Suspension of Fundamental Rights During Emergency (Articles 358–359)
Indian Polity › Emergency Provisions · Topic 10.5
Article 358 automatically suspends the six rights of Article 19 during an External Emergency, while Article 359 lets the President suspend enforcement of specified rights. Articles 20 and 21 cannot be suspended, and only emergency-related laws are protected.
5 min read · UPSC Prelims · Polity · Emergency Provisions
At a Glance
- What it is Effect of a National Emergency on Fundamental Rights
- Article 358 Automatic suspension of Article 19 rights, only on war or external aggression
- Article 359 Presidential suspension of the right to move courts; not for Articles 20 and 21
- Reform 44th Amendment Act of 1978 narrowed both
- Exam link UPSC Prelims, Polity: Emergency Provisions
Where Does It Fit?
This is the fifth topic of the category on Emergency Provisions. Articles 358 and 359 describe the effect of a National Emergency on Fundamental Rights. Article 358 deals with the six freedoms of Article 19, while Article 359 deals with the other Fundamental Rights, except those guaranteed by Articles 20 and 21.
Article 358: Suspension of Article 19
When a proclamation of National Emergency is made, the six Fundamental Rights under Article 19 are automatically suspended. No separate order is required. The State is freed from the restrictions of Article 19 and can make any law or take any executive action abridging or taking away these rights without being challenged for inconsistency with Article 19. When the Emergency ceases, Article 19 revives automatically, and any law made in the Emergency, to the extent of inconsistency with Article 19, ceases to have effect. However, no remedy lies for anything done during the Emergency, even after it expires.
The 44th Amendment Act of 1978 restricted the scope of Article 358 in two ways. First, the Article 19 rights stand suspended only when the National Emergency is declared on the ground of war or external aggression, and not on the ground of armed rebellion. Second, only laws related to the Emergency are protected from challenge, and only executive action taken under such a law.
Article 359: Suspension of Enforcement
Article 359 authorises the President to suspend the right to move any court for the enforcement of Fundamental Rights during a National Emergency. The rights themselves are not suspended, only their enforcement; they remain theoretically alive but the right to seek a remedy is suspended. The suspension covers only those rights specified in the Presidential Order. It may last for the duration of the emergency or a shorter period and may extend to the whole or any part of the country. The order must be laid before each House of Parliament for approval.
While the order is in force, the State can make any law or take any executive action abridging the specified rights, without challenge on that ground. After the order ceases, such laws cease to have effect to the extent of inconsistency, but no remedy lies for actions done during the order. The 44th Amendment restricted Article 359 in two ways: the President cannot suspend the right to move the court for enforcing Articles 20 and 21, and only laws related to the emergency, with executive action under them, are protected.
Understanding the Idea of Immunity
In both Articles, the State is protected only while the suspension is in force. Once the emergency or the presidential order ends, the law made in that period ceases to have effect to the extent of inconsistency with the right concerned, but no remedy lies for things already done. The 44th Amendment narrowed this protection so that a law not related to the emergency, or an executive action not taken under an emergency-related law, remains open to challenge. This is the reason students must remember that the immunity is limited to emergency-related laws.
Differences Between Articles 358 and 359
| Point | Article 358 | Article 359 |
|---|---|---|
| Rights covered | Article 19 only | Rights specified in the Presidential Order |
| Mode | Automatic suspension | No automatic suspension; President suspends enforcement |
| Type of Emergency | External Emergency only | Both external and internal |
| Duration | Entire period of Emergency | Period specified by the President |
| Area | Entire country | Entire country or a part |
| Articles 20 and 21 | Not relevant to them | Their enforcement cannot be suspended |
The similarity between them is that both give immunity from challenge only to laws related to the Emergency and the executive action taken under such laws.
Why Is This Topic Important?
- Favourite comparison Difference between Article 358 and 359 is a regular question
- Rights Article 20 and 21 stay enforceable
- Linked cases Connects to emergency-era liberty debates
What Came Next?
The next topic covers the 44th Amendment Act, 1978 and its changes to the emergency provisions.
Key People and Terms
- Automatic suspension Happens at once without any order
- Enforcement The right to move court for a remedy
- Presidential Order Specifies which rights are suspended
- External Emergency War or external aggression
- Laws related to Emergency Only these are protected
Exam Corner
Points to Remember
- Article 358: automatic, Article 19 only, external emergency only.
- Article 359: by President’s order, enforcement only.
- Articles 20 and 21 cannot be suspended.
- Immunity only for emergency-related laws.
Do Not Confuse With
- Suspension of rights and of enforcement Article 359 suspends enforcement, not the rights
- Article 358 and 359 types of emergency Article 358 only external; Article 359 both
- Revival of rights Article 19 revives automatically when emergency ends
Memory Hook
358 switches off Article 19 by itself; 359 locks the court door, but never for 20 and 21.
Mains Angle
Questions on this topic usually ask how liberty is protected in an emergency. Use these points to add depth.
- Rights versus remedy Article 359 suspends the remedy
- Core protected Articles 20 and 21 remain enforceable
- Narrow protection Only emergency-related laws are immune
- After 1975 44th Amendment corrected excesses
A Question You May Face
An original practice question, not a past paper question.
“Compare Articles 358 and 359 and explain how the 44th Amendment protected fundamental rights during emergency.”
How to Answer
- Introduction Effect on Fundamental Rights.
- Article 358 Automatic, Article 19.
- Article 359 Enforcement suspended.
- Conclusion Protection of Articles 20 and 21.
GS Relevance
Frequently Asked Questions
Which Fundamental Rights are suspended automatically during an emergency?
Under Article 358, the six Fundamental Rights under Article 19 are suspended automatically when a National Emergency is declared on the ground of war or external aggression. No separate order is required, and the rights revive when the emergency ends.
What does Article 359 suspend?
Article 359 authorises the President to suspend the right to move any court for the enforcement of Fundamental Rights specified in an order. The rights themselves are not suspended, only the remedy of approaching the court is suspended.
Which rights cannot be suspended even during an emergency?
After the 44th Amendment Act of 1978, the President cannot suspend the right to move the court for enforcing Article 20, protection in respect of conviction for offences, and Article 21, the right to life and personal liberty.
Does Article 358 apply to an Internal Emergency?
No. After the 44th Amendment, Article 358 operates only when the emergency is declared on the ground of war or external aggression, not on armed rebellion. Article 359 operates in both External and Internal Emergencies.
Are all laws made during an emergency protected from challenge?
No. After the 44th Amendment, only laws related to the Emergency are protected from being challenged on the ground of violating the suspended rights, and executive action is protected only if taken under such a law.
PYQ Practice — Statement Analysis
1 Article 358 suspends Article 19 automatically.
On war or external aggression.
2 The enforcement of Article 21 can be suspended under Article 359.
Not since the 44th Amendment.
3 Article 359 suspends the Fundamental Rights themselves.
Only their enforcement.
4 Article 358 applies in both External and Internal Emergencies.
Only External.
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