During a National Emergency under Article 352, the enjoyment of Fundamental Rights can be restricted or suspended by the state.
1. Comparison: Article 358 vs. Article 359
| Article 358 (Suspension of Article 19) | Article 359 (Suspension of Enforcement) |
|---|---|
| Automatically suspends the six freedoms of Article 19 as soon as emergency is declared. | Does not automatically suspend rights; it merely authorizes the President to suspend the right to move courts for specified rights. |
| Applies only during emergency on grounds of war or external aggression (not armed rebellion). | Applies during emergency declared on grounds of war, external aggression, or armed rebellion. |
2. The Historic Shift & The ADM Jabalpur Case
In the dark landmark case of A.D.M. Jabalpur v. Shivkant Shukla (1976) (Habeas Corpus Case), during the 1975 Emergency, the Supreme Court, by a 4-1 majority, held that once the right to move courts for Article 21 is suspended under Article 359, no citizen has the locus standi to file a writ of Habeas Corpus to challenge arbitrary or illegal detention by the police. Justice H.R. Khanna famously dissented, defending personal liberty.
3. The 44th Amendment Protective Safeguards
To ensure such a suspension of personal liberty can never happen again, the 44th Amendment, 1978 modified Article 359 to establish that:
The President CANNOT suspend the right to move the courts for the enforcement of Article 20 (Conviction protection) and Article 21 (Right to Life and Personal Liberty) under any circumstances. Even during the gravest national emergency, the right to life and habeas corpus remains fully active.