The Constitution of India
Article 359
Suspension of the enforcement of the rights conferred by Part III during emergencies
(1) 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 during which the Proclamation is in force or for such shorter period as may be specified in the order.
(1A) While an order made under clause (1) mentioning any of the rights conferred by Part III (except articles 20 and 21) is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part 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 order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect:
Provided that where a 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.
(1B) Nothing in clause (1A) 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.(
(2) An order made as aforesaid may extend to the whole or any part of the territory of India:
Provided that where a Proclamation of Emergency is in operation only in a part of the territory of India, any such order shall not extend to any other part of the territory of India unless the President, being satisfied that 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, considers such extension to be necessary.
(3) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament.
Why this exists
Article 359 was designed to give the government breathing room during a national Emergency by temporarily blocking court enforcement of certain Fundamental Rights, on the theory that litigation could hamper the state's ability to act swiftly in a crisis. However, the 1975-77 Emergency exposed how dangerous this power could be: the government suspended enforcement of Articles 14, 21, and 22, and in the infamous ADM Jabalpur case, the Supreme Court held that even the right to life and personal liberty under Article 21 could not be enforced during that suspension. The public and legal backlash led to the 44th Amendment (1978), which permanently excluded Articles 20 and 21 from the scope of Article 359, added clauses (1A) and (1B) requiring a clear 'recital' linking any rights-bypassing law to the Emergency, and required parliamentary oversight — all aimed at preventing a repeat of the 1975-77 abuses.
How courts read it
In Makhan Singh v. State of Punjab (1964), the Supreme Court held that even during suspension under Article 359, a person could still challenge detention on grounds outside Part III, such as lack of legislative competence or mala fide action, since only the specific Part III rights mentioned in the presidential order were suspended, not all legal remedies. The most consequential episode was ADM Jabalpur v. Shivkant Shukla (1976), where the majority held that during the Emergency suspension, not even Article 21 (right to life and personal liberty) could be enforced against detention, a ruling widely criticized as one of the Supreme Court's darkest moments and effectively overruled in spirit by later judgments, including the Court's own acknowledgment of error in K.S. Puttaswamy v. Union of India (2017). The 44th Amendment's exclusion of Articles 20 and 21 from Article 359's reach was a direct legislative response to prevent ADM Jabalpur from recurring.
Common misconceptions
- Myth: Article 359 lets the President suspend all Fundamental Rights during an Emergency.
Fact: It only suspends people's ability to go to court to enforce specified rights — the rights themselves aren't erased, and Articles 20 and 21 can never be included in such an order. - Myth: Once Article 359 is invoked, the right to life (Article 21) can be denied without any remedy, as happened in 1975-77.
Fact: After the 44th Amendment (1978), Articles 20 and 21 are permanently excluded from Article 359, specifically to prevent a repeat of the ADM Jabalpur ruling. - Myth: A presidential order under Article 359 permanently changes the law.
Fact: Any law made using the special power under clause (1A) automatically ceases to have effect once the suspension order ends, except for things already done under it.