Previous Year Question

Article 359 of the Constitution of India deals with the suspension of the enforcement of certain Fundamental Rights contained in Part III during a National Emergency. Its official heading is “Suspension of the enforcement of the rights conferred by Part III during emergencies.”

Under Article 359(1), while a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of specified Fundamental Rights shall remain suspended for the period mentioned in the order. Proceedings already pending in courts for enforcement of those specified rights may also remain suspended during that period.

Very important fact: The question loosely says that “Fundamental Rights can be suspended.” The more precise constitutional position is that Article 359 primarily permits the suspension of the right to approach courts for enforcement of specified Fundamental Rights. It should therefore not be understood as simply abolishing or suspending all Fundamental Rights themselves.

Further, after the 44th Constitutional Amendment, Articles 20 and 21 are expressly excluded from the operation of Article 359. Thus, even during a National Emergency, the President cannot suspend the right to approach a court for enforcement of Articles 20 and 21 under Article 359.

The distinction between Articles 358 and 359 is also important. Article 358 specifically concerns Article 19 and, under the present constitutional scheme, operates in an Emergency proclaimed on the grounds of war or external aggression. Article 359, on the other hand, deals with enforcement of specified Fundamental Rights through a Presidential order, except Articles 20 and 21.