Political Philosophy
The Right and the Remedy: What a Proclamation of Emergency Is Allowed to Suspend
9 September 2026 · 15 min read
Part XVIII of the Constitution contains two provisions that are ordinarily described in a single phrase — the suspension of fundamental rights during an emergency — and are printed one after the other as though they were two applications of one idea. Their marginal headings do not read that way.
Article 358 is headed "Suspension of provisions of article 19 during emergencies". Article 359 is headed "Suspension of the enforcement of the rights conferred by Part III during emergencies".
The verb is the same in both. The object is not. One article suspends provisions; the other suspends enforcement. What follows in this part of the Constitution depends on the drafters having thought those were different things, and on what happened when the difference was tested.
What each article removes
Article 358(1) provides that while a Proclamation of Emergency declaring that the security of India or any part of its territory is threatened by war or by external aggression is in operation, "nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take". Any law so made ceases to have effect, to the extent of the incompetency, as soon as the Proclamation ceases to operate, "except as respects things done or omitted to be done before the law so ceases to have effect".
Read that clause for what it does to Article 19. It does not close a courtroom. It removes Article 19's capacity to restrict. During the Proclamation, the State's legislative and executive competence is measured as though the article were not there, and the ordinary consequence — that a law crossing Article 19 is void — does not arise, because there is nothing for the law to cross. Article 19 is not merely unenforceable for the period. It is inoperative, and the saving for things already done means that what was done under its suspension does not become questionable when the Proclamation lapses.
Article 359(1) works differently. Where a Proclamation of Emergency is in operation, the President may by order declare that "the right to move any court for the enforcement of such of the rights conferred by Part III (except articles 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended" for the period of the Proclamation or such shorter period as the order specifies.
Nothing in that clause touches the content of a guarantee. It reaches the right to move a court, and it reaches proceedings already pending. The article named in the order continues to say what it said before and to mean what it meant. What ends is the ability to ask a court to do anything about it.
Four further differences follow from the distinction and confirm it.
The first is the trigger. Article 358 operates on its own, by force of the Constitution, the moment a Proclamation of the specified kind is issued. No order is required and no official decides to invoke it. Article 359 does nothing until the President makes an order, and the order must specify which rights it covers.
The second is the class of emergency. Since 1978 Article 358 is confined to a Proclamation declaring a threat "by war or by external aggression". Article 359 is available under any Proclamation of Emergency, which under Article 352(1) includes one issued on the ground of armed rebellion. In an internal emergency, therefore, Article 19 is not displaced automatically — but it may be named in an order and its enforcement suspended.
The third is the check. Article 359(3) requires that every order made under clause (1) be laid before each House of Parliament as soon as may be after it is made. Article 358 carries no equivalent, because there is no instrument to lay.
The fourth is a limit added to both in 1978. Article 358(2) and Article 359(1B) provide that the suspension does not apply to a law which does not contain a recital that it is in relation to the Proclamation in operation when it was made, or to executive action taken otherwise than under a law containing such a recital. The State must say, on the face of the statute, that it is legislating under emergency cover. That does not narrow the power. It forces the exercise of it to be visible.
The Constitution anticipates the loss of its own remedy
The right to move the Supreme Court for the enforcement of Part III is not a rule of procedure sitting outside the guarantees. It is Article 32, inside Part III, and clause (1) states that the right "is guaranteed".
Clause (4) then provides: "The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution."
That sentence is drafted as a protection and functions as an authorisation. It forbids the suspension of the remedy and in the same breath admits that the Constitution provides elsewhere for exactly that. Article 359 is the elsewhere. A document that meant its remedy to be inviolable would not have needed the exception; a document that had not considered the question would not have written the sentence at all.
The structure was therefore deliberate. The Constitution guarantees a remedy, contemplates the withdrawal of that remedy, and separately contemplates the withdrawal of a right's operation — and it keeps the two withdrawals in different articles, on different triggers, with different safeguards.
Alive in theory
Whether the distinction was worth anything to a person in custody came to the Supreme Court during the emergency proclaimed on 26 October 1962. By order G.S.R. 1464 dated 3 November 1962, made under Article 359(1), the President declared that the right of any person to move any court for the enforcement of the rights conferred by Articles 21 and 22 would remain suspended for the duration of the Proclamation, "if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made thereunder". The order was modified on 11 November 1962 by the addition of Article 14. Detenus held under Rule 30(1)(b) of the Defence of India Rules, 1962 challenged their detention.
