The Justiciability of the Suspension of Article 19

Where that leaves the law. The removal does not by itself confer a power of review; it removes an express bar. What supplies the power is the general law, and the fullest statement of it in this Part is in S.R. Bommai, worked in [President's Rule and Financial Emergency, in Outline]. Four of its propositions transfer.

That a satisfaction may be subjective and yet a conditioned power, the existence of relevant material being a pre-condition.

That the Proclamation is not immune from judicial review and may be struck down if mala fide or based on wholly irrelevant or extraneous grounds.

That the deletion of the non-justiciability clause by the 44th Amendment removed the cloud on reviewability.

That article 74(2) bars an inquiry into the advice but not into the material on which the satisfaction was formed, and that the Union must produce that material if it wishes to defend the Proclamation, the court examining relevance and not correctness or adequacy.

An LL.M. answer should note the qualification: S.R. Bommai was decided on article 356, and no decision of this Court has struck down a Proclamation under article 352, there having been none since 1975. The reasoning is general and there is no principled reason to confine it, but a candidate should present it as an argument by parity rather than as a decided point.

The second real question: does article 358 apply at all?

This is the question that most often arises in practice, and it is unambiguously for the court.

Is the Proclamation on a ground that attracts the article? Since 1978 article 358 operates only where the Proclamation declares that the security of India is threatened by war or external aggression. If the Proclamation is on the ground of armed rebellion, the article does not apply, and whether it applies is a question of construing the Proclamation, which is a document.

Is the Proclamation in operation? Article 358 operates only while the Proclamation is in operation, so the dates are a question of fact.

Does the law contain the recital? Clause (2)(a) excludes a law without a recital that it is in relation to the Proclamation in operation when it is made. Whether the recital exists is a matter of reading the statute.

Was the executive action taken under such a law? Clause (2)(b) excludes action taken otherwise than under a law containing the recital.

Is the law otherwise competent? Article 358 frees the State only from Part III. Competence, and every restriction outside Part III, remain fully justiciable.

Is the impugned law within the emergency area, or within the proviso? If the Proclamation is in operation in part of India only, the proviso applies elsewhere only if and in so far as the security of India is threatened by activities in or in relation to the emergency area, which is a question a court can examine.

Six justiciable questions, all of them arising out of article 358 itself. That is the substance of the answer to MU's question, and a candidate who lists them has answered it far better than one who debates whether the President's satisfaction is reviewable.

The third real question: reviewing an order under article 359

An order under article 359(1) is an executive order, made by the President, required to be laid before each House of Parliament by clause (3). Several things about it are examinable and a court can decide them.

Whether the rights it names may lawfully be named. Since 1978 articles 20 and 21 cannot be, and an order naming them would be void to that extent.

Whether the order covers the plea being raised. This is the whole of [What a Presidential Order Can Never Bar: Makhan Singh], where the Court listed the pleas that survive an order.

Whether it is within its own terms. The 1962 order was conditioned on the deprivation being under the Defence of India Act, and the courts could and did examine whether a detention was in truth under that Act.

Whether it extends where it purports to extend. Clause (2) and its proviso limit the extension of an order beyond the area of a partial emergency.

And, on the same reasoning as the Proclamation, whether it is mala fide or on wholly extraneous grounds.

How the answer should be structured

MU's question rewards a structure, and this is the structure.

Correct the premise. Article 19 is not suspended by any authority's decision; article 358 operates automatically on a Proclamation of a specified kind, so there is no act of suspension to review.

Separate the three questions. The Proclamation, the applicability of article 358, and any order under article 359.

Answer each. The Proclamation is reviewable on the Bommai grounds, the non-justiciability clause having been removed in 1978, subject to article 74(2) which protects the advice and not the material. The applicability of article 358 raises six questions, all justiciable. An order under article 359 is reviewable on its terms, its scope, and the Makhan Singh pleas.

