Distinction Between Articles 358 and 359

358 vs 359 describes two distinct mechanisms by which a Proclamation of National Emergency affects Fundamental Rights: Article 358 automatically suspends the six freedoms guaranteed by Article 19 the moment such a Proclamation is made, while Article 359 empowers the President to separately suspend, by order, the right to move any court for enforcement of other specified Fundamental Rights. Both provisions sit together in Part XVIII of the Constitution, but they operate through different mechanisms, cover different rights, and apply to different kinds of Emergency.

What Article 358 Does

Article 358 deals only with the Fundamental Rights guaranteed by Article 19 — the six freedoms relating to speech and expression, assembly, association, movement, residence, and profession or occupation. As soon as a Proclamation of National Emergency is made, these rights stand automatically suspended; no separate order is needed. While the Proclamation is in operation, the State is freed from Article 19's restrictions, so it may make laws or take executive action otherwise inconsistent with Article 19 without that action being open to challenge. Once the Emergency ends, Article 19 revives automatically and any inconsistent law ceases to have effect — but there is no remedy for anything already done during the Emergency.

The 44th Amendment Act, 1978 narrowed Article 358 in two ways: automatic suspension now applies only when the Emergency is declared on the ground of war or external aggression, not armed rebellion; and only laws actually connected with the Emergency, and executive action under them, get protection from challenge.

What Article 359 Does

Article 359 works differently. It does not suspend any Fundamental Right by itself; it authorises the President to order suspension of the right to move any court for enforcement of specified Fundamental Rights while a National Emergency is in operation. The rights named remain theoretically in existence, but the remedy of approaching a court is withdrawn for as long as the order operates. The order may cover the whole country or only part of it, and the suspension may last the full Emergency or a shorter specified period. Every such order must be laid before both Houses of Parliament.

While an Article 359 order is in force, the State may make laws or take executive action inconsistent with the specified rights without challenge; when the order lapses, such a law ceases to have effect to that extent, though — as with Article 358 — no remedy exists for action already taken.

The 44th Amendment Act, 1978 restricted Article 359 correspondingly: the President can never suspend enforcement of Articles 20 (protection in respect of conviction) and 21 (life and personal liberty), whatever the ground of Emergency; and only Emergency-related laws, and executive action under them, are protected.

Key Differences Between Article 358 and Article 359

The Common Safeguard After the 44th Amendment

Despite these differences, Articles 358 and 359 share one feature introduced by the 44th Amendment Act, 1978: both protect from challenge only laws that carry an express recital stating they relate to the Proclamation of Emergency, and only executive action taken under such a law. A law without this recital gets no immunity under either article, and remains open to challenge for violating Fundamental Rights even during the Emergency.

The A.D.M. Jabalpur Case and Why the Safeguard on Article 21 Matters

The pre-1978 position shows why excluding Articles 20 and 21 from Article 359 matters. A Presidential Order dated 27 June 1975 suspended the right to move any court for enforcement of several rights, including Article 21. In A.D.M. Jabalpur v. Shivakant Shukla (1976), the Supreme Court held that since Article 21 was the sole repository of the right to life and personal liberty against the State, a detenu had no locus standi to file a habeas corpus petition once that order was in force, and it upheld Section 16A(9) of the Maintenance of Internal Security Act, 1971 on this reasoning. The 44th Amendment Act, 1978 overturned the practical effect of this ruling by amending Article 359 so enforcement of Article 21 (and Article 20) can never be suspended, leaving the A.D.M. Jabalpur judgment of only academic interest today.

Historical Use of Article 358 and Article 359

A National Emergency under Article 352 has been proclaimed three times: October 1962 (Chinese aggression, in force till January 1968), December 1971 (Pakistan's attack), and June 1975 (internal disturbance, while the 1971 Proclamation was still running). The first two were external-aggression declarations that would engage Article 358; the 1975 Emergency was declared on internal grounds — a distinction that, after the 44th Amendment, now determines whether Article 358 can apply at all. Article 359 was invoked alongside these Emergencies through separate Presidential Orders — the 1962 order suspended enforcement of rights under Articles 14, 19 and 21 for persons detained under the Defence of India Act, and a later order suspended enforcement under Articles 14, 21 and 22 for certain detenus under the Maintenance of Internal Security Act. The 1971 and 1975 Proclamations were both revoked in March 1977.

UPSC Relevance

Prelims

• Article 358 automatically suspends Article 19 alone; Article 359 requires a separate Presidential Order and can cover other Fundamental Rights.
• After the 44th Amendment, Article 358 applies only to Emergency declared on grounds of war or external aggression, not armed rebellion.
• Articles 20 and 21 can never be suspended under Article 359, even during an Emergency.
• Both articles, post-1978, protect only Emergency-related laws carrying the required recital, not all legislation.

Mains

• Distinguish between Article 358 and Article 359 with reference to their scope, mode of operation, and the changes introduced by the 44th Amendment Act, 1978.
• Discuss how the A.D.M. Jabalpur case exposed the risks of the pre-1978 Article 359 and how the Constitution was subsequently amended to address them.

FAQ

Q1. What is the basic difference between Article 358 and Article 359? Article 358 automatically suspends Article 19 rights on proclamation of Emergency; Article 359 needs a separate Presidential Order to suspend enforcement of other specified Fundamental Rights.

Q2. Does Article 358 apply during every kind of National Emergency? No. Since the 44th Amendment Act, 1978, it applies only when the Emergency is declared on the ground of war or external aggression, not armed rebellion.

Q3. Can Articles 20 and 21 ever be suspended under Article 359? No. The 44th Amendment Act, 1978 excluded them from the scope of any Presidential Order under Article 359.

Q4. Does Article 359 suspend Fundamental Rights themselves? No. It only suspends the right to move a court to enforce the specified rights, which otherwise continue to exist in law.

Q5. What common condition do both articles carry after 1978? Both protect from challenge only laws that expressly recite they relate to the Emergency, and executive action taken under such laws.

Quick Revision

• Article 358: automatic suspension of Article 19 rights on proclamation of National Emergency.
• Article 359: President may, by order, suspend the right to move courts for enforcement of specified Fundamental Rights.
• Article 358 applies only to war/external-aggression Emergency (post-44th Amendment); Article 359 applies to any ground, including armed rebellion.
• Article 358 covers the whole country for the full Emergency; Article 359's order may be territorially or time limited.
• Articles 20 and 21 can never be suspended under Article 359.
• Both articles, after the 44th Amendment Act, 1978, protect only Emergency-related laws with the required recital.
• A.D.M. Jabalpur (1976) tested pre-1978 Article 359; no longer good law after the 44th Amendment.
• National Emergency proclaimed in 1962, 1971, and 1975; the 1971 and 1975 Proclamations were revoked in March 1977.

Sources

• The Constitution of India, Part XVIII, Articles 358 and 359 — legislative.gov.in — official text of the Emergency provisions on Fundamental Rights.
• The Constitution (Forty-fourth Amendment) Act, 1978 — legislative.gov.in — official record of the amending Act narrowing Articles 358 and 359.
• Additional District Magistrate, Jabalpur v. Shivakant Shukla, 1976 — Supreme Court of India — official judgment record.

Further Reference

For deeper reading on this topic and the wider polity syllabus, these standard works are recommended:

• M. Laxmikanth, Indian Polity (McGraw Hill) — the standard UPSC handbook.
• D.D. Basu, Introduction to the Constitution of India (LexisNexis) — authoritative constitutional-law treatment.
• The Constitution of India — Bare Act — the official text.

Disclosure: As an Amazon Associate, UPSC.wiki earns from qualifying purchases — at no extra cost to you.