CDS (II) 2023 General Knowledge · Question 93 of 120

Correct — A, Protection in respect of conviction for offences. That heading belongs to Article 20, and Article 20 is one of the two Fundamental Rights that survive an Emergency untouched. Article 359(1) lets the President, while a Proclamation of Emergency is in operation, suspend the right to move any court for the enforcement of rights conferred by Part III — but its own words carve out an exception: 'except articles 20 and 21'. That exception was put in by the Forty-fourth Amendment in 1978, after the experience of the 1975 Emergency, and it is the direct answer to the Habeas Corpus case of 1976, in which the Supreme Court had held that even the right to life could not be enforced while enforcement of Part III stood suspended. Article 20 protects against retrospective criminal law, double jeopardy and self-incrimination, and Article 21 protects life and personal liberty; neither can now be reached by a Presidential order under Article 359.

• (b)Right to constitutional remedies — Article 32 is precisely what Article 359 operates on — a Presidential order suspends the right to move a court for the enforcement of specified Part III rights. It is not among the protected pair.
• (c)Right to move freely throughout the territory of India — That is one of the six freedoms in Article 19, and Article 358 suspends Article 19 automatically the moment an Emergency is proclaimed on grounds of war or external aggression.
• (d)Equality before law — Article 14 is an ordinary Part III right for this purpose; its enforcement can be suspended by an order under Article 359. Only Articles 20 and 21 are excepted.

Two provisions govern Fundamental Rights during a national Emergency. Article 358 suspends Article 19 automatically, and only where the Emergency rests on war or external aggression, not on armed rebellion. Article 359 works differently: the President may by order suspend the right to move any court to enforce specified Part III rights, for a stated period. The rights themselves are not abolished by either; what is taken away is enforcement, and after 1978 even that cannot touch Articles 20 and 21.

The question says 'not suspended', so the answer has to be one of the two protected Articles, and only one of the two appears among the options. Recognising Article 20 from its marginal heading is the skill being tested — protection in respect of conviction for offences is the Constitution's own heading for it, and it is easy to read past. The other three options are all rights that can be reached during an Emergency, one of them, Article 19, automatically. The Forty-fourth Amendment made several other changes in the same direction: armed rebellion replaced internal disturbance as a ground, a written Cabinet recommendation became necessary, and the parliamentary approval requirements were tightened.

• Article 359(1) allows the President to suspend the right to move courts for enforcement of Part III rights during an Emergency, 'except articles 20 and 21'.
• That exception was inserted by the Constitution (Forty-fourth Amendment) Act, 1978.
• Article 20 covers protection against retrospective criminal law, double jeopardy and compelled self-incrimination.
• Article 358 suspends Article 19 automatically, and only when the Emergency is proclaimed on grounds of war or external aggression.
• Neither Article suspends the rights themselves — what is suspended is the ability to enforce them in court.

• Assuming the right to constitutional remedies is untouchable; Article 359 works directly on it.
• Reading Article 358 as covering all Fundamental Rights; it covers only Article 19.
• Thinking the rights are abolished during an Emergency; only their enforcement is suspended.

As a which-right-survives item, usually with Article 20 hidden behind its constitutional heading.

• practice — not a real PYQ

  During a national Emergency, the enforcement of which two Articles can never be suspended?

  • (a)Articles 14 and 19
  • (b)Articles 19 and 21
  • (c)Articles 20 and 21
  • (d)Articles 25 and 32

  Answer(c) Articles 20 and 21 — expressly excepted in Article 359(1) by the Forty-fourth Amendment, 1978.

• practice — not a real PYQ

  Article 358 of the Constitution of India suspends which Article automatically during an Emergency declared on grounds of war or external aggression?

  • (a)Article 14
  • (b)Article 19
  • (c)Article 21
  • (d)Article 32

  Answer(b) Article 19 — the six freedoms are suspended automatically, unlike other rights, which need a Presidential order under Article 359.