Give the historical point. Between 1975 and 1978 the 38th Amendment's clause made the satisfaction final and conclusive, and its removal was one of the central acts of the 44th Amendment.

Conclude. The correct answer is not that the suspension is or is not justiciable, but that the constitutional design places the automatic consequence beyond review while leaving every discretionary step within it.

A worked example

A Proclamation is issued reciting armed rebellion. A State enacts a law restricting processions, with a recital that it relates to the Proclamation. A citizen challenges it under article 19(1)(b), and the State pleads article 358.

Does article 358 apply? No. Since 1978 the article operates only on a Proclamation declaring a threat by war or external aggression, and this Proclamation recites armed rebellion.

Does the recital help the State? No. The recital is a necessary condition under clause (2), not a sufficient one; the ground condition in clause (1) is not satisfied.

Can the citizen challenge the Proclamation itself? He may, on the Bommai grounds, and the Union would have to produce the material if it defended it; but he does not need to, because article 358 does not apply.

Suppose an order under article 359 named articles 14, 19 and 21. So far as it names article 21 it would be beyond the power in clause (1), which excepts articles 20 and 21.

Could the citizen still be heard? Yes, on article 21 in any event, and on the pleas that survive an order under article 359.

What it does NOT mean

It does not mean the Proclamation cannot be reviewed. The express bar was removed in 1978.

It does not mean article 74(2) is irrelevant. It still bars inquiry into what advice was tendered, though not into the material.

It does not mean article 358 is unreviewable in its application. Whether it applies at all is decided by a court on the Proclamation, the dates, the recital and the competence of the law.

It does not mean a Proclamation has ever been struck down. None has, there having been none since 1975.

Quick revision

• The premise is false: art 358 operates automatically on a Proclamation of the specified kind, so there is no act of suspension to review.
• Three real questions: the Proclamation, the applicability of art 358, and an order under art 359.
• The Proclamation: art 352(1) satisfaction; art 74(2) bars inquiry into the advice; the 38th Amendment's final and conclusive clause was removed by the 44th; on S.R. Bommai the power is conditioned, reviewable for mala fides or wholly irrelevant or extraneous grounds, the material must be produced, and the court examines relevance and not adequacy.
• Article 358's applicability raises six justiciable questions: the ground of the Proclamation, whether it is in operation, the recital in the law, whether the executive action was under such a law, competence outside Part III, and the proviso's nexus for a partial emergency.
• An art 359 order is reviewable on whether it may name the rights it names, whether it covers the plea, whether it is within its own conditions, its territorial extension, and mala fides.

Test yourself

1. What is wrong with the question as MU sets it? That article 19 is not suspended by any authority's decision; article 358 operates by force of the Constitution while a Proclamation of the specified kind is in operation, so there is no act of suspension capable of being challenged.

2. What happened to the express bar on reviewing the President's satisfaction? The 38th Amendment 1975 made the satisfaction final and conclusive and beyond question in any court on any ground; the 44th Amendment 1978 removed that clause from articles 352, 356 and 360.

3. What does article 74(2) protect, and what does it not protect? It bars an inquiry into whether any and what advice was tendered by Ministers to the President; on S.R. Bommai it does not bar the court from calling for the material on which the satisfaction was formed, that material not becoming part of the advice.

4. List four of the six justiciable questions about the applicability of article 358. Any four of: whether the Proclamation is on the ground of war or external aggression; whether it is in operation at the relevant time; whether the law contains the required recital; whether the executive action was taken under a law containing such a recital; whether the law is otherwise within the competence of the legislature, article 358 freeing the State only from Part III; and whether the proviso's nexus is made out where the Proclamation operates in part of India only.

5. Give the correct conclusion in one sentence. That the constitutional design places the automatic consequence of a Proclamation beyond review while leaving every discretionary step, the Proclamation itself, the making of an order under article 359, and the application of article 358 to a given law, within it.