http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 49  

PETITIONER: MAKHAN SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB(AND CONNECTED APPEALS)

DATE OF JUDGMENT: 02/09/1952

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SARKAR, A.K. SUBBARAO, K. WANCHOO, K.N. HIDAYATULLAH, M. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1964 AIR  381            1964 SCR  (4) 797  CITATOR INFO :  R          1964 SC1128  (1)  R          1966 SC 657  (6)  R          1966 SC 740  (5,24,30)  F          1966 SC1078  (5)  RF         1967 SC 483  (5)  R          1968 SC1313  (10)  RF         1971 SC 530  (233)  R          1976 SC 958  (26)  E          1976 SC1207  (14,33,40,43, TO 49,547)  R          1977 SC1027  (12,23)

ACT: Constitution of India, 1950, Arts. 352 and  359-Proclamation of  emergency-President’s order restricting  enforcement  of fundamental rights-Detention under Defence of India Act  (LI of 1962) and Defence of India Rules-Application for  release under  s. 491, Code of Criminal Procedure (Act V  of  1898)- Maintainability.

HEADNOTE: The  appellants were detained under r. 30(l) of the  Defence of India Rules made by the Central Government under s. 3  of the  Defence of India Ordinance, 1962.  They applied to  the Punjab and Bombay High Courts under s. 491(1)(b) of the Code of   Criminal  Procedure  and  their  case  was   that   ss. 3(2)(15)(i) and 40 of the Defence of India Act, 1962, and r. 30(1)(b) of the Defence of India Rules, which were continued under the Act, were unconstitutional and invalid inasmuch as they  contravened their fundamental rights under  Arts.  14, 21,  22(4),  (5)  and  (7) of  the  Constitution  and  that, therefore,  they should be set at liberty.  The High  Courts held  that the Presidential Order which had been  issued  on November  3,  1962, under Art. 359(1) of  the  Constitution, after a declaration of emergency under Art. 352,  consequent on the Chinese invasion of India, barred their right to move the said petitions and dismissed them.  These appeals raised two  common questions in this Court, (1) what was  the  true

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 49  

scope and effect of the Presidential Order issued under Art. 359(1), and (2) did the bar created by the Order operate  in respect of the applications under s. 491(1)(b) of the  Code. The Presidential Order was as follows:-               "G.S.R.   1464--In  exercise  of  the   powers               conferred  by  cl. (1) of article 359  of  the               Constitution,  the President  hereby  declares               that the right of any person to move any court               for the enforcement of the right conferred  by               article 21 and article 22 of the  Constitution               shall  remain suspended for the period  during               which  the  Proclamation of  Emergency  issued               under clause (1) of article 352 thereof on the               26th October 1962 is in force, if such  person               has been deprived of any such rights under the               Defence  of India Ordinance, 1962 (4 of  1962)               or any rule or order made thereunder." By  a later amendment of the Order Art. 14 was  incorporated into it. 798 Held:(per     Gajendragadkar,     Sarkar,      Wanchoo, Hidayatullah, Das Gupta and Shah, JJ.) that the  proceedings taken  by  the  appellants  in  the  High  Courts  under  s. 491(1)(b) of the Code were hit by the Presidential Order and must be held to be incompetent. Article  359  of  the Constitution was not  capable  of  two interpretations  and  it  was, therefore  not  necessary  to decide  the controversy raised by the parties as to  whether that  Article  should  be  interpreted  in  favour  of   the President’s power granted by it or the fundamental rights of the citizens. The  King (At the Prosecution of Arthur Zadig) v.  Halliday, [1917]  A.C.  260, Liversidge v. Sir John  Anderson,  [1942] A.C. 206, Keshav Talpade v. The King Emperor, [1943]  F.C.R. 49, Nakkuda Ali v. M. F. De S. Jayaratne, [1951] A.C. 66 and King Emperor v.     Vimalabal Deshpande, L.R. 73 1. A.  144, considered. The  words  ’any court’ in Art. 359(1), construed  in  their plain grammatical meaning, must mean any court of  competent jurisdiction  including’  the  Supreme Court  and  the  High Courts before which the rights specified in the Presidential Order  can be enforced. It was not correct to say  that  the use  of the words was necessary so as to include such  other courts  as might be empowered in terms of Art.  32(3).   Nor was  it  correct to say that the words could not  include  a High  Court as its power to issue a writ under  Art.  226(1) was discretionary. In  judging whether a particular proceeding fell within  the purview of the Presidential Order the determining factor was not  its form nor the words in which the relief was  couched but  the  substance of it.  If in granting  the  relief  the court had to consider whether any of the fundamental  rights mentioned  in the Presidential Order, had been  contravened, the  proceeding was within the Order, whether it  was  under Art. 32(l) or 226(1) of the Constitution. The right to move the court for writ of habeas corpus  under s.  491(1)(b)  of the Code of Criminal Procedure was  now  a statutory  right  and could no longer be claimed  under  the common law. Girindra  Nath Banerjee v. Birendra Nath Pal I.L.R. 54  Cal. 727,  District Magistrate, Trivandrum v. K. C.  Mammen  Map- pillai,   I.L.R.  [1939]  Mad.  708,  Matthen  v.   District Magistrate, Trivandrum L.R. 66 I.A. 222 and King Emperor  v. Sibnath Banerji, L.R. 72 I.A. 241, referred to. Since  the promulgation of the Constitution the two  methods

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 49  

by  which  a  citizen could enforce his  right  of  personal freedom were (i)    by  a  writ under Art.  226(1)  or  Art. 32(l), or (ii) under s.  491(1)(b)  of the Code of  Criminal Procedure.   Whichever  method he adopted if  the  right  he sought to enforce was a fundamental right guaranteed by  the Constitution the matter must, come within Art. 359(1) of the Constitution.  That the court could exercise its power under s. 491(1)(b) suo motu could make no 799 difference and Arts. 372, 225 or 375 could provide no  valid ground  of attack.  The suspension of the right to move  any court,  as  under the Presidential Order,  must  necessarily suspend the Court’s jurisdiction accordingly. The right to challenge a detention order under s.  491(1)(b) of  the  Code had been enlarged by  the  fundamental  rights guaranteed by the Constitution and when a detenu relied upon such  rights  in his petition under that section he  was  in substance  seeking to enforce his fundamental  rights.   The prohibition  contained in Art. 359(1) and  the  Presidential Order must, therefore, apply. The expression "right to move any court" in Art. 359(1)  and the Presidential Order takes in all legal actions, filed  or to be filed, in which the specified rights are sought to  be enforced and covers all relevant categories of jurisdictions of  competent  courts  under which the  said  actions  would other-wise have been normally entertained and tried. Sree  Mohan Chowdhury v. Chief Commissioner Union  Territory of Tripura, [1964] 3 S.C.R. 442, referred to. Even  though  the impugned Act may be invalid by  reason  of contravention  of Arts. 14, 21 and 22, as contended  by  the appellants,  that invalidity could not be challenged  during the period prescribed by the Presidential Order and it could not  be  said that the President could not because  of  such invalidity issue the order. Where,  however,  the  challenge  to  the  validity  of  the detention  order  was based on any right  other  than  those mentioned  in the Presidential Order, the detenu’s right  to move  any court could not be suspended by  the  Presidential Order because the right was outside Art. 359(1). Where again the detention was challenged on the ground  that it contravened the mandatory provisions of the relevant  act or  that it was malafide and was proved to be so and in  all cases falling under the other categories of s. 491(1) of the Code  excepting  those under s. 491(1)(b), the  bar  of  the Presidential  Order could have no application.  So also  the plea that the operative provision of the law under which the order  of  detention  was made suffered  from  the  vice  of excessive delegation, was an independent plea not  relatable to  the  fundamental rights mentioned  in  the  Presidential Order and its validity had to be examined. The  plea that s. 3(2)(15)(i) and s. 40 of the impugned  Act suffered   from   excessive  delegation  must   fail.    The legislative policy was broad stated in the preamble and  the relevant  provisions of ss. 3(1) and 3(2) gave detailed  and specific  guidance to the rule making authority and  it  was not correct to say that the Act had by the impugned sections delegated   essentially   legislative   function   to   that authority.   Rule  30(1)(b) which was  consistent  with  the operative provisions of the Act could not also be challenged on that ground. 800 In  "  The  Delhi Laws Act, 1912  etc.  [1951]  S.C.R.  747, Harishankar  Bagla v. The State of Madhya Pradesh, [1955]  1 S.C.R. 380, Bhatanagars and Co. Ltd., v. The Union of India, [1957] S.C.R. 701, relied on.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 49  

