Article 359: The Text and the Mechanism

In one line

The rights remain; the courtroom door closes on them for the period the order names.

In the wording a student can write in an exam: article 359(1) provides that 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 articles 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. Clause (1A) provides that while such an order is in operation, nothing in Part III conferring those rights shall restrict the power of the State to make any law or take any executive action which it would but for Part III be competent to make or take, such a law ceasing to have effect to the extent of the incompetency when the order ceases. Clause (1B) excludes from clause (1A) any law without a recital that it relates to the Proclamation and any executive action taken otherwise than under such a law. Clause (2) provides that the order may extend to the whole or any part of India, and clause (3) that every order shall be laid before each House of Parliament as soon as may be after it is made.

Clause (1), phrase by phrase

Where a Proclamation of Emergency is in operation. The order presupposes a Proclamation under article 352 and cannot outlive it.

The President may by order declare. It is discretionary and it requires an instrument. Nothing happens automatically, which is the contrast with article 358.

That the right to move any court. Not the right itself. The distinction is the whole of this chapter, and it is what the marginal note obscures by using the word suspension.

For the enforcement of such of the rights conferred by Part III (except articles 20 and 21) as may be mentioned in the order. Three limits: the rights must be mentioned, so an unmentioned right is unaffected; they must be rights conferred by Part III; and they can never include articles 20 and 21, those words having been substituted by the 44th Amendment.

And all proceedings pending in any court for the enforcement of the rights so mentioned. Pending proceedings are suspended too, which the 1962 order had not provided and the 1975 order did.

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. The order may be for less than the life of the Proclamation but never for more.