Article 359 of the Constitution of India: Suspension of Enforcement of Fundamental Rights During Emergency
Article 359 is an Emergency Provision in Part XVIII of the Constitution of India. It empowers the President, while a Proclamation of Emergency is in operation, to suspend the right to move any court for enforcement of specified Fundamental Rights in Part III. Articles 20 and 21 are expressly excluded and cannot be covered by an order under Article 359(1).
Meaning and Scope of Article 359
Article 359 deals with the enforcement of Fundamental Rights during a constitutional Emergency. When a Proclamation of Emergency under Article 352 is in operation, the President may issue an order concerning the right to approach courts for enforcement of specified Part III rights. The order may operate for the period of the Emergency or for a shorter period stated in the order.
The present constitutional text is especially important because the Constitution (Forty-fourth Amendment) Act, 1978 amended Article 359 so that Articles 20 and 21 remain outside the power under clause (1). Article 20 protects specified safeguards relating to conviction for offences, while Article 21 protects life and personal liberty according to procedure established by law.
For the current official text, see the Constitution of India published by the Legislative Department, Ministry of Law and Justice.
Text and Explanation of Article 359
Clause (1): Presidential order suspending court enforcement
Where a Proclamation of Emergency is in operation, the President may issue an order declaring that the right to move any court for enforcement of specified rights conferred by Part III, except Articles 20 and 21, and pending proceedings for enforcement of those specified rights, shall remain suspended for the period stated in the order.
In practical terms, clause (1) concerns the judicial enforcement of the Fundamental Rights specifically mentioned in the Presidential order. The exclusion of Articles 20 and 21 means that the constitutional protections against prohibited forms of criminal punishment and the protection of life and personal liberty remain enforceable even during an Emergency.
Clause (1A): Effect on legislative and executive power
While an order under clause (1) is in operation in relation to specified Part III rights, clause (1A) permits the State to make laws or take executive action that would otherwise be restricted by those specified rights. A law made under this protection ceases, to the extent of the constitutional incompetency, to have effect when the Presidential order ceases to operate, subject to things already done or omitted before that time.
Clause (1A) also contains a territorial proviso. Where an Emergency operates only in part of India, the constitutional protection for relevant law or executive action may extend beyond that area when the security of India or another part of its territory is threatened by activities connected with the area under Emergency.
Clause (1B): Mandatory recital in the law
Clause (1B) limits clause (1A). The special protection does not apply to a law unless the law contains a recital that it is related to the Proclamation of Emergency in operation. It also does not apply to executive action unless that action is taken under a law containing the required recital.
Clause (2): Territorial extent of the Presidential order
An order under Article 359 may extend to the whole or any part of India. If the Emergency itself is confined to only part of India, extension of the Article 359 order to another part requires the President to be satisfied that the security of India or any part of its territory is threatened by activities connected with the area in which the Emergency is operating.
Clause (3): Parliamentary laying requirement
Every order made under Article 359(1) must be laid before each House of Parliament as soon as may be after it is made.
Articles 20 and 21 Cannot Be Suspended Under Article 359
The Forty-fourth Amendment made a major constitutional change by inserting the exception for Articles 20 and 21 in Article 359. The official amendment legislation identifies section 40 as the provision amending Article 359. See the Constitution (Forty-fourth Amendment) Act, 1978.
- Article 20: provides constitutional protections in relation to conviction for offences, including protection against ex post facto criminal punishment, double jeopardy and compelled self-incrimination.
- Article 21: provides that no person shall be deprived of life or personal liberty except according to procedure established by law.
Article 359 and Article 358: Important Difference
Article 358 and Article 359 operate differently. Article 358 specifically concerns Article 19 and operates only when an Emergency is declared on the ground of war or external aggression. Article 359, by contrast, requires a Presidential order identifying the Part III rights whose enforcement is affected, and Articles 20 and 21 are excluded from its scope.
Judicial Development and ADM Jabalpur
The Emergency-era decision in Additional District Magistrate, Jabalpur v. Shivakant Shukla concerned habeas corpus and the effect of an Article 359 Presidential order during the 1975 Emergency. The constitutional position later changed materially through the Forty-fourth Amendment, which protected Articles 20 and 21 from Article 359(1).
In K.S. Puttaswamy v. Union of India (2017), the Supreme Court expressly rejected the majority approach in ADM Jabalpur. The Court has subsequently reiterated that Article 359 was amended by the Forty-fourth Amendment and that Articles 20 and 21 are excluded from the suspension mechanism. Official Supreme Court judgments may be accessed through the Supreme Court of India and its judgment search facilities.
When Can Article 359 Operate?
For Article 359 to operate, the constitutional framework requires the following:
- A Proclamation of Emergency under Article 352 must be in operation.
- The President must issue an order under Article 359(1).
- The order must identify the Fundamental Rights whose enforcement is affected.
- Articles 20 and 21 cannot be included in the order.
- The order operates for the Emergency period or the shorter period specified in it.
- Every order under clause (1) must be laid before both Houses of Parliament.
Why Article 359 Matters
Article 359 forms part of the constitutional balance between emergency powers and enforceable individual rights. Its present wording reflects the post-Emergency constitutional safeguard that access to courts for protection of Articles 20 and 21 cannot be suspended through an Article 359 Presidential order.
Legal note: The effect of an Emergency and a Presidential order depends on the precise constitutional text, the terms and territorial scope of the particular order, and applicable judicial decisions. For authoritative use, consult the current Constitution text and the relevant Presidential order, notification and judgment.