
✔ The 44th Amendment ensured that Article 21 (Right to Life) remains protected.
✔ Courts now have more power to review Emergency provisions.
✔ The lessons from the 1975 Emergency show the need for strong safeguards.