The Constitution of India has guaranteed fundamental rights to its citizens, these are the rights which are deemed essential to protect the right and liberty of individuals against the encroachments of the power delegated by them to their government. It is important for the preservation of public and private rights. The rights enshrined in Part III of the Constitution are regarded as fundamental because they are most essential for the attainment by the individual or his full intellectual, moral and spiritual status. Negation of these rights will keep the moral and spiritual status of an individual stunned and his potential undeveloped.
Speaking about the importance of fundamental rights Justice Bhagwati observed “These fundamental rights represents the basic value cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of individuals and create conditions in which every human being can develop his personality to the fullest extent. They weave a ‘pattern of guarantee’ on the basic structure of human rights, and impose negative obligations on the State not to encroach on individual liberty in its various dimensions”
Though these fundamental rights are very important to every individual for their human existence, however, these rights are not absolute rights, there are certain restrictions for the practice of these rights. The Constitution of India, therefore, has provided curtailment or suspension of these rights in some circumstances.
As per Article 358 of the Indian Constitution when the proclamation of emergency is made by the President under Article 352 (National emergency due to war, external attack or armed rebellion), all the freedoms guaranteed in Article 19 shall be automatically suspended and the suspension will exist as long as the emergency period.
Within that period, any executive action or law made by the government shall not be challenged in any court on the ground that it is violative of Article 19 of the Constitution. However, the suspension of the fundamental right guaranteed under Article 19 shall automatically revive and begin to operate again as soon as the proclamation of emergency order ceases. Article 358 also makes it clear that any things that are done or omitted to be done within the period of emergency cannon be challenged before any court even after the expiry of the emergency period.
Further Article 359 empowers the President of India to order for the suspension of the right to move any court for the enforcement of fundamental rights provided in Part III of the Constitution except Article 20 and Article 21 during the period of emergency. The suspension of the right to move to any court for the enforcement of fundamental rights can only be done by the order of the President of India. The President in his order will mention the right whose enforcement will be suspended. The order of the President may extend to the whole or any part of the territory of India.
Thus under Article 358 and Article 359, the fundamental right can be suspended.
However, it should be noted that under Article 358 only the rights which are guaranteed in Article 19 and not any other rights shall be suspended and this suspension will take place as automatically as soon as the President proclaimed an emergency under Article 352. No suspension order is required for the same.
But, Under Article 359, the suspension of fundamental rights shall not take place automatically. It will only take place by a suspension order by the President of India, but this suspension order shall not affect Article 20 and Article 21. That means even after the proclamation of emergency or by suspension order of the President, the fundamental rights provided in Article 20 and Article 21 shall not be suspended.
