सं Samvidhan

The Constitution of India

Article 359

Suspension of the enforcement of the rights conferred by Part III during emergencies

Why this exists

Article 359 was designed to give the government breathing room during a national Emergency by temporarily blocking court enforcement of certain Fundamental Rights, on the theory that litigation could hamper the state's ability to act swiftly in a crisis. However, the 1975-77 Emergency exposed how dangerous this power could be: the government suspended enforcement of Articles 14, 21, and 22, and in the infamous ADM Jabalpur case, the Supreme Court held that even the right to life and personal liberty under Article 21 could not be enforced during that suspension. The public and legal backlash led to the 44th Amendment (1978), which permanently excluded Articles 20 and 21 from the scope of Article 359, added clauses (1A) and (1B) requiring a clear 'recital' linking any rights-bypassing law to the Emergency, and required parliamentary oversight — all aimed at preventing a repeat of the 1975-77 abuses.

How courts read it

In Makhan Singh v. State of Punjab (1964), the Supreme Court held that even during suspension under Article 359, a person could still challenge detention on grounds outside Part III, such as lack of legislative competence or mala fide action, since only the specific Part III rights mentioned in the presidential order were suspended, not all legal remedies. The most consequential episode was ADM Jabalpur v. Shivkant Shukla (1976), where the majority held that during the Emergency suspension, not even Article 21 (right to life and personal liberty) could be enforced against detention, a ruling widely criticized as one of the Supreme Court's darkest moments and effectively overruled in spirit by later judgments, including the Court's own acknowledgment of error in K.S. Puttaswamy v. Union of India (2017). The 44th Amendment's exclusion of Articles 20 and 21 from Article 359's reach was a direct legislative response to prevent ADM Jabalpur from recurring.

Common misconceptions
  • Myth: Article 359 lets the President suspend all Fundamental Rights during an Emergency.
    Fact: It only suspends people's ability to go to court to enforce specified rights — the rights themselves aren't erased, and Articles 20 and 21 can never be included in such an order.
  • Myth: Once Article 359 is invoked, the right to life (Article 21) can be denied without any remedy, as happened in 1975-77.
    Fact: After the 44th Amendment (1978), Articles 20 and 21 are permanently excluded from Article 359, specifically to prevent a repeat of the ADM Jabalpur ruling.
  • Myth: A presidential order under Article 359 permanently changes the law.
    Fact: Any law made using the special power under clause (1A) automatically ceases to have effect once the suspension order ends, except for things already done under it.
Article 359 — Suspension of the enforcement of the rights conferred by Part III during emergencies · Samvidhan