The impugned Act could not also he struck down as a piece of colourable legislation because the Preventive Detention Act, 1950,  was already on the Statute book.  The Parliament  had power  under Entry 9, List I of the Seventh Schedule to  the Constitution  and  if  in view of the grave  threat  to  the security of India it passed the Act, it could not be said to have acted malafide. If  the Parliament thought that the executive would  not  be able to detain citizens reasonably suspected of  prejudicial activities  by a recourse to the Preventive  Detention  Act, 1950,   which  provided  for  the  required   constitutional safeguards and the impugned Act which it enacted did not, it could not be suggested that it was acting malafide.  Even if the  impugned  Act  contravened  Arts. 14  and  22  and  the detentions  thereunder  were- invalid, Art. 359(1)  and  the Presidential Order, which were precisely meant to meet  such a  situation, barred investigation on the merits during  the period prescribed by the Order. The  proceeding under s. 491(1)(b) of the Code is  one  pro- ceeding and the sole relief that can be claimed under it  is release  from the detention.  If that could not  be  claimed because of the Presidential Order it was unreasonable to say that  a  mere  declaration that the  impugned  Act  and  the detention  thereunder were invalid could be made.  Such a  - declaration  is clearly outside the purview of s.  491(1)(b) of  the  Code  as  also of Arts. 226(1)  and  32(l)  of  the Constitution. The  period for which the emergency should continue and  the restrictions  that should be imposed during its  continuance are  matters that must inevitably be left to the  executive. In  a democratic state the effective safeguard  against  any abuse  of  power  in  peace as  also  in  emergency  is  the existence of enlightened, vigilant and vocal public opinion. Liversidge  v. Sir John Anderson, [19421 A.C. 206,  referred to. The  inviolability of individual freedom and the majesty  of law   that   sustains  it  are  equally  governed   by   the Constitution which has made this Court the custodian of  the fundamental  rights  on  the one hand  and,  on  the  other, provided    for   the   declaration   of   the    emergency. Consequently,  in  dealing with the right of  a  citizen  to challenge  the  validity of his detention,  effect  must  be given to Art. 359(1) and the Presidential Order issued under it.   The  right specified in that Article must be  held  to include    such    right    whether    constitutional     or constitutionally  guaranteed and the words "any court"  must include the Supreme Court and the High Court. The Punjab and the Bombay High Courts were, therefore  right in  their decision that the applications under s.  491(1)(b) of 801 the  Code  were  incompetent in so far  as  they  sought  to challenge the validity of the detentions on the ground  that the  Act  and  the Rules under which the  orders  were  made contravened  Arts.  14,  21  and 22(4)(5)  and  (7)  of  the Constitution. Per  Subba Rao, J. It was clear that s. 3(2)(15)(i)  of  the Defence  of India Act, 1962, and r. 30(1)(b) made under  the Act  contravened the relevant provisions of Art. 22  of  the Constitution and were, therefore, void. Deep  Chand  v. The State of Uttar Pradesh, [1959]  Supp.  2 S.C.R. 840, Mahendra Lal v. State of U.P., A.I.R. 1963  S.C. 1019, A.  K.  Gopalan v. State of Madras, [1950] S.C.R.  88, referred to. Under the Constitution, every person has a right to move the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 49  

Supreme Court, the High Courts or any other court or  courts constituted  by  the  Parliament under Art.  32(3)  for  the enforcement of fundamental rights in the manner  prescribed. But  while  the  right  to  move  the  Supreme  Court  is  a guaranteed right, the right to move the others is not so. Article 359, properly construed, meant that the bar  imposed by the Presidential Order applied not only to the guaranteed right to move the Supreme Court but also the rights to  move the  other  courts  under  Art.  32  and  Art.  226  of  the Constitution. There  is  no  new  rule of  construction  peculiar  to  war measures. It is always the same, whether in peace or in war. The fundamental rule is that the courts have to find out the expressed intention of the Legislature from the words of the enactment  itself.   Words must be given their  natural  and ordinary  meaning unless there is ambiguity in the  language in  which  case the court has to adopt  that  meaning  which furthers the intention of the Legislature. A constitutional provision such as Art. 359, however, cannot be  given  a strained construction to meet a  passing  phase such as the present emergency. Rex  v.  Halliday, L.R. [19171 A.C. 260, Liversidge  v.  Sir John  Anderson,  L.R.  [1942]  A.C.  206,  Nakkuda  A1i   v. jayaratna, L.R. 1951] A.C. 66, Gibbon v. Ogden, (1824) 6  L. Ed. 23, discussed. Section 491 of the Code of Criminal Procedure is wide in its terms  and gives a discretionary power to the  High  Courts. Unlike  Arts. 32 and 226, the exercise of the power  is  not channelled  through  procedural writs or  orders  and  their technicalities cannot circumscribe the court’s discretion. Girindra  Nath Banerjee v. Birendra Nath Pal, (1927)  I.L.R. 54  Cal.  727,  District Magistrate,  Trivandrum  v.  Mammen Mappillai,   I.L.R.  1939  Mad.  708,  Matten  v.   District Magistrate,  Trivandrum, L.R. (1939) 66 I.A.  222,  referred to. Section 491 is continued by Art. 372 and -Art. 225 preserves 802 the jurisdiction of the High Court.  The power it confers on the  High Court is not inconsistent either with Art.  32  or Art.  226 or any other Article of the Constitution  and  the section  cannot, therefore, be said to have  been  impliedly superseded  even  to the extent Art. 226 empowers  the  High Court to give relief in cases of illegal detention.   Though remedial in form the section postulates the existence of the substantive  right  that no person can be  deprived  of  his liberty except in the manner prescribed by law.  It  assumes the existence of the rule of law and empowers High Court  to act  suo  motu.   The  rights,  substantive  and  procedural conferred  by it arc different from those under Arts. 32  or 226  of  the  Constitution.   It  places  the  onus  on  the custodian to prove that the detention is legal and  although in scrutinising the legality of the detention the court  may have  to  consider whether the law offends  any  fundamental rights,  that  cannot  make  the  proceeding  one  for   the enforcement  of fundamental rights or the decision  anything but  one  on  the unconstitutionality of a  law  because  of infringement of fundamental rights generally. The  mode of approach to the High Court under s. 491 of  the Code or the nature of the relief given thereunder cannot  be equated  with  those under the Constitution.   The  absolute discretionary  jurisdiction under it cannot be put on a  par with  the jurisdiction under Art. 226 which is hedged in  by constitutional limitations. Alam  Khan v. The Crown, (1947) I.L.R. 28 Lahore 274,  Ramji Lal v. The Crown, I.L.R..(1949) 11 E.P. 28, King-Emperor  v.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 49  

Vimlabai Deshpande, (1946) L.R. 73 I.A. 144, referred to. While  s. 491 gives no right to enforce fundamental  rights, operating  as it does as a check on arbitrary  action,  Art. 359  is concerned not with statutory powers but  deals  with the constitutional right and the constitutional  enforcement of it.  It was not, therefore, correct to say that Art.  359 would  be  frustrated  if s. 491 was allowed  to  stand  for Parliament might amend that section any time it liked. The  expression "right to move any court for enforcement  of such  of the rights conferred by Part 111" in Art. 359  must refer  only to the right to move under Art. 32 or  Art.  226 for the said specific relief and could not be applied to the exercise of the statutory power of the High Courts under  s. 491  of  the  Code and, consequently,  the  expression  "all proceedings pending in any court for the enforcement of  the rights" must refer to the proceedings initiated in  exercise of that right. The detenus could not, therefore, enforce their  fundamental rights  under  Arts. 21, 32 and 14  while  the  Presidential Order lasted, but that did not affect the High Court’s power under s. 491 of the Code. The  President’s Order cannot bar the detenus  from  proving even under Arts. 32(l) and 226 that the detentions were  not made                              803 under the Defence of India Ordinance or the Act as they were outside  the Ordinance or the Act or in excess of the  power conferred by them or that the detentions were made  malafide or in fraudulent exercise of power.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 80  of 1963. Appeals  by special leave from the judgment and order  dated March  26, 1963, of the Punjab High Court in  Criminal  Mis. No. 186 of 1963. Criminal Appeals Nos. 86 to 93 of 1963. Appeal  by special leave from the judgment and  order  dated February 21, 1963 of the Punjab High Court in Criminal Misc. No.  155,  102,  108,  105, 104, 101 and  107  of  1963  and judgment  and  order dated February 1963 of  the  same  High Court in Criminal Misc.  No. 99 of 1963. Criminal Appeals Nos. 109 to 111 of 1963. Appeals  from the judgment and order dated May 31,  1963  of the  Maharashtra  High Court in Criminal  Applications  Nos. 217, 218 and 114 of 1963. Criminal Appeals Nos. 114 to 126 of 1963. Appeals  from the judgment and order dated May 31,  1963  of the  Maharashtra  High Court in Criminal  Applications  Nos. 271, 265, 270, 267, 219, 220, 269, 264, 263, 266 and 273  of 1963. Criminal Appeal No. 65 of 1963. Appeal  by special leave from the judgment and  order  dated April 3, 1963, of the Maharashtra High Court (Nagpur  Bench) in Criminal Application No. 11 of 1963. M.   C. Setalvad, N. C. Chatterjee, A. V. Viswanatha Sastri, S.  Mohan Kumaramangalam, C. B. Agarwala, Sarjoo Prasad,  D. R. Prem, A. S. R. Chari, S. G. Patwardhan, W. S.  Barlingay, Etharajalu  Naidu, Veda Vyas, Raghubir Singh, K. T  .  Sule, Asif  Ansari, Hardayal Hardy, Bawa Shiv Charan Singh, S.  N. Mukherjee,  Durgabhai Deshmukh, M. S. K. Sastri, G. B.  Rai, Ganpat Rai, D. N. Mukherjee, A. N. Sinha, Udayaratnam, K. V. Raghnatha  Reddy, Janardhan Sharma, K. R. Choudhury,  B.  P.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 49  

