Q. What do you mean by suspension of enforcement of fundamental rights during national emergency?

 

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Answer

 

In a democracy, emergency disrupts the basic principles on which state machinery works. Most importantly, it disrupts the rights fundamentally available to a citizen of that state. In India, the proclamation of an emergency drastically affects the fundamental rights of the people. At the same time, it is not correct to assert that this provision is unconstitutional. Both fundamental rights and emergencies are part of the same document. Sometimes, in case of extreme situations fundamental rights can be suspended under Article 359.

 

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Effect on the fundamental rights

Articles 358 and 359 sets out the effect of a National emergency on the fundamental rights. Article 358 deals with suspension of the elemental rights guaranteed by Article 19. While Article 359 deals with the suspension of other fundamental rights except guaranteed by Article 20 and 21.

I.                    Suspension of elemental rights:

According to Article 358, when a proclamation of national emergency is declared, the six fundamental rights under Article 19 are automatically suspended. No separate order for their suspension is required.

Note: The 44th Amendment Act of 1978 restricted the scope of Art. 358 providing that the six fundamental rights under Art. 19 will be suspended only if the National emergency is asserted on the ground of war or external aggression and not on the ground of armed rebellion.

 

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II.                 Suspension of other fundamental rights:

As per Article 359, the president, by an order,  is authorised to suspend the right to move any court for the enforcement of fundamental rights during the National emergency. In other words, the fundamental rights are not suspended as such, but only their enforcement.

Note: in any condition, rights mentioned under article 20 and 21 can not be suspended.

 

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