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Q. If a National Emergency is declared on the ground of armed rebellion:
1. Fundamental Rights under Article 19 are automatically suspended.
2. President can suspend the right to move the Court for the enforcement of fundamental rights.
3. the enforcement of the fundamental rights guaranteed by Articles 21 and 22 cannot be suspended.
Which of the statements given above is/are correct?

(A) 1 and 3 only
(B) 2 only
(C) 2 and 3 only
(D) 1, 2 and 3

Correct Answer - Option(B)
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Explanation by: Admin

• Articles 358 and 359 describe the effect of a National Emergency on Fundamental Rights. Article 358 deals with the suspension of the Fundamental Rights guaranteed by Article 19, while Article 359 deals with the suspension of other Fundamental Rights (except those guaranteed by Articles 20 and 21).

• According to Article 358, when a proclamation of national emergency is made, the six Fundamental Rights under Article 19 are automatically suspended. No separate order for their suspension is required.

• The 44th Amendment Act of 1978 restricted the scope of Article 358 in two ways. o Firstly, the six Fundamental Rights under Article 19 can be suspended only when the National Emergency is declared on the ground of war or external aggression and not on the ground of armed rebellion. Hence statement 1 is not correct. o Secondly, only those laws which are related to the Emergency are protected from being challenged and not other laws. Also, the executive action taken only under such a law is protected.

• Article 359 authorizes the president to suspend the right to move any court for the enforcement of Fundamental Rights during a National Emergency. (Hence statement 2 is correct). This means that under Article 359, the Fundamental Rights as such are not suspended, but only their enforcement. The said rights are theoretically alive but the right to seek remedy is suspended. The suspension of enforcement relates to only those Fundamental Rights that are specified in the Presidential Order. Further, the suspension could be for the period during the operation of emergency or for a shorter period as mentioned in the order, and the suspension order may extend to the whole or any part of the country. It should be laid before each House of Parliament for approval.

• The 44th Amendment Act of 1978 restricted the scope of Article 359 in two ways. o Firstly, the President cannot suspend the right to move the Court for the enforcement of fundamental rights guaranteed by Articles 20 to 21. In other words, the right to protection in respect of conviction for offenses (Article 20) and the right to life and personal liberty (Article 21) remain enforceable even during an emergency. Hence statement 3 is not correct. o Secondly, only those laws which are related to the emergency are protected from being challenged and not other laws and the executive action taken only under such a law, is protected.

Explanation by: Admin

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