Maheshwari, I. B. Goyal, I. K. Nag, Y. Kumar, Hardev Singh,, M.  I.  Khowaja,  S. S. Shukla, K. K.  lain,  Bishambar  Lal Khanna,  S. Murthi, P. K. Chakravarti, P. K. Chatterjee,  A. George Pudussary, Girish Chandra Mathur, Udai Pratap 804 Singh,Yogeshwar Prasad,M. R. Krishna Pillai, B. D.Sharma, K. P.  Gupta, T. S. Venkataraman, M.  Veerappa,T.R.Ramachandra, R. C. Prasad, Santosh Chatterjee,N.N. Keshwani, K.  Jayaram, R. Ganapathy Iyer, Thyagarajan, R. Vasudeva Pillai, R. V. S. Mani,  S.  C. Majumdar, Shaukat Hussain,  K.  Baldev  Mehta, Mohan  Behari Lal, Sadhu Singh, V. G. Row, S. N. Kakkar,  S. K.  Kapur,  Parthasarathy, Shanti Swarup  Bhatnagar,  K.  L. Mehta,  Satish Mehta, Brij Kishore Prasad, Ali Ahmad, V.  A. Syeid  Muhammad,  Narayanarayan Gooptu, Tapesh  Roy,  Madhan Bhaittia, Ajit Singh Banis and Brij Raj Kishore, J. B. Dada- chanji  O.  C. Mathur, Ravinder Narain, D. P. Singh,  M.  K. Ramamurthi, R. K. Garg, and S. C. Agarwal, for the appellant (in Cr.  A. No. 80 of 1963). C.   K.  Daphtary, Attorney-General, L. K.  Kaushal,  Deputy Advocate-General,  Punjab, D. D. Chaudhuri, R.  N.  Sachthey and  R. H. Dhebar, for the respondent (in Cr. A. No.  80  of 1963). A.   S. R. Chari, D. P. Singh, M. K. Ramamurthi, R. K.  Garg and  S. C. Agarwal for the appellant (in Cr.  A. No.  86  of 1963). Hardev  Singh  and Y. Kumar, for the appellants (in  Cr.  A. Nos. 87 to 93 of 1963). L.   D.    Kaushal,   Deputy    Advocate-General,    Punjab, D.D.Chaudhri,  R.  N.  Sachthey and R. H.  Dhebar,  for  the respondent (in Cr.  A. Nos. 86 to 93 of 1963). A.   S.  R. Chari, 0. P. Malhotra, B. Parthasarathy,  J.  B. Dadachanji,  0.  C.  Mathur and  Ravinder  Narain,  for  the appellant (in Cr.  A. No. 65 of 1963). N.   C.  Chatterjee, and Janardan Sharma, for the  appellant (in Cr.  A. No. 109 of 1963). K.   T.  Sule, Jitendra Sharma and Janardan Sharma, for  the appellants (in Cr.  A. Nos. 111 and 114 to 126 of 1963)  and for the Detenue-Interveners Nos. 12, 14, 16, 18 and 37). C.   K. Daphtary, Attorney-General, N. S. Bindra, B.   R. G. K.  Achar,  R.  N.  Sachthey  and  R.  H.  Dhebar,  for  the respondents  (in  Cr.   A. No. 65, 109 to  111  and  114  to 126/1963). C.   K. Daphtary, Attorney-General, H. N. Sanyal, Solicitor- General,   S.   V.  Gupte,   Additional   Solicitor-General, R.N.Sachthey and R. H. Dhebar, for intervener No. 1 Naunit Lal, for intervener No. 1. B.   Sen and P. K. Bose, for intervener No. 3. S.   P. Varma, for intervener No. 4. M.   Adhikari,   Advocate-General,   Madhya   Pradesh    and I.N.Shroff, for intervener No. 5. A.   Ranganadham Chetty and A. F. Rangam, for intervener No. 6. G.   C. Kasliwal, Advocate-General, Rajasthan, R.  H.Dhebar, R. N. Sachthey, for intervener No. 7. C.   P. Lal, for intervener no. 8. N.   C. Chatterjee, Narayan Gooptu, Tapesh Roy, D.  P.Singh, M.  K.  Ramamurthi,  R.  K. Garg  and  S.  C.  Agarwal,  for intervener No. 69. A.   S.  R. Chari, Narayan Gooptu, Tapesh Roy, D. P.  Singh, M.  K.  Ramamurthi,  R.  K. Garg  and  S.  C.  Agarwal,  for intervener No. 70. A.   S.  Peerbhoy  A.  Desai,  M.  Rajagopalan  and  K.   R. Choudhari, for interveners Nos. 79 and 80. September 2, 1963.  The judgment of P. B. Gajendragadkar, A. K. Sarkar, K. N. Wanchoo, M. Hidayatullah,B. Gajendragadkar,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 49  

J. K. Subba Rao, J. delivered a dissenting Opinion. GAJENDRAGADKAR,  J.--This group of 26 criminal  appeals  has been  placed  for  hearing and  disposal  before  a  special Constitutional  Bench, because the appeals constituting  the group raise two common important questions of Constitutional law.  Nine of these appeals have been preferred against  the decisions  of the Punjab High Court, whereas seventeen  have been  preferred  against the decisions of  the  Bombay  High Court.   All  the  appellants are  detenues  who  have  been detained  respectively  by the Punjab  and  the  Maharashtra State  Governments  under Rule 30(1)(b) of  the  Defence  of India  Rules  (hereinafter  called the Rules)  made  by  the Central Government in exercise of the powers conferred on it by section 3 of the Defence of India Ordinance, 1962 (No.  4 of  1962) (hereinafter called the Ordinance).  They  applied to the Punjab and the Bombay High Courts respectively  under section  491 (1) (b) of the Code of Criminal  Procedure  and alleged   that  they  had  been  improperly  and   illegally detained.   Their contention was that s. 3(2)(15)(1) and  s. 40 of the Defence 806 of India Act, 1962 (No. 51 of 1962) (hereinafter called ’the Act’) and Rule 36(1)(b) under which they have been  detained are constitutionally invalid, because they contravene  their fundamental  rights under Articles 14, 21 and 22(4),  (5)  & (7) of the Constitution, and so, they claimed that an  order should  be passed in their favour directing  the  respective State  Governments to set them at liberty.  These  petitions have  been  dismissed on the ground  that  the  Presidential Order   which  has  been  issued  under  Art.  359  of   the Constitution creates a bar which precludes them from  moving the  High Court under s. 491 (1) (b) Cr.  P. C. That is  how the decisions of the two High Courts under appeal raise  two common  questions  of considerable  importance.   The  first question  is  :  what is the true scope and  effect  of  the Presidential Order which has been issued under Art. 359  (1) ?  The answer to this question would depend upon a fair  and reasonable  construction of Art. 359(1) itself.  The  second question is : does the bar created by the Presidential Order issued under Art. 359(1) operate in respect of  applications made by detenues under section 491 (1) (b) of the Code?  The answer to this question would depend upon the  determination of the true character of the proceedings which the  detenues have  taken under s. 491(1)(b), considered in the  light  of the  effect  of  the Presidential Order  issued  under  Art. 359(1).   Both  the Punjab and the Bombay High  Courts  have held  against  the  appellants.   Meanwhile,  when   similar petitions  were  made  before the Allahabad  High  Court  in Criminal  Cases Nos. 1618, 1759 and 1872 of 1963 Sher  Singh Negi  v. District Magistrate, Kanpur & Anr., the  said  High Court  took a contrary view and directed the release of  the detenues who had moved it under s. 491 (1) (b) of the  Code. It  is  because the questions raised are important  and  the answers given by the different High Courts have disclosed  a sharp  difference of opinion that a Special Bench  has  been constituted  to  deal  with  these  appeals.   If  the   two principal questions are answered in favour of the  detenues, a  third  question  would  arise and  that  relates  to  the validity  of  the  impugned  sections of  the  Act  and  the relevant statutory Rules. On  the  8th  September,  1962,  the  Chinese   aggressively attacked the northern border of India and that constituted a threat to the security of India.  That is why on 807 the 26th October, 1962, the President issued a  Proclamation

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 49  

under  Art.  352  of the  Constitution.   This  Proclamation declared,  that  a  grave  emergency  existed  whereby   the security of India was threatened by external aggression.  On the   same  day,  the  Ordinance  was  promulgated  by   the President.  This Ordinance was amended by Ordinance No. 6 of 1962  promulgated  on November 3, 1962.  On  this  day,  the President issued the Order under Art. 359(1), suspending the rights of citizens to move any Court for the enforcement  of the rights conferred by Arts. 21 and 22 of the  Constitution for  the period during which the proclamation  of  emergency issued  on October 26, 1962 would be in force.  On  November 6,  1962,  the rules framed by the Central  Government  were published.   Then followed an amendment of the  Presidential Order on November 11 1962.  By this amendment, for the words and figures "article 21" the words and figures "articles  14 and 21" were substituted.  On December, 6, 1962, Rule 30  as originally  framed  was amended and Rule 30-A  added.   Last came the Act on December 12 1962.  Section 48(1) of the  Act has  provided for the repeal of the Ordinances Nos. 4 and  6 of  1962.  Section 48(2) provides that notwithstanding  such repeal,  any rules made, anything done or any  action  taken under  the aforesaid two Ordinances shall be deemed to  have been  made, done or taken under this Act as if this Act  had commenced  on October 26, 1962.  That is how the Rules  made under the Ordinance continued to be the Rules under the Act, and it is under Rule 30(1) (b) that the appellants have been detained. Before  dealing with the points which have been  raised  for our  decision  in the present appeals, it  is  necessary  to indicate  briefly at the outset the general  argument  which has  been urged before us by Mr. Setalvad on behalf  of  the appellants,  and the learned Attorney-General on  the  other side.   Art. 359(1.) which falls to be construed, occurs  in Part  XVIII  of  the  Constitution  which  makes   emergency provisions.   Whenever the security of India or any part  of the  territory of India is threatened whether by war  or  by external  aggression or internal disturbance, the  President may, under Art. 352, by proclamation, make a declaration  to -,hat effect.  Articles 353 to 360 which occur in this  Part thus constitute emergency provisions.  The learned 808 Attorney-General  contends that in construing  an  emergency provision  like Art. 359(1), we must bear in mind  the  fact that  the said Article is intended to deal with a  situation which  has posed a threat to the security of India, and  so, fundamental  rights  guaranteed by Part III  which  are  un- doubtedly of vital importance to the democratic way of  life guaranteed  by the Constitution have to be regulated  during an  emergency,  because the very security of the  nation  is exposed to serious jeopardy.  The security of the nation  on such a solemn occasion must have precedence over the liberty of the individual citizens, and so, it is urged that if Art. 359  is capable of two constructions, one in favour  of  the fundamental rights of the citizens, and the other in  favour of  the  grant of power to the President  to  control  those rights, the Court should lean in favour of the grant  rather than  in  favour  of the  individual  citizen’s  fundamental rights. In  support of this argument, the  learned  Attorney-General has  relied on two decisions of the House of Lords.  In  The King  (At the Prosecution of Arthur Zadig)  v.  Halliday,(1) Lord Finlay L. C. who was called upon to construe Regulation 14B of the Defence of the Realm (Consolidation)  Regulations Act, 1914, noticed the argument that if the Legislature  had intended  to interfere with personal liberty, it would  have

