ALTERNATE SOLUTION OF THE ARTICLE 359 OF THE CONSTITUTION
Author: Shyam Kumar, pursuing B.A.,LL.B. from ASIAN LAW COLLEGE NOIDA
As we know that the Constitution of India came on 26 January 1950. And it also known as the world largest written constitution. In this many important things incorporated and out all one is EMERGENCY PROVISION. The emergency provisions are given from Article 352 to 360 in Part XVIII.
In this Journal we talk specially on Article 359 which is SUSPENSION OF THE ENFORCENMENT OF THE RIGHTS CONFERRED BY PART III DURING EMERGENCY.
“359. Suspension of the enforcement of the rights conferred by Part III during emergencies
(1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III (except Article 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order”.
Objective behind the Article 359 of the constitution of India i.e.SUSPENSION OF THE ENFORCENMENT OF THE RIGHTS CONFERRED BY PART III DURING EMERGENCY is to maintain law and order and Harmony in our country during Emergency in the emergency situation, we consider state problem consider over the citizen problem. It is necessary to resolve state or national problem first to tackle the common problems of India.
Before we move to provision we should take something into consideration that Emergency is declare by the president only and if emergency is national then initial time is One month or if emergency in state level than initial time of emergency Two months.
Now as per the provision it is clear that suspension of the Part III of the constitution (Expect article 20 and 21) need president declaration and it cannot automatically suspend as article 358.
And in second part of this article that all the proceedings pending in court for the enforcement of rights will suspended as prescribed in the proclamation by president. Note suspension can be till the emergency or any shorter period of time as president’s description.
There are two category of cases in court
1. Those cases which are already file in court before the emergency.
And these cases are not recital with Emergency.
2. Violation of fundamental Rights by state during Emergency.
Issue: is complete suspension of enforcement of part III of the constitution is valid in modern time?
As we know that at the time of independent our India is totally offline and it needs to suspend the right to move court (Article 32 of the constitution) for tackle the situation. And that time no alternative option is available to hear the case which is not related to emergency of cases which is not related to emergency.
But in modern time India is the fastest developing country in the World. Now after the Covid Pandemic (specially second Lockdown). Approximatively all courts start to hear the case online (virtual).
This virtual mode is an alternative solution for the Period of emergency. Because as we know that all cases which is pending in court and those violations during Emergency are not enforceable in court of law as the period declare by proclamation by president.
Solution: it is an important to suspend the enforcement of part III of the constitution of India during Emergency but due to this those cases also suffer which is not related to Emergency like cases of violation of part III before the Emergency, etc. So Through virtual mode we can hear those cases which is not related to Emergency and not recital wit emergency via a online mode (ZOOM meeting).
As we see that time to time our constitution is amended as per the society change. Because constitution is made for the people of India and with change in time need to amend the Constitution. Ex: in 1951 our first amendment of constitution.
So with the evolve in time our India becoming the virtual in all field and we see in the Covid lockdown our courts also became virtual also. So by seeing this we can say that during emergency there is no need to suspend the enforcement of the Part III of the constitution (even the pending cases which is not related to emergency). In virtual mode no need to move court and “the stop to move court” in Article 359 is because it lead to more problem in state.
Finally, we conclude with suggestion that in Article 359 need of Amendment and add the virtual mode open to hear the enforcement of part III because it not related to Emergency or we can say that cases of enforcement of part III which arise before the Emergency is not recite with emergency.