This article is written by Atishay Jain, a former UPSC aspirant and a key member of the ApniLaw team, combining his knowledge of the Constitution with a strong interest in public law. For any personal queries or suggestions, feel free to reach out to us through our official channel
Introduction: Can Your Fundamental Rights Be Suspended?
In times of national emergency, your fundamental rights may not offer the protection you’re used to. But what rights get affected and how? It depends on two critical constitutional provisions: Article 358 and Article 359.
They sound similar, but they operate very differently, and understanding the distinction is key to decoding emergency powers in India.
What Do Articles 358 and 359 Deal With?
Both Articles are part of the Emergency Provisions in the Indian Constitution. But while they’re both about limiting Fundamental Rights during an emergency, they differ in scope, operation, and impact.
Key Differences Between Article 358 and Article 359
| Basis | Article 358 | Article 359 |
|---|---|---|
| Scope of Rights Affected | Applies only to Article 19 (freedom of speech, movement, etc.) | Can apply to any Fundamental Right except Articles 20 and 21 |
| Automatic Suspension? | Yes – rights under Article 19 are automatically suspended | No – suspension of enforcement requires a Presidential Order |
| Type of Emergency | Applies only during External Emergency (war or external aggression) | Applies to both External and Internal Emergencies |
| Duration of Suspension | Entire duration of emergency | For the specific period mentioned in the Presidential Order |
| Geographical Reach | Applies to the entire country | May apply to whole or part of India |
| Impact on Legal Protection | Article 19 becomes completely inoperative | Articles 20 & 21 (protection in criminal offences and life/liberty) cannot be suspended |
| Effect on State Actions | State can pass any law or take actions inconsistent with Article 19 | State can make laws/actions contrary to suspended rights (as specified) |
Let’s Understand This with an Example
Scenario 1: Article 358 in Action
Suppose there’s a war with a neighboring country, and the President declares a national emergency under Article 352. The moment this happens, Article 19 rights—like freedom of speech, movement, and occupation are automatically suspended.
That means:
- The government can censor news.
- It can restrict protests or travel.
- These actions cannot be challenged in court under Article 19.
Scenario 2: Article 359 in Action
Let’s say there’s an armed rebellion within the country. The President declares a national emergency and issues a Presidential Order under Article 359, suspending enforcement of Articles 14 and 22.
This means:
- You still have the right to equality and protection from arbitrary detention.
- But you can’t approach the courts to enforce them while the order is in effect.
So, while Article 358 removes the right itself, Article 359 only blocks your ability to enforce it in court.
The Common Thread
Despite their differences, both Articles give legal cover only to emergency-related laws and actions.
That means:
- If the law has nothing to do with the emergency, it can still be challenged.
- This is a constitutional check against overreach by the government.
Why Does This Matter?
If you’re preparing for UPSC, a law student, or just a concerned citizen, understanding the difference between Article 358 and Article 359 helps you:
- Decode how rights are restricted in emergencies.
- Understand the checks and balances built into the Constitution.
- Recognize how judicial review and Presidential discretion work.
Conclusion: Rights Aren’t Erased, But They Can Be Paused
In a democracy like India, rights are protected, but not absolute. During emergencies, the Constitution allows the government to pause or limit those rights to safeguard national security or public order.
Knowing how and when that happens can help us hold systems accountable and protect our freedoms when they’re most vulnerable.