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 49  

provided,  as on previous occasions of national danger,  for suspension  of  the rights of the subject as to  a  writ  of habeas  corpus, and rejected it with the  observations  that the  Legislature -bad selected another war of achieving  the same  purposes,  probably milder as well as  more  effectual than  those  adopted on the occasion of previous  wars.   He added  that  the  suggested  rule  as  to  construing  penal statutes  and the provision as to trial of British  subjects by jury made by the Defence of the Realm Act, 1915, have  no relevance  in  dealing with an executive measure by  way  of preventing a public danger. The  majority decision of the House of Lords  in  Liversidge v.  Sir John Anderson (2 ) has also been relied upon by  the learned Attorney-General.  In that case, the House or  Lords had to consider the true scope and effect of Regulation  18B of the Defence (General) Regulations, 1939. (1)  [1917] A.C. 260, 270. (2)  [1942] A.C. 206. 809 Viscount  Maugham in I rejecting the argument of the  detenu that  the liberty of the subject was involved and  that  the legislation dealing with the liberty of the subject must  be construed, if possible, in favour of the subject and against the Crown, quoted with approval the language of Lord Finlay, L.  C., in the case of Rex v. Halliday(1).   Lord  Macmillan who  took  the  same view observed that it is  right  so  to interpret emergency legislation as to promote rather than to defeat  its efficacy for the defence of the realm.  That  is in  accordance  with  a  general  rule  applicable  to   the interpretation  of all statutes or statutory regulations  in peace  time  as well as in war time.  Lord Wright  and  Lord Romer  adopted  the  same  approach.   The  Attorney-General relies on the fact that this approach has also been  adopted by Gwyer, C. J., in Keshav Talpade v. The King  Emperor(2).. In  making his contention in regard to the proper  approach. which  the  Court should adopt in construing Art.  359,  the learned   Attorney-General  no  doubt  contended  that   the question  about  the  approach  would  arise  only  if   two constructions  are reasonably possible.  According  to  him, Art.  359 was capable of only one construction and  that  is the construction which the High Courts of Punjab and  Bombay have accepted. On the other hand, Mr. Setalvad has argued that Art. 359  is not an emergency -legislation properly so called and on  the merits, he has strongly resisted the suggestion made by  the learned    Attorney-General   that   if    two    reasonable constructions are possible, we should adopt that which is in favour  of  the grant of power to the President and  not  in favour of the citizens fundamental rights.  He has relied on the   minority  speech  of  Lord  Atkin  in  the   case   of Liversidge(3)  and  has argued that the view taken  by  Lord Atkin  should  be preferred to the majority view  which  the House  of  Lords adopted in that case.  "In  this  country", observed  Lord Atkin, "amid the clash of arms, the laws  are not  silent.   They maybe changed, but they speak  the  same language in war as in peace.  It has always been one of  the pillars  of  freedom, one of the principles of  liberty  for which  on  recent authority we are now  fighting,  that  the judges are no respecters of persons and stand between (1)  [1917] A.C. 260, 270. (3)  [1942] A.C. 206. (2) [1943] F.C.R. 49, 63. 52-2 S. C. lndia/64 810 the  subject and any attempted encroachments on his  liberty

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 49  

by  the executive, alert to see that any coercive action  is justified  in  law.   In  this  case,  I  have  listened  to arguments which might have been addressed acceptably to  the Court  of King’s Bench in the time of Charles I."  Realising that  he  was  in  a minority,  Lord  Atkin  added  that  he protested,  even  if  he did it alone,  against  a  strained construction  put  on words with the effect  of  giving  ail uncontrolled power of imprisonment to the Minister.  In this connection,   Mr.  Setalvad  referred  to   two   subsequent decisions  of the Privy Council in which the view  taken  by Lord  Atkin has been accepted, vide Nakkuda Ali v. M. F.  De S. layaratne(1), and King-Emperor v. Vimalabai Deshpande(2). In the former case, Lord Radcliffe observed that indeed,  it would  be  a  very  unfortunate thing  if  the  decision  of Liversidge’s  case  came to be regarded as laying  down  any general  rule  as to the construction of such  phrases  when they  appear in statutory enactments, and he added that  the said  decision is an authority for the proposition that  the words "if A. B. has reasonable cause to believe" are capable of meaning "if A. B. honestly thinks that he has  reasonable cause  to  believe" and that in the  context  and  attendant circumstances  of  Defence Regulation 18B they did  in  fact mean  just that.  In distinguishing the said decision,  Lord Radcliffe  made  the somewhat significant comment  that  the elaborate consideration which the majority of the House gave to  the  context  and  circumstances  before  adopting  that construction itself shows that there is no general principle that  such words are to be so understood.  Mr. Setalvad  has also  invited  our attention to the fact that  the  majority decision  of  the House of Lords in  Liversidge(3)  has  not received  the  approval  from  jurists,  (vide  Maxwell   on Interpretation  of Statutes p. 276, footnote 54,  Craies  on Statue Law p. 309, and Friedmann, Law in a Changing  Society p.  37.) Like the Attorney-General, Mr. Setalvad also  urged that  the  stage to choose between two  rival  constructions would  not arise in  the present appeals because,  according to him, the construction for which he contended was the only reasonable construction of Art. 359. (1) [1951] A.C. 66, 76.       (2)  73 I.A. 144. (3) [1942] A.C. 206. 811 In  our opinion, it is unnecessary to decide the  merits  of the rival contentions urged before us in regard to the  rule of  construction  and the approach which  the  Court  should adopt in construing Art. 359.  It is common ground that  the question of approach would become relevant and material only if  we are satisfied that Art. 359 is reasonably capable  of two  alternative constructions.  As we will presently  point out,  after hearing counsel on both sides, we  have  reached the conclusion that Art. 359 is reasonably ,capable of  only one construction and that is the construction which has been put on it by the Punjab and Bombay High Courts.  That is why we  are relieved of the task of dealing with the  merits  of the controversy between the parties on this point. Let  us then revert to the question of construing Art.  359. In  doing  so,  it may be relevant and  somewhat  useful  to compare and contrast the provisions of Articles 358 and 359. Indeed,  both Mr. Setalvad and the learned  Attorney-General contended  that Art. 359 should be interpreted in the  light of the background supplied by the comparative examination of the respective provisions contained in Arts. 358 and 359 (1) & (2).  The said two Articles read as under :- "358.   While a Proclamation of Emergency is  in  operation, nothing in article 19 shall restrict the power of the  State as  defined  in  Part III to make any law  or  to  take  any

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 49  

executive   action  which  the  State  would  but  for   the provisions contained in that Part be competent to make or to take,  but  any  law so made shall, to  the  extent  of  the competency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect 359-(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 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 a may be specified in the order. 812 (2)Any  order made as aforsesaid may extend to the whole  or any part of the territory of India." It  would  be  noticed that as soon  as  a  Proclamation  of Emergency  has been issued under Art. 352 and so long as  it lasts,  Art.  19 is suspended and the power  of  the  legis- latures  as  well as the executive is to  that  extent  made wider.  The suspension of Art. 19 during the pendency of the Proclamation of emergency removes the fetters created on the legislative  and  executive  powers by Art. 19  and  if  the legislatures  make laws or the executive commits acts  which are  inconsistent  with the rights guaranteed  by  Art.  19, their  validity is not open to challenge either  during  the ’continuance  of the emergency or even thereafter.  As  soon as  the  Proclamation  ceases to  operate,  the  legislative enactments passed and the executive actions taken during the course  of  the said emergency shall be inoperative  to  the extent  to  which they conflict with the  rights  guaranteed under  Art. 19 because as soon as the emergency  is  lifted, Art.  19  which  was  suspended  during  the  emergency   is automatically  revived and begins to operate.  Article  358, however,  makes it clear that things done or omitted  to  be done  during the emergency cannot be challenged  even  after the emergency is over In other words, the suspension of Art. 19 is complete during the period in question and legislative and  executive  action which contravenes Art. 19  cannot  be questioned even after the emergency is over. Article  359, on the other hand, does not purport  expressly to suspend any of the fundamental rights.  It authorises the President to issue an order declaring that the right to move any court for enforcement of such of the rights in Part  III 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.  What  the  Presidential  Order purports  to  do by virtue of the power  conferred  on  ’the President  by  Art.  359(1)  is to bar  the  remedy  of  the citizens  to  move  any court for  the  enforcement  of  the specified  rights.  The rights are not expressly  suspended, but  the citizen is deprived of his right to move any  court for their enforcement.  That is one important 813 distinction  between  the provisions of Art.  358  and  Art. 359(1). Before  proceeding  further,  we  may  at  this  stage,   in parenthesis,  observe  that  there has  been  some  argument before  us  on the question as to  whether  the  fundamental rights specified in the Presidential Order issued under Art. 359 are even theoretically alive during the period specified in  the  said  Order.   The  learned  Attorney-General   has