In Makhan Singh v. State of Punjab, decided on 2 September 1963 and reported at AIR 1964 SC 381, a Bench of seven judges set the two articles against each other. Of Article 358 the majority judgment, delivered by Gajendragadkar J, observed that "the suspension of Art. 19 is complete during the period in question and legislative and executive action which contravenes Art. 19 cannot be questioned even after the emergency is over". Article 359, by contrast, "does not purport expressly to suspend any of the fundamental rights. It authorises the President to issue an order declaring that the right to move any court for enforcement of such of the rights in Part III as may be mentioned in the order... shall remain suspended".
Then comes the sentence that matters most, and it is a refusal. The argument had been put that suspending the right to move a court amounts in law to suspending the right itself. The Court said: "We do not propose to decide this question in the present appeals. We will assume in favour of the appellants that the said rights are, in theory, alive and it is on that assumption that we will deal with the other points raised in the present appeals."
On that assumption the majority built the practical consequence. If the bar attaches only to a claim founded on a suspended right, every claim not so founded survives. "If in challenging the validity of his detention order, the detenu is pleading any right outside the rights specified in the Order, his right to move any court in that behalf is not suspended, because it is outside Art. 359(1) and consequently outside the Presidential Order itself." Three examples were given. A detenu could contend that the mandatory provisions of the Act had not been complied with. He could allege mala fides, since "the exercise of a power malafide is wholly outside the scope of the Act conferring the power and can always be successfully challenged". He could argue that the operative provision suffered from the vice of excessive delegation. Subba Rao J delivered a separate judgment differing on another question, while agreeing that Article 359 governs the right to move a court under Article 32(2) and under Article 226 alike.
That is what a suspension of the remedy leaves behind: not the guarantee, but the residue of legality that does not depend on the guarantee. The reasoning is coherent, it presupposes that a court remains open for the residue, and it rests on a premise the Court had declined to examine.
The question decided
The 1975 emergency put the premise in issue. By order dated 27 June 1975 the President declared under Article 359(1) that the right of any person to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22 would remain suspended. Detenus under the Maintenance of Internal Security Act, 1971 filed petitions for habeas corpus under Article 226, and High Courts entertained them on the Makhan Singh footing — that a plea of illegality resting outside the suspended articles remained available. The appeals to the Supreme Court were brought by the States against those decisions.
In Additional District Magistrate, Jabalpur v. Shivakant Shukla, decided on 28 April 1976 and reported at (1976) 2 SCC 521, a Bench of five judges held by four to one that it was not. The majority — Ray CJ, Beg, Chandrachud and Bhagwati JJ — held that in view of the Presidential Order, "no person has any locus standi to move any writ petition under Art 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous considerations". Khanna J dissented.
Set that formulation beside Makhan Singh and the overlap is exact. Non-compliance with the Act, illegality, mala fides — these are the categories the 1963 Bench had identified as lying outside Article 359(1) and therefore outside any order made under it. The 1976 majority named the same categories and closed them. The residue was not narrowed. It was abolished.
Among the majority's holdings as reported is a proposition of considerable width: "Article 21 of the Constitution is the sole repository of rights to life and personal liberty against State." If it is, then in a case about detention there is no plea that does not run through Article 21, and once Article 21 is named in the order there is nothing left to be outside the bar. The right remained on the page. It restrained nobody, and no court would say so.
The Bench in 1976 was of five judges and the Bench in 1963 was of seven, and nothing in the later decision purported to overrule the earlier one. Nothing needed to. Whether suspension of the remedy amounts to suspension of the right was precisely the question Makhan Singh had declined to answer. A larger Bench reserved it; a smaller one decided it. That is what follows when a court assumes a proposition in favour of a party rather than deciding it — the case in hand is settled, and the premise is left available to be taken the other way.
Two further features are worth separating from the holding.
