Difference Between Article 358 and Article 359

The Constitution of India is not just a legal document but the guiding framework that ensures liberty, equality, and justice for all citizens. To protect these ideals, it grants Fundamental Rights under Part III. However, the Constitution also recognises that extraordinary situations like war or national emergencies may require temporary restrictions on these rights.

Two important provisions that deal with this balance are Article 358 and Article 359. Both empower the State to suspend certain Fundamental Rights during emergencies, but their scope, mechanism, and limitations are different. Understanding these Articles is crucial for anyone studying constitutional law, as they directly touch upon the tension between individual rights and state power in times of crisis.

This article explains Article 358 and Article 359 in detail, highlights their differences, similarities, and significance, and discusses how courts have interpreted them.

Article 358: Suspension of Article 19

Text of Article 358

Article 358 states:

“While a Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression is in operation, nothing in Article 19 shall restrict the power of the State… but any law so made shall cease to have effect as soon as the Proclamation ceases to operate, except as respects things already done.”

Explanation

1. Scope: Article 358 deals exclusively with the suspension of Article 19 rights. These include the freedoms of speech and expression, assembly, association, movement, residence, and profession.
2. Automatic Suspension: Once a National Emergency is declared under Article 352 due to war or external aggression, the rights under Article 19 are automatically suspended. There is no need for a separate order by the President.
3. Temporary in Nature: Any law or executive action taken under Article 358 becomes invalid once the emergency ends, except for things already done during the period of emergency.
4. Limitations:
   • Applicable only in cases of war or external aggression, not in situations of armed rebellion.
   • Only Article 19 rights are suspended, not other Fundamental Rights.

Example

During the 1962 India-China war, Article 19 rights were suspended automatically under Article 358 as an emergency was declared on the grounds of external aggression.

Article 359: Suspension of Enforcement of Rights

Text of Article 359

Article 359 provides:

“Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III (except Articles 20 and 21) shall remain suspended.”

Explanation

1. Scope: Article 359 allows the President to suspend the enforcement of any Fundamental Right, except Articles 20 and 21.
2. Not Automatic: Unlike Article 358, this Article requires a specific Presidential Order. Only those rights mentioned in the order are suspended.
3. Suspension of Remedies, Not Rights: Article 359 does not wipe away the rights themselves; it merely suspends the ability of citizens to approach courts for enforcement of those rights.
4. Flexibility:
   • Can apply during emergencies declared due to war, external aggression, or armed rebellion.
   • The suspension can extend to the whole country or only to specific areas.
5. Limitations:
   • Articles 20 (protection in respect of conviction for offences) and 21 (protection of life and personal liberty) cannot be suspended.
   • Every Presidential Order must be presented before Parliament.

Example

During the 1975 Emergency, the President issued orders under Article 359 suspending citizens’ rights to approach courts for enforcement of certain rights. However, rights under Articles 20 and 21 remained formally untouched, though in practice they were severely curtailed until later clarified by judicial review.

Key Differences Between Article 358 and Article 359

To clearly understand the distinction, it helps to look at them side by side:

Articles 358 and 359 of the Indian Constitution deal with the suspension of Fundamental Rights during emergencies. Although both are designed to give the State extraordinary powers in times of crisis, their scope and operation are quite different. Understanding these differences is important for grasping how the Constitution balances the protection of individual freedoms with the need for national security.

Nature of Suspension

The most significant difference lies in the automatic versus conditional nature of suspension. Article 358 automatically suspends all Fundamental Rights guaranteed under Article 19 whenever a National Emergency is declared on the grounds of war or external aggression. There is no need for any separate action by the President or Parliament for this suspension to take effect.

In contrast, Article 359 does not operate automatically. It requires a specific Presidential Order to suspend the enforcement of Fundamental Rights. This makes it more controlled, as only those rights mentioned in the Presidential Order stand suspended, and only for the period specified.