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 49  

contended that the suspension of the citizens’ right to move any  court for the enforcement of the said rights,  in  law, amounts to the suspension of the said rights themselves  for the said period.  We do not propose ,to decide this question in  the  present appeals.  We will assume in favour  of  the appellants  that the said rights -arc, in theory, alive  and it  is on that assumption that we ’will deal with the  other points raised in the present appeals. The  other distinction lies in the fact that the  suspension of Art. 19 for which Art. 358 provides continues so long  as the  Proclamation of Emergency is in operation, whereas  the suspension  of  the  right  to  move  any  court  which  the Presidential  Order under Art. 359(1) brings about can  last either  for the period of the Proclamation or for a  shorter period if so specified by the Order. It would be noticed that the Presidential Order cannot widen the  authority  of  the legislatures or  the  executive;  it merely  suspends  the rights to move any court to  obtain  a relief  on the ground that the rights conferred by Part  III have  been contravened if the said rights are  specified  in the  Order.  The inevitable consequence of this position  is that  as  soon  as the Order ceases  to  be  operative,  the infringement  of the rights made either by  the  legislative enactment  or by executive action can perhaps be  challenged by, a citizen in a court of law and the same may have to  be tried on the merits on the basis that the rights alleged  to have  been  infringed  were in  operation  even  during  the pendency   of   the   Presidential   Order.    If   at   the expiration .of the Presidential Order, Parliament passes any legislation  to  protect executive action taken  during  the pendency, of the Presidential Order and afford indemnity  to the executive in that behalf, the validity and the effect of such   legislative   action  may  have   to   be   carefully scrutinised. 814 Since the object of Art. 359(1) is to suspend the rights  of the  citizens  to  move any court, the  consequence  of  the Presidential  Order may be that any proceeding which may  be pending  at the date of the Order remains  suspended  during the  time that the Order is in operation and may be  revived when  the  said  Order ceases to  be  operative;  and  fresh proceedings cannot be taken by a citizen after the Order has been issued, because the Order takes away the right to  move any  court and during the operation of the Order,  the  said right cannot be exercised by instituting a fresh  proceeding contrary to the Order.  If a fresh proceeding failing within the  mischief  of  Art. 359(1) and  the  Presidential  Order issued  under  it  is instituted after the  Order  has  been issued,  it will have to be dismissed as being  incompetent. In  other  words,  Art. 359(1) and  the  Presidential  Order issued  under  it may constitute a sort of moratorium  or  a blanket  ban against the institution or continuance  of  any legal action subject to two important conditions.  The first condition  relates to the character of the legal action  and requires  that the said action must seek to obtain a  relief on  the  ground  that  the  claimant’s  fundamental   rights specified  in the Presidential Order have been  contravened, and the second condition relates to the period during  which this  ban  is to operate.  The ban operates either  for  the period of the Proclamation or for such shorter period as may be specified in the Order. There  is yet another distinction between the provisions  of Art.  358 and Art. 359(1).  The suspension of Art’.  19  for which, provision is made under Art. 358 applies to the whole of  the  country, and so, covers all legislatures  and  also

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 49  

States.   On  the other hand, the Order  issued  under  Art. 359(1)  may extend to the whole of India or may be  confined to  any  part of the territory of  India.   These,  -broadly stated,  are the points of distinction between Art. 358  and Art. 359(1), What  then  is the true scope and effect of,  Art.  359(1).? Mr.  Setalvad contends that the right to move any court  for the enforcement of such of the rights conferred by Part  III as  may  be mentioned in the Order should be  -construed  to mean  the  right to move the Supreme Court  which  has  been guaranteed by Art. 32(1).  He suggests that as one reads the relevant clause in Art. 359(1), one seems 815 to  hear  the  echo of the right which  has  been  constitu- tionally guaranteed by Art. 32(1).  His argument, therefore, is  that the only right of which a citizen can  be  deprived under  Art. 359(1) is the right to, move the Supreme  Court, and  so,  his  case is that even in  regard  to  fundamental rights  specified  in the Presidential Order, a  citizen  is entitled  to ask for reliefs from the High Court under  Art. 226  because the right to move the High Court  flowing  from Art. 226 does not fall within the mischief of Art. 359(1). This argument attempts to interpret the words "the right  to move  for  the  enforcement  of  the  specified  rights"  in isolation  and without; taking into account the other  words which indicate that the right to move which is specified  in the  said  Article is the right to move  "any  courts$.   In plain  language, the words "any court" cannot mean only  the Supreme Court- they would necessarily take in all courts  of competent   jurisdiction.    If   the   intention   of   the Constitution  makers  was to confine the operation  of  Art. 359(1) to the right to move only the Supreme Court,  nothing could  have been easier than to say so expressly instead  of using the wider words "the right to move any court.’) To  meet this difficulty,Mr.  Setalvad attempted  to  invoke the  assistance  of Art.. 32(3).  Art. 32(3)  provides  that without  prejudice to the: powers conferred on  the  Supreme Court by clauses (1) and’ (2), Parliament may by law empower any other court, to exercise within the local limits of  its jurisdiction  all  or any of the powers exercisable  by  the Supreme  Court under clause (2).  The argument is  that  the Constitution  -contemplates  that there may  be  some  other courts in the country on which the powers exercisable by the Supreme Court under Art. 32(2) may be conferred, and so, the words  "any  court" may have been intended  to  take  within their  purview the Supreme Court and such other  courts  oil whom  the  Supreme Courts powers under Art. 32(2)  may  have been conferred.  This argument is fallacious.  The scheme of Art. 32 clearly indicates that the right to move this  Court which  itself is a guaranteed fundamental right,, cannot  be claimed in respect of courts falling under Art. 32(3).  Art. 32(3) merely provides for the conferment of this Court’s 816 powers  under Art. 32(2) on the courts specified  in  clause (3).   The right guaranteed by Art. 32(1) cannot be  claimed in respect of the said other courts.  Therefore, oh a  plain construction  of  the  relevant clauses of Art.  32,  it  is impossible  to  accept the argument that courts  under  Art. 32(3)  must  be regarded as having the same  status  as  the Supreme  Court and as such the right to move them must  also be held to constitute a fundamental right of the citizen  in respect of such courts.  Besides, it would be irrational  to suggest that whereas the Constitution did not confer on  the citizens  a  guaranteed fundamental right to move  the  High Court  under  Art.  226, it thought  of  conferring  such  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 49  

guaranteed  fundamental right in regard to courts  on  which the  Supreme’  Court’s  powers under  Art.  32(2)  would  be conferred by Art. 32(3).  Therefore, the attempt to  suggest that  ’the use of the words "any Court" used in Art.  359(1) is justified because they take in the Supreme Court and some other  courts, fails and the conclusion  inevitably  follows that  the  words  "any  court" must  be  given  their  plain grammatical meaning and must be construed to mean any  court of  competent jurisdiction.  In other words the  words  "any court" include the Supreme Court and the High Courts  before which the specified rights can be enforced by the citizens. In  this connection, it was attempted to be argued that  the power  of  the  High  Court to issue  the  writs  or  orders specified  in  Art. 226(1) is a discretionary power  and  as such, no citizen can claim to have a right to move the  High Court  in that behalf, and’. so, it was suggested  that  the proceedings  contemplated  by Art. 226(1)  are  outside  the purview  of Art. 359(1).  In our opinion, this  argument  is not  well-founded.   It  is true that in  issuing  writs  or orders under Art. 226(1), the High Courts have discretion to decide  whether  a  writ or, %,order  should  be  issued  as claimed  by the petitioner; but the discretion conferred  on the  High Courts in that behalf has to be  judicially  exer- cised, and having regard to the scheme - of Art. 226(1),  it cannot be said that a citizen. has no right to move the High Court for invoking its jurisdiction under Art. 226(1);  Art. 226(1)  confers wide powers on the High Courts to issue  the specified writs, or other appropriate orders or  directions; having regard to the nature of the said powers, 817 and  the object intended to be achieved by their  conferment there can be little doubt that in dealing with  applications made  before  them the High Courts have  to  exercise  their discretion  in  a  judicial manner and  in  accordance  with principles which are well-settled in that behalf.  The  High Courts  cannot  capriciously or unreasonably refuse  to  en- tertain  the said applications and to deal with them on  the merits on the sole ground that the exercise of their  juris- diction  under Art. 226(1) is discretionary.  Therefore,  it is  idle to suggest that the proceedings taken  by  citizens under  Art. 226(1) are outside the purview of  Art.  359(1). We  must accordingly hold that the right to move  any  court under  Art. 359(1) refers to the right to move any court  of competent jurisdiction. The next question to consider is, what is the nature of  the proceedings  which  are  barred by  the  Presidential  Order issued  under  Art. 359(1) ? They are proceedings  taken  by citizens for the enforcement of such of the rights conferred by Part III as may be mentioned in the order.  If a  citizen moves  any court to obtain a relief on the ground  that  his fundamental   rights  specified  in  the  Order  have   been contravened, that proceeding is barred.  In determining  the question as to whether a particular proceeding falls  within the  mischief of the Presidential Order or not, what has  to be examined is not so much the form which the proceeding has taken,  or the words in which the relief is claimed, as  the substance of the matter and consider whether before granting the relief claimed by the citizen, it would be necessary for the  Court to enquire into the question whether any  of  his specified fundamental rights have been contravened.  If  any relief cannot be granted to the citizen without  determining the  question  of  the  alleged  infringement  of  the  said specified  ’fundamental rights, that is a  proceeding  which falls under Art. 359(1) and would, therefore, be hit by  the Presidential Order issued under the said Article.  The sweep

