The Constitution of India
Article 358
Suspension of provisions of article 19 during emergencies
(1) While a Proclamation of Emergency declaring that the security of India or any part of the territory thereof 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, but any law so made shall, to the extent of the incompetency, cease to have effect 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:
Provided that where such Proclamation of Emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation.
(2) Nothing in clause (1) shall apply —
(a) to any law which does not contain a recital to the effect that such law is in relation to the Proclamation of Emergency in operation when it is made; or
(b) to any executive action taken otherwise than under a law containing such a recital.
Why this exists
Article 358 was designed to give the state extra flexibility during a genuine war-like crisis, when normal constitutional restraints on lawmaking might hamper quick, decisive action. Originally it applied whenever any Emergency was proclaimed (including for 'internal disturbance'), which allowed sweeping suspension of Article 19 rights during the 1975-77 Emergency, including press censorship and detention-related laws. After that experience, the 44th Constitutional Amendment (1978) narrowed Article 358: it now applies only during a war/external-aggression emergency, not an internal-disturbance one, and it added the recital requirement and the partial-proclamation proviso to prevent misuse and require a clear, traceable link between any suspending law and the actual emergency.
How courts read it
Courts have generally read Article 358 as an exception that must be tied strictly to genuine security threats from war or external aggression, not as a blanket license for the executive. Judicial and constitutional reform after the 1975 Emergency — most visibly through the 44th Amendment — reflected recognition that unchecked suspension of Article 19 had enabled excesses like press censorship (an issue touched on in cases such as Bennett Coleman & Co. v. Union of India). While ADM Jabalpur v. Shivkant Shukla (1976) dealt with the related Article 359 (suspension of the right to move courts) rather than Article 358 directly, it became a symbol of judicial caution being needed during emergencies, reinforcing why later amendments limited executive discretion under both articles.
Common misconceptions
- Myth: Article 358 lets the government suspend all fundamental rights whenever any Emergency is declared.
Fact: After the 44th Amendment, it only applies to Article 19 rights, and only during a war or external-aggression emergency — not one declared for 'internal disturbance' or armed rebellion. - Myth: Any law passed during an emergency automatically overrides Article 19.
Fact: The law must expressly state it is linked to the Emergency Proclamation; without that recital, it gets no protection under Article 358.