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Rahul Kumar

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Article 359 of the Constitution is itself unconstitutional

Posted On: 20 Dec, 2015 Others में

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After replying to a query on Article 359 of the Constitution of India to a facebook friend who is a law aspirant,presently a student of class tenth ,i found this Article unconstitutional and void.

My observation is reproduced below-

Article 359 of the Constitution is the further imposition of restrictions on fundamental rights (except Article 20 and Article 21) next after Article 358.

In summary Article 358 suspends provisions of Article 19 during Emergency declared under Article 352(1) due to reason of by war or by external aggression,but not due to the armed rebellion for which emergency can also be declared under Article 352(1).Also,Article 19 is not suspended during financial emergency declared under Article 360.

It is also to be noted that there is no provision of Emergency on ground of internal disturbance.Under Article 355 the Union of India has only been inter alia provided duty to protect every state against internal disturbance.

The main reason behind imposition of emergency on 25 June 1975 by Indra Gandhi Government was internal disturbance,for which there is no provision in the Constitution to impose emergency.

Article 359 of the Constitution suspends the enforcement of fundamental rights conferred by Part III during emergencies,except Article 20 and Article 21,as such the right to move any court for the enforcement of such rights and all proceedings pending in any court for the enforcement of such rights shall remain suspended during whole period of emergency or for such shorter period as may be specified in the order by the President.

As per text of this article i.e. Article 359,it is apparent that this Article applies also in financial emergency and emergency due to armed rebellion.In my view,this article is itself unconstitutional and void.

There may be reasons for suspension of Article 19 under Article 358 during emergency on ground of war or external aggression,but prohibiting to move Court even for Articles other than Article 19,except Articles 20 and 21,and suspending pending proceedings of the court can’t be justified at any cost.In accordance with Article 358,Article 359 should have been confined only to suspension of enforcement of Article 19 and only in case of emergency due to war or external aggression,not in case of financial emergency and emergency due to armed rebellion.

Even Article 21-A i.e.Right to Education and Articles 23 and 24 i.e. respectively Prohibition of traffic in human beings and forced labour and Prohibition of employment of children in factories etc under Right Against Exploitation get suspended.In such circumstances,how Article 359 can be justified?

The Supreme Court ought to take step under Article 142 to declare Article 359 unconstitutional and void.



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