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 49  

,of  Art. 359(1) and the Presidential Order issued under  it is  thus wide enough to include all claims made by  citizens in any court of competent jurisdiction when it is shown that the  said  claims  cannot be  effectively  adjudicated  upon without examining the question as to whether the citizen  is in substance, seeking to enforce any of the 818 said specified fundamental rights. We have already seen that the  operation  of Art. 359(1) and  the  Presidential  Order issued  under it is limited to the period during  which  the proclamation  of emergency is in force, or for such  shorter period as may be specified in the Order.  That being so,  we feel  no difficulty in holding that proceedings taken  by  a citizen either under Art. 32(1) or under Art. 226(1) are hit by  Art. 359(1) and the Presidential Order issued under  it. In  this connection it would be legitimate to add  that  the contention  of  the appellants which seeks  to  confine  the operation  of  Art.  359(1) only to the right  to  move  the Supreme   Court,  would  make  the  said  provision   almost meaningless.   There  would be no point  in  preventing  the citizen from moving this Court, while leaving it open to him to move the High Courts for the same relief and then to come to this Court in appeal, if necessary. That  takes  us to the question as  to  whether  proceedings taken  by a citizen under s. 491(1)(b) are affected by  Art. 359(1) and the Presidential Order issued under it.   Section 491  (1) (b), inter alia, provides that any High Court  may, whenever  it thinks fit, direct that a person  illegally  or improperly detained in public custody be set at liberty.  It has  been strenuously urged before us that  the  proceedings for  obtaining  directions of the nature  of  habeas  corpus which  are  taken  under s. 491 (1)  (b)  are  outside  Art. 359(1),  and so, the Presidential Order cannot create a  bar against  a citizen asking the High Court to issue a writ  in the nature of habeas corpus under the said provision.  It is necessary to examine this argument very carefully. It  is well-known that after section 491 was enacted in  the Code of Criminal Procedure in the present form in 1923,  the right to obtain a direction in the nature of a habeas corpus became  a statutory right in India.  After 1923, it was  not open  to any party to ask for a writ of habeas corpus  as  a matter  of  common  law.   This  question  was   elaborately considered  by Rankin, C. J., in Girindra Nath  Banerjee  v. Birendra Nath Pal(1), where the learned C.J. considered  the history of the development of the law on this point and came to the conclusion that the relief of a writ in the nature of a habeas corpus could be claimed (1)  I.L.R. 54 Cal. 727. 819 after  1923 solely under Cr.  P. C. The same view was  taken by  a  full  Bench  of the Madras  High  Court  in  District Magistrate,  Trivandrum v. K. C. Mammen Mappillal(1),  where the  said  High Court held that it had no power to  issue  a writ  of habeas corpus as known to the English  Common  Law. Its  powers are confined in that respect to those  conferred by  s.  491 of the Code of Criminal  Procedure  which  gives authority  to  issue  directions of  the  nature  of  habeas corpus.  When this point was raised before the Privy Council in  Matthen v. District Magistrate of Trivandrum (2),  their Lordships observed that the reasoning of Rankin C.J. in  the case   of  Girindra  Nath  Banerjee(3)  was  so  clear   and convincing  that they were content to adopt it, as  also  to state  that  they were in entire agreement  with  the  views expressed by him.  The same view was expressed by the  Privy Council  in  King-Emperor  v.  Sibnath  Banerji(4).   Basing

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 49  

himself  on these decisions, Mr. Setalvad contends that  the statutory  right to obtain relief under s. 491 (1) (b) is  a right which is separate and distinct from the Constitutional right   guaranteed   by  the  relevant   Articles   of   the Constitution, and so, Art. 359(1) cannot be said to apply to the proceedings under s. 491 (1) (b). In  support  of the same contention, Mr. Setalvad  has  also pressed into service the provisions of Art. 372 by which the existing laws are continued and he has invited our attention to  the  provisions  of Art. 225 and 375 to  show  that  the jurisdiction  conferred on the High Courts by s. 491 Cr.  P. C.  continues  unless  it  is  expressly  taken  away  by  a competent piece of legislation. In  this  connection, reliance has also been placed  on  the fact  that in the past whenever the operation of s. 491  was intended  to be suspended, the legislature made  a  specific provision  in that behalf and as an illustration,  reference is made to s. 10 of the Restriction and Detention Ordinance, 1944  (No, III of 1944).  Section 10 specifically refers  to s.  491  of the Code and provides that no Court  shall  have power to make any order under the said section in respect of any order made under or having, effect under the  Ordinance, or  in respect of any person the subject of such  an  order. It is urged that the Presidential Order is con- (1)  I.L.R. 1939 Mad. 708(2) 66 I.A. 222. (3)  I.L.R. :54 Cal, 727.(4) 72 I.A. 241. 820 fined  only to proceedings taken for enforcement of  consti- tutional rights and if it was intended that the  proceedings under s. 491(1)(b) should also be prohibited, it was  essen- tial  that  the said provision should, in terms,  have  been suspended by a competent piece of legislation. Mr. Setalvad has also emphasised the fact that the  approach in dealing with a proceeding under s. 491(1)(b) is different from  the  approach which the courts adopt in  dealing  with proceedings  under  Art. 226 or Art. 32.   In  invoking  the Jurisdiction  of the High Courts under Art. 226(1), or  that of  the  Supreme Court under Art. 32(1), the  Courts  always enquire  whether  the party concerned is  aggrieved  by  the order against which complaint is made.  Under s.  491(1)(b), however, the court can take action suo motu and that  brings out  the difference in the character of the  two  respective categories  of  proceedings.  That, broadly stated,  is  the manner in which Mr. Setalvad has raised his contention  that proceedings under s. 491 (1) (b) are outside the purview  of the  Presidential Order and do not fall within the  mischief of Art. 359(1). There  is no doubt that the right to ask for a writ  in  the nature  of habeas corpus which could once have been  treated as a matter of Common Law has become a statutory right after 1923,  and  as  we  have  already  seen  after  s.  491  was introduced in the Cr.  P. C., it was not open to any citizen in  India  to-claim  the writ of habeas  corpus  on  grounds recognised  by  Common Law apart from the provisions  of  s. 491(1)(b)  itself.  It has, however, been suggested  by  the learned  Attorney-General that just as the common law  right to  obtain a writ of habeas corpus became a statutory  right in 1923, a part of the said statutory .tight has now  become a   part  of  the  fundamental  rights  guaranteed  by   the Constitution,  and  so,  after the  Constitution  came  into force, whenever a detenu claims to be released from  illegal or  improper’  detention, his claim can, in some  cases,  be sustained  on the ground that illegal or improper  detention affects his fundamental rights guaranteed by Arts. 19, or 21 or  23 as the case may be.  If that be so, it would  not  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 49  

easy  to  accede to the argument that the said part  of  the statutory  right  recognised  by s.  491(1)(b)  retains  its distinctive and independent character even after 821 the  Constitution came into force to such an extent that  it cannot  be  said  to form part  of  the  fundamental  rights guaranteed by the Constitution. It is true that there are two remedies open to a party whose right  of personal freedom has been infringed; he  may  move the Court for a writ under Art. 226(1) or Art. 32(1) of  the Constitution, or he may take a proceeding under  s.491(1)(b) of the Code.  But it seems to us that despite the fact  that either  of the two remedies can be adopted by a citizen  who has  been detained improperly or illegally, the right  which he  claims is the same if the remedy sought for is based  on the  ground that there has been a breach of his  fundamental rights; and that is a right guaranteed to the citizen by the Constitution,  and  so, whatever is the form of  the  remedy adopted  by  the detenu, the right which he  is  seeking  to enforce is the same. It  is no doubt urged that under s. 491 (1) (b)  a  stranger can  apply  for  the  release  of  a  detenu  improperly  or illegally  detained, or the Court itself can act  suo  motu. This argument is based on the provision that the High  Court may,   whenever  it  thinks  fit,  issue   the   appropriate direction.  The learned Attorney-General contended that  the clause  "whenever  it  thinks  fit"  postulates  that   some application or petition has been filed before the Court  and on  perusing the application or petition it appears  to  the Court  fit to take the appropriate action.  In other  words, his  argument is that the Court cannot take suo motu  action under  s. 491(1)(b).  He has also urged that a third  person may apply, but he must show that he has been duly authorised to  act on behalf of the detenu or he must at least  purport to  act  on  his behalf.  We do not think  it  necessary  to express any opinion on this part of the controversy  between the parties.  We are prepared to assume that the court  can, in a proper case, exercise its power under s. 491(1)(b)  suo motu, but that, in our opinion, does not affect the decision of the question with which we are concerned.  If Art. 359(1) and  the  Presidential  Order issued  under  it  govern  the proceedings  taken under s. 491 (1) (b), the fact  that  the court  can act suo motu will not make any difference to  the legal  position  for the simple reason that if  a  party  is precluded from claiming his release on the ground set out by him in his petition, the 822 Court  cannot,  purporting to act suo motu, pass  any  order inconsistent  with  the provisions of Art.  359(1)  and  the Presidential Order issued under it.  Similarly, if the  pro- ceedings  under s. 491(1)(b) are hit by Art. 359(1) and  the Presidential Order, the arguments based on the provisions of Art. 372 as well as Arts. 225 and 375 have no validity.  The obvious  and the necessary implication of the suspension  of the right of the citizen to move any Court for enforcing his specified   fundamental   right.-,   is   to   suspend   the Jurisdiction of the Court pro tanto in that behalf. Let  us take a concrete case which will clearly  bring.  out the  character of the proceedings taken by the  detenues  in the present cases.  An application is made on behalf of  the detenu  that  he is illegally or improperly  detained.   The State  in  its return pleads that the detention  is  neither illegal nor improper because it has been effected under rule 30(1) (b), and in support of this return reliance is  placed on  the  provisions  of  s.  3(2)(15)(i)  of  the  Act.   On