Scope of Rights

Article 358 is narrow in scope. It applies only to the six freedoms guaranteed under Article 19—freedom of speech and expression, assembly, association, movement, residence, and profession.

Article 359 has a much wider reach. It allows the President to suspend the enforcement of any Fundamental Right conferred by Part III of the Constitution, except Article 20 and Article 21. This means that, subject to the Presidential Order, rights relating to equality, cultural freedoms, or constitutional remedies can all be suspended temporarily.

Trigger of Suspension

The trigger for these provisions also differs. Article 358 becomes effective the moment a Proclamation of Emergency under Article 352 is made due to war or external aggression. Citizens’ Article 19 freedoms cease to operate automatically.

For Article 359, the suspension does not happen automatically with the declaration of an emergency. Instead, it requires a separate step: the President must issue a specific order identifying which Fundamental Rights are suspended and for how long.

Cause of Emergency

Article 358 can be used only when the emergency is declared because of war or external aggression. It does not apply to emergencies caused by armed rebellion.

Article 359, however, can be applied in a broader set of circumstances. It may be invoked during emergencies declared due to war, external aggression, or even armed rebellion. This makes it more flexible in dealing with varied emergency conditions.

Effect of Suspension

The effect under the two provisions is also distinct. Under Article 358, the rights under Article 19 cease to operate entirely for the duration of the emergency. Citizens cannot claim these freedoms until the emergency is lifted.

Article 359, on the other hand, suspends only the right to move courts for the enforcement of specified rights. The rights themselves continue to exist in theory, but remedies for enforcing them are blocked for the period of suspension.

Duration

Article 358 operates for as long as the emergency continues. Once the emergency is withdrawn, Article 19 rights automatically revive, and any law or executive action taken under the emergency loses validity prospectively.

Article 359 operates strictly within the period defined in the Presidential Order. It may last for the full duration of the emergency or for a shorter period, as specified by the President.

Nature of Suspension

Lastly, Article 358 involves a complete suspension of the substantive rights under Article 19, leaving citizens without those freedoms for the duration of the emergency.

Article 359 suspends only the enforcement of rights. Citizens may still possess the rights in principle, but cannot approach courts to seek remedies if those rights are violated.

Similarities Between Article 358 and Article 359

Despite the differences, both provisions share some common features:

• Both are applicable only during the operation of a Proclamation of Emergency under Article 352.
• Both limit the enjoyment of Fundamental Rights for the duration of the emergency.
• Neither Article can suspend Article 20 and Article 21.
• Both provisions highlight the temporary nature of restrictions; rights and remedies revive once the emergency ends.

Judicial Interpretation

Makhan Singh v. State of Punjab (1964)

The Supreme Court clarified that Article 358 suspends only Article 19 rights, while Article 359 may suspend enforcement of other rights through a Presidential Order. The Court stressed that even during emergencies, laws made under these Articles must remain within constitutional limits.

ADM Jabalpur v. Shivkant Shukla (1976)

Also known as the Habeas Corpus case, the Supreme Court controversially held that during an emergency, a person cannot approach courts for enforcement of the right to life and liberty under Article 21. This interpretation was widely criticised and later overturned.

Post-44th Amendment (1978)

The 44th Constitutional Amendment corrected the misuse of emergency powers. It clarified that Articles 20 and 21 can never be suspended, even during emergencies, ensuring that life and personal liberty remain protected at all times.

Conclusion

The distinction between Article 358 and Article 359 lies in their scope, mechanism, and effect. While Article 358 automatically suspends Article 19 rights during emergencies caused by war or external aggression, Article 359 empowers the President to suspend enforcement of a broader range of rights (except Articles 20 and 21) through a Presidential Order.

Together, they form an essential part of India’s emergency provisions. They demonstrate how the Constitution balances the protection of the nation with the preservation of individual freedoms. Understanding these provisions not only strengthens constitutional awareness but also reminds us of the importance of safeguarding Fundamental Rights, especially during extraordinary times.