Differences between Articles 358 and 359

Art 358

While proclamation of emergency declaring that security of India or any part of the territory of India is threatened due to war or external aggression, is in operation, the state shall not be limited by art 19. In other words, govt may make laws that transgress upon the freedoms given under art 19 during such emergency. However, such a law will cease to have effect as soon as emergency ends. Further, every such law or very executive action that transgresses upon freedoms granted by art 19 must recite that it is in relation to the emergency otherwise, it cannot be immune from art 19.

It also says that any acts done or omitted to be done under this provision cannot be challenged in the courts after the end of emergency. 

In the case of M M Pathak vs Union of India AIR 1978, SC held that the rights rights granted by 14 to 19 are not suspended during emergency but only their operation is suspended. This means that as soon as emergency is over, rights transgressed by a law will revive and can be enforced. In this case, a settlement that was reached before emergency between LIC and its employees was rendered ineffective by a law during emergency. After emergency was over, SC held that the previous settlement will revive. This is because the emergency law only suspended the operation of the existing laws. It cannot completely wash away the liabilities that preexisted the emergency.

Art 359

This article provides additional power to the president while proclamation of emergency is in operation, using which the president can, by an order, declare that the right to move any court for the enforcement of rights conferred by part III except art 20 and 21, shall be suspended for the period the proclamation is in operation of a shorter period as mentioned in the order. Further, every such law or every executive action recite that it is in relation to the emergency.

In the case of Makhan Singh vs State of Punjab AIR 1964, SC distinguished between art 358 and 359 as shown below:

Art 83(2) While the proclamation is in operation, the president may extend the normal life of the Lok Sabha by one year each time up to a period not ex

ceeding beyond 6 months after proclamation ceases to expire.