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 49  

receiving  this return, it is urged on behalf of the  detenu that  the  provisions  of s. 3(2)(15)(i)  as  well  as  Rule 30(1)(b) are invalid because they contravene the fundamental rights guaranteed to the citizens under Arts. 14, 21 and  22 and so, the sole issue which falls to be determined  between the  parties  relates  to  the  validity  of  the   relevant statutory provisions and Rules.  If the impugned  provisions in  the Act and the Rules are ultra Vires  the detention  is illegal  and improper, but if, on the other hand,  the  said provisions are valid, the detention is legal and proper.  In deciding  this point, the Court will naturally have to  take into account the provisions of s. 45(1) of the Act.  Section 45(1)  provides that no order made in exercise of any  power conferred  by or under this Act shall be called in  question in  any Court; and the reply of the detenu inevitably  would be that notwithstanding this provision, the validity of  the impugned  legislation must be tested.  This  clearly  brings out  the true nature and character of the dispute  which  is raised  before  the Court by the detenu in  asking  for  the issue of a writ of habeas corpus in the present proceedings. The  question which thus arises for our decision is, can  it be said that the proceedings taken under s. 491 (1) (b) are 823 of  such  a distinctly separate character that  they  cannot fall under Art. 359(1) ? Under s. 491 as it stood before the date  of  the Constitution, it would have been open  to  the detenu  to contend that the law under which he was  detained was invalid, because it was passed by a legislature  without legislative competence.  The validity of the law might  also have  been  challenged  on the  ground  that  the  operative provision   in   the   law  suffered  from   the   vice   of excessive.delegation. The detenu might also have urged  that in detaining him the mandatory provisions under the Act  had not  been  complied with. But before  the  Constitution  was adopted, it would not have been open to the detenu to  claim that the impugned law was invalid because it contravened his fundamental rights guranteed by the relevant Articles of the Constitution.   The  right to challenge the  validity  of  a statute  on the ground that it contravenes  the  fundamental rights  of the citizens has accrued to the citizens of  this country only after and as a result of the provisions of  the Constitution itself, and SO, there can be no doubt that when in  the present proceedings the detenues seek  to  challenge the  validity  of the impugned statutory provision  and  the Rule,  they are invoking their fundamental rights under  the Constitution.   If s. 491. is treated as standing by  itself and apart from the provisions of the Constitution, the  plea raised  by  the  detenues  cannot  be  entertained  in   the proceedings  taken under that section ; it is only when  the proceedings taken under the said section are dealt with  not only  in  the light of s. 491 and of the rights  which  were available  to  the citizens before 1950, but when  they  are considered  also  in  the light of  the  fundamental  rights guaranteed by the Constitution that the relevant plea can be raised.  In other words, it is clear that the content of the detenu’s  right to challenge the legality of  his  detention which  was available to him under s. 491(1)(b) prior to  the Constitution,  has been enlarged by the  fundamental  rights guaranteed  to  the citizens by the  Constitution,  and  so, whenever a detenu relies upon his fundamental rights even in support of his petition made under s. 491(1)(b) he is really enforcing the said rights and in that sense, the proceedings inevitably partake of the character of proceedings taken  by the  detenu  for  enforcing these rights; that  is  why  the argument that Art. 359(1)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 49  

824 and  the Presidential Order issued under it do not apply  to the proceedings under s. 491(1)(b) cannot be sustained.  The prohibition   contained   in  the  said  Article   and   the Presidential  Order will apply as much to proceedings  under s.   491(1)(b) as to those under Art. 226(1) & Art. 32(1). In this connection, it is hardly necessary to emphasise that in deciding the present question, we must take into  account the  substance  of  the  matter  and  not  attach  undue  or exaggerated  importance to the form of the proceedings.   If the  form which the proceedings take is held to be  decisive in  the  matter, it would lead to this  irrational  position that  an application containing the requisite  averments  in support  of a plea for the release of the detenu,  would  be thrown  out by the High Court if in form it purports  to  be made under Art. 226, whereas it would be entertained and may indeed succeed if it purports to be made under s. 491(1)(b). Indeed,  this  argument  seems  to  suggest  that  when  the Constitution-makers  drafted  Art. 359, they  intended  that whenever  an  emergency arises and a Presidential  Order  is issued under Art. 359(1) in regard to the fundamental rights guaranteed by Arts. 21 and 22, it would be necessary to pass another  piece of legislation providing for  an  appropriate change or repeal of a part of the provision of s. 491(1)(b), Cr.  P. C.; and since the legislature has through  oversight omitted   to  pass  the  necessary  Act  in   that   behalf, proceedings  under  s.  491(1)(b)  must  be  allowed  to  be continued  free  from the bar created  by  the  Presidential Order.   In our opinion, this position is wholly  untenable. Whether or not the proceedings taken under s. 491(1)(b) fall within  the purview of the Presidential Order,  must  depend upon  the construction of Art. 359(1) and the Order, and  in dealing  with this point, we must look at the  substance  of the  matter and not its form.  Before giving relief  to  the detenu who alleges that he has been illegally and  impropely detained,  is  the  High  Court  required  to  consider  the validity of the operative provisions of the impugned Act  on the  ground  that they infringe  the  specified  fundamental rights?   If  yes, the bar created by Art.  359(1)  and  the Presidential  Order must inevitably step in even though  the proceedings  in form may have been taken under s.  49t(1)(b) of  the Code.  In our opinion, therefore, once it  is  shown that the proceedings under 825 s.491(1)(b)  cannot make a substantial progress  unless  the validity  of the impugned law is examined on the  ground  of the  contravention of the specified fundamental  rights,  it must  follow that the bar created by the Presidential  Order operates  against  -them  as much  as  it  operates  against proceedings  taken under Art. 226(1) or Art.  32(1).   Thus, the  true legal position, in substance, is that  the  clause "the  right to move any court" used in Art. 359(1)  and  the Presidential Order takes in all legal actions intended to be filed, or filed, in which the specified rights are sought to be  enforced,  and  it covers  all  relevant  categories  of Jurisdictions  of  competent  courts under  which  the  said actions  would otherwise normally have been entertained  and tried. At  this  stage,  we may conveniently refer  to  the  recent decision of this Court in Sree Mohan Chowdhury v. The  Chief Commissioner,  Union Territory of Tripura(1),  wherein  this Court  rejected the detenu’s petition on the ground that  it was  barred  by  the Presidential Order and  it  refused  to entertain  the argument that the Ordinance and the  Act  and the  Rules framed thereunder were void for the  reason  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 49  

they  contravened  Arts. 14, 21 & 22, with  the  observation that  the  challenge made by the petitioner in  that  behalf really  amounted  to  "arguing  in  the  circle".   If   the Presidential Order precludes a citizen from moving the Court for the enforcement of the specified fundamental rights,  it would  not  be open to the citizen to urge that the  Act  is void  for  the  reason  that it  offends  against  the  said fundamental  rights.  It is in order to prevent the  citizen from  making  such a claim that the Presidential  Order  has been issued, and so, during the period of its operation, the challenge to the validity of the Act cannot be  entertained. Incidentally, it may be observed that a petition for a  writ of habeas corpus made by Mohan Chowdhury which was  rejected by  this  Court on the ground that it was barred  under  the Presidential  Order  would,  on  the  view  for  which   the appellants  contend, be competent if it is presented  before the  appropriate High Court under s. 491(1)(b) of the  Code; and that incidentally illustrates how exaggerated importance to  the  form  of  the  petition  would  lead  to  extremely anomalous  and  irrational  consequences.   Therefore,   our conclusion is that the proceedings (1) [1964] 3 S.C.R.412. 53-2 SC India/64 826 taken on behalf of the appellants before the respective High Courts  challenging their detention on the ground  that  the impugned Act and the Rules arc void because they  contravene Arts. 14, 21 and 22, arc incompetent for the reason that the fundamental   rights   which  are  alleged  to   have   been contravened are specified in the Presidential Order and  all citizens  ire  precluded  from  moving  any  Court  for  the enforcement of the said specified rights. The  next  question  to consider is  the  validity  of  tile Presidential  Order  itself  which was  issued  on  the  3rd November, 1962.  This is how the Order reads: "G.S.R. 1464.-In exercise of the powers conferred by  clause               (1)  of article 359 of the  Constitution,  the               President  hereby declares that the  right  of               -any   person  to  move  any  court  for   the               enforcement of the rights conferred by article               21  and article 22 of the  Constitution  shall               remain  suspends for the period  during  which               the  Proclamation  of Emergency  issued  under               clause (1) of article 352 thereof on ,lie 26th               October, 1962 is in force, if such person  has               been  delivered of any such rights  under  the               Defence of India Ordanance, 1962 (4 of  1.962)               or any rule or order made thereunder." We  have  already stated that this  Order  was  subsequently modified on the 11th November, 1962, by the addition of Art. 14.   The  first argument which has been urged  against  the validity  of this Order is that it is inconsistent with  the provisions  of  Art. 359(1).  It is argued  that  the  Order which  the  President  is authorised  to  issue  under  this Article  must be an Order of general application;  in  fact, the  Order purports to be confined to persons who have  been deprived of any of the specified rights under the Defence of India Ordinance, 1962, or any Rule or Order made thereunder. In  other words, there is no doubt that this Order does  not apply to persons who have been detained under the provisions of  the earlier Preventive Detention Act No. 4 of 1950,  and so, in limiting the application of the Order to persons  who have  been detained under the Ordinance, the  President  has acted  outside the powers conferred on him by  Art.  359(1). In  our  opinion, this argument cannot  be  sustained.   The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 49  

