Immunities and Emergency: Articles 359 and 361

In one line

Two provisions of the Constitution close the court's door on their own terms: one during an Emergency and one for the President and the Governors.

In the wording a student can write in an exam: Article 359 permits the President, while a Proclamation of Emergency is in operation, to declare that the right to move any court for the enforcement of such rights conferred by Part III as may be mentioned shall remain suspended, but after the Forty-fourth Amendment such an order cannot extend to Articles 20 and 21; Article 361 provides that the President and the Governors are not answerable to any court for the exercise and performance of the powers and duties of their office and that no criminal proceedings shall be instituted or continued against them while in office.

Article 359

What it does. It does not suspend the rights themselves; it suspends the right to move a court to enforce those mentioned in the order, for the period of the Emergency or a shorter period stated.

What it produced. Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207.

Facts. A Presidential order of 27 June 1975 suspended the right of any person to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22. Persons detained under the Maintenance of Internal Security Act 1971 nevertheless obtained relief in habeas corpus petitions before several High Courts, and the State appealed.

Held. By majority, no person had locus standi to move a writ petition for habeas corpus to challenge the legality of a detention while the order was in force, because Article 21 was the sole repository of the right to life and personal liberty and the right to move a court to enforce it had been suspended. Justice H.R. Khanna dissented, holding that the sanctity of life and liberty is not the gift of the Constitution and that the State has no power to deprive a person of life or liberty without the authority of law even in an emergency.

Why it matters here. It is the only occasion on which the door was actually closed, and it is the reason the Forty-fourth Amendment was passed.

What the Forty-fourth Amendment did. It amended Article 359 so that an order under it cannot suspend the enforcement of the rights conferred by Articles 20 and 21. So a habeas corpus petition alleging deprivation of personal liberty otherwise than by procedure established by law is maintainable even during an Emergency.

Article 358, which is often confused with it

Article 358 suspends the operation of Article 19 itself during a Proclamation of Emergency declared on the ground of war or external aggression, so laws made and executive action taken during that period cannot be questioned on the ground that they violate Article 19.