The first is that by 1976 the constitutional text no longer preserved the distinction on which Makhan Singh had proceeded. Article 359(1A), inserted by the Constitution (Thirty-eighth Amendment) Act, 1975 with retrospective effect, provides that while an order under clause (1) is in operation, "nothing in that Part conferring those rights shall restrict the power of the State" to make any law or take any executive action it would otherwise be incompetent to make or take. That converts a suspension of enforcement into a suspension of operation — it does to any article named in the order what Article 358 does to Article 19 automatically. Beg J's judgment says so in terms: clause (1A), "made operative retrospectively by the 38th Constitutional amendment, of 1st August, 1975, makes it clear that both the Legislative and Executive organs of the State, are freed, for the duration of the Emergency, from the limits imposed by Part III of the Constitution."
The second is that the Supreme Court has repudiated the holding. In K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1, decided by nine judges, the majority view in ADM Jabalpur was expressly overruled — in the plurality opinion of Chandrachud J, written for four members of the Bench, and separately in the opinions of Nariman J and Kaul J.
What Parliament did in 1978, and what it did not do
The Constitution (Forty-fourth Amendment) Act, 1978 rewrote much of Part XVIII. Section 37 replaced "internal disturbance" in Article 352(1) with "armed rebellion" and required, by the new clause (3), that the decision of the Union Cabinet to advise a Proclamation be communicated to the President in writing. Section 39 confined Article 358 to war and external aggression and added the recital requirement. Section 40 made the change that matters here: in Article 359(1), and again in clause (1A), the words "the rights conferred by Part III" were replaced by "the rights conferred by Part III (except articles 20 and 21)".
Two things about that amendment repay attention.
The first is where the protection was placed. Parliament did not declare Articles 20 and 21 absolute, or unamendable, or immune from restriction. It did not touch their content at all. What it did was remove them from the reach of the order-making power — including from the reach of clause (1), the milder of the two suspensions, the one that was supposed to leave the right alive. The lesson of 1976 was read not as a lesson about the content of the right to life but as a lesson about the door to the courtroom, and the repair was made at the door.
The second is that clause (1A) was kept. Parliament in 1975 had abandoned the right-and-remedy distinction by amendment; Parliament in 1978 did not restore it. It retained the substantive suspension and carved two articles out of both clauses. Articles 20 and 21 are now outside the remedial suspension and outside the substantive one. Every other article of Part III remains exposed to both.
What the ranking says
Set the emergency chapter beside the popular account of Part III and the two do not match.
The guarantees most often described as the core of a free political order — speech, assembly, association, movement, occupation, all in Article 19 — receive the weakest emergency protection the Constitution provides. Article 19 is the one article whose operation is suspended automatically, without an order, without a laying requirement, and without anybody having to decide to suspend it. In an emergency of the other kind it can be reached by an order under Article 359 instead.
What survives are the two articles that read least like political liberty and most like a floor under the individual: Article 20, which forbids retrospective conviction, double jeopardy and compelled self-incrimination, and Article 21, which forbids deprivation of life or personal liberty except according to procedure established by law. Neither is drafted as a permission. Both are drafted as prohibitions in the passive voice — "No person shall be convicted", "No person shall be deprived" — naming nobody as the addressee, and both state a rule about what may be done to a person rather than a liberty a person may exercise.
The emergency chapter is not the only place Part III gives way. Article 33 empowers Parliament to restrict or abrogate the rights in their application to the Armed Forces and certain other services, and Article 34 permits an indemnity for acts done in connection with the maintenance or restoration of order where martial law was in force; neither needs a Proclamation. But Part XVIII is where the Constitution has to say which of its guarantees hold when the ordinary order of things has broken down, and the answer it now gives, after the amendment made in the light of what happened, is: the ones that stop the State from doing something to a person, and not the ones that permit a person to act.
There is a reason the line falls there. A guarantee of political liberty is a proposition about how a polity ought to be run, and a polity that has proclaimed an emergency has, by hypothesis, decided that the ordinary way of running it will not serve. A guarantee against retrospective punishment and against deprivation of liberty otherwise than by law is a proposition about what may be done to a person, and an emergency supplies no obvious reason for that to vary. The first is a rule for normal conditions, and the Constitution lets conditions define it. The second is offered as a rule that does not vary with conditions — and the way the Constitution now states that is not by declaring it absolute, but by removing it from the list of things a Proclamation can reach.
That is the more modest of the two ways of protecting a right, and after 1978 it is the one the Constitution relies on. Articles 20 and 21 are not immune from law. They are immune from the suspension of the forum in which they are pleaded, which is a smaller promise, and the only one the emergency chapter had been shown to be capable of keeping.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.