What does Article 359 do?
Q. Which of the following sentence/sentences is/are correct?
1) Article 359 does not actually suspend the Fundamental Rights.
2) Article 20 and Article 21 can be restricted only during National Emergency on grounds of war or external aggression.- Published on 27 Feb 17a. Only 1
b. Only 2
c. Both 1 and 2
d. Neither 1 nor 2
ANSWER: Only 1
- Article 359 authorizes the president to suspend the right to move any court for the enforcement of Fundamental Rights during a National Emergency.
- This means that under Article 359, the Fundamental Rights as such are not suspended, but only their enforcement.
- The said rights are theoretically alive but the right to seek remedy is suspended.
- The suspension of enforcement relates to only those Fundamental Rights that are specified in the Presidential Order.
- Further, the suspension could be for the period during the operation of emergency or for a shorter period as mentioned in the order, and the suspension order may extend to the whole or any part of the country.
- It should be laid before each House of Parliament for approval.
- While a Presidential Order is in force, the State can make any law or can take any executive action abridging or taking away the specified Fundamental Rights.
- Any such law or executive action cannot be challenged on the ground that they are inconsistent with the specified Fundamental Rights.
- When the Order ceases to operate, any law so made, to the extent of inconsistency with the specified Fundamental Rights, ceases to have effect.
- But no remedy lies for anything done during the operation of the order even after the order ceases to operate.
- This means that the legislative and executive actions taken during the operation of the Order cannot be challenged even after the Order expires.
The 44th Amendment Act of 1978 restricted the scope of Article 359 in two ways -
- Firstly, the President cannot suspend the right to move the Court for the enforcement of fundamental rights guaranteed by Articles 20 to 21.
- In other words, the right to protection in respect of conviction for offences (Article 20) and the right to life and personal liberty (Article 21) remain enforceable even during emergency.
- Secondly, only those laws which are related with the emergency are protected from being challenged and not other laws and the executive action taken only under such a law, is protected.