power  conferred on the President is wide enough  to  enable him to make an Order applicable to all parts of the  country and to all 827 citizens  and in respect of any of the rights  conferred  by Part  111.  This wide power obviously includes the power  to issue a limited order.  What the Order purports to do is  to provide that all persons wherever they reside who have  been detained  under the Ordinance or the Act, will be  precluded from  moving  any court for the enforcement  of  the  rights specified  in  the Order.  It is not easy to  see  how  this Order can be said to contravene or be otherwise inconsistent with the powers conferred on the President by Art. 359(1). It is then argued that the said Order is invalid because  it seeks  to  give effect to the Ordinance which is  void.   It will  be recalled that Ordinance No. 4 of 1962  was  promul- gated  on  the  26th October, 1962, whereas  the  Order  was issued  under  Art. 359(1) on the 3rd November,  1962.   The argument is that during the period between the 26th  October and  the  3rd November the validity of  the  said  Ordinance could have been challenged on the ground that it contravened Arts. 14, 21 and 22, and so, the said Ordinance can be  held to  have  been  a still-born piece of  legislation  and  yet detentions  effected under such a void law are sought to  be protected  by  the Presidential Order by depriving  the  the detenues  of their right to move any court to challenge  the validity of the orders of detention passed against them.  In our opinion, this argument is wholly misconceived.  We  have already  stated that for the purpose ’of these  appeals,  we are  prepared to assume that despite the issue of the  Order under  Art.  359(1), the fundamental  rights  guaranteed  by Arts. 14, 21 and 22 are not suspended; what is suspended  is the  enforcement  of the said rights during  the  prescribed period,  and  so, what is said about the invalidity  of  the Ordinance  during  the period between 26th October  and  3rd November is true even after the Order was issued on the  3rd November.  If the detenues are justified in contending  that the  Ordinance and the Act which took its place  contravened the  fundamental rights guaranteed by Arts. 14, 21  and  22, the  said Ordinance and the Act would be and would  continue to  be invalid; but the effect of the Presidential Order  is that their invalidity cannot be tested during the prescribed period.  Therefore, the argument that since the Ordinance or the Act is invalid, the Presidential Order cannot preclude a citizen from test- 828 ing its validity, must be rejected. The same argument is put in another form.  It is urged  that we  have  merely  to examine the Ordinance  and  Act  to  be satisfied  that  Arts. 14, 21 and 22 (4), (5) and  (7)  have been   contravened  and  it  is  suggested  that  if   these infirmities  in  the Ordinance and the Act are  glaring,  it would  not be open to the President to issue an  Order  pre- venting  the detenues from challenging the validity  of  the said  statutory provisions.  That, in substance, is what  is described  by  this Court in Mohan  Choudhury’s  case(1)  as arguing  in the circle".  Therefore, we are  satisfied  that the  challenge to the validity of the Presidential Order  is not well-founded. It  still remains to consider what are the pleas  which  are now open to the citizens to take in challenging the legality or  the  propriety  of  their  detentions  either  under  s. 491(1)(b)  of the Code, or Art. 226(1) of the  Constitution. We have already seen that the right to move any court  which is  suspended  by  Art. 359(1) and  the  Presidential  Order

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 49  

issued under it is the right for the enforcement of such  of the rights conferred by Part III as may be mentioned in  the Order.   If  in challenging the validity  of  his  detention order,  the detenu is pleading any right outside the  rights specified in the Order, his right to move any court in  that behalf  is not suspended, because it is outside Art.  359(1) and consequently outside the Presidential Order itself.  Let us take a case where a detenu has been detained in violation of the mandatory provisions of the Act.  In such a case,  it may  be open to the detenu to contend that his detention  is illegal for the reason that the mandatory provisions of  the Act  have  been contravened.  Such a plea  is  outside  Art. 359(1)  and the right of the detenu to move for his  release on  such  a ground cannot be affected  by  the  Presidential Order. Take also a case where the detenu moves the Court for a writ of  habeas corpus on the ground that his detention has  been ordered malafide.  It is hardly necessary to emphasise  that the exercise of a power malafide is wholly outside the scope of   the  Act  conferring  the  power  and  can  always   be successfully challenged.  It is true that a mere  allegation that the detention is malafide would not be (1) [1964] 3. S.C.R. 442. 829 enough; the detenu will have to prove the malafides.  But if the  malafides are alleged, the detenu cannot  be  precluded from  substantiating  his  plea on the  ground  of  the  bar created by Art. 359(1) and the Presidential Order.  That  is another  kind of plea which is outside the purview  of  Art. 359(1). Section  491(1)  deals with the power of the High  Court  to issue directions in the nature of the habeas corpus, and  it covers  six  categories of cases in which such  a  direction ,can be issued.  It is only in regard to that class of cases falling under s. 491(1)(b) where the legality of the  deten- tion  is challenged on grounds which fall under Art.  359(1) and  Presidential Order that the bar would operate.  In  all other  cases falling under s. 491(1) the bar would be  inap- plicable and proceedings taken on behalf of the detenu  will have  to be tried in accordance with law.  We ought  to  add that these categories of pleas have been mentioned by us  by way  of  illustration, and so, they should not  be  read  as exhausting  all  the  pleas which do  not  fall  within  the purview of the Presidential Order. There  is  yet another ground on which the validity  of  the detention  may be open to challenge.  If a  detenu  contends that  the operative provision of the law under which  he  is detained  suffers from the vice of excessive delegation  and is,  therefore, invalid, the plea thus raised by the  detenu cannot  at the threshold be said to be barred by the  Presi- dential  Order.   In  terms,  it is  not  a  plea  which  is relatable  to the fundamental rights specified in  the  said Order.  It is a plea which is independent of the said rights and its validity must be examined.  Mr. Chatterjee has urged before us that s. 3(2) (15) (i) as well as s. 40 of the  Act are  invalid,  because  they  confer  oil  the  rule  making authoritypower  which  is  often  described  as   excessive delegation.It  is,therefore, necessary to consider  this point. The Actwhich  took  the place of the  Ordinance  was passed,  because  it was thought necessary  to  provide  for special  measures to ensure the public safety and  interest, the defence of India and civil defence and for the trial  of certain  offences  and  for  matters  connected   therewith. Section 3(2)(15)(i) whose validity is challenged purports to confer  on  the  Central Government  power  to  make  Rules.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 49  

Section 3(1) reads thus : 830 "The Central Government may, by notification in the Official Gazette,  make  such  rules as appear  to  it  necessary  or expedient  for  securing  the defence  of  India  and  civil defence, the public safety, the maintenance of public  order or  the  efficient  conduct of military operations,  or  for               maintaining supplies and services essential to               the life of the community." Section  3(2) provides that without prejudice to  the  gene- rality  of the powers conferred by sub-s. (1) the rules  may provide  for, and may empower any authority to  make  orders providing  for,  all or any of the following  matters;  then follow  clauses  (1) to (57), including  several  subclauses which  provide  for the matters that may be covered  by  the Rules.  Amongst them is cl. (15)(i) which reads as under:- "Notwithstanding  anything  in any other law  for  the  time being  in  force,-the rules to be made may provide  for  the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain (the authority  empowered to detain not being lower in rank  than that   of  a  District  Magistrate)  suspects,  on   grounds appearing  to that authority to be reasonable, of  being  of hostile  origin or of having acted, acting, being  about  to act  or being likely to act in a manncr prejudicial  to  the defence  of  India and civil defence, the  security  of  the State,  the  public safety or interest, the  maintenance  of public  order,  India’s relations with foreign  States,  the maintenance  of peaceful conditions in any part or  area  of India  or the efficient conduct of military  operations,  or with  respect to whom that authority is satisfied  that  his apprehension and detention are necessary for the purpose  of preventing him from acting in any such prejudicial manner." The  argument  is that in conferring power  on  the  Central Government to make rules, the legislature has abdicated  its essentially  legislative function in favour of  the  Central Government.   In  our opinion, this argument is  wholly  un- tenable.  Right up from the time when this Court dealt  with Special  References in 1951, In re The Delhi Laws Act,  1912 etc.(1) the question about the limits within which (1)  [1951] S.C.R. 747. 831 the legislature can legitimately confer powers on its  dele- gate has been examined on several occasions and it has  been consistently  held that what the legislature  is  prohibited from doing is to delegate its essentially legislative  func- tion and power.  If it appears from the relevant  provisions of  the  impugned  statute  that  powers  which  have   been delegated include powers which can legitimately be  regarded as  essentially legislative powers, then the legislation  is bad and it introduces a serious infirmity in the Act itself. On  the  other  hand,  if  the  legislature  lays  down  its legislative policy in clear and unambiguous terms and leaves it to the delegate to execute that policy by means of making appropriate    rules,   then   such   delegation   is    not impermissible.  In Harishanker Bagla v. The State of  Madhya Pradesh(1) where the validity of section 3 of the  Essential Supplies (Temporary Powers) Act, 1946, was challenged,  this Court in upholding the validity of the impugned statute held that  the preamble and the body of the relevant sections  of the  said Act sufficiently formulate the legislative  policy and observed that the ambit and the character of the- Act is such that the details of that policy can only be worked  out by  delegating that power to a subordinate authority  within the  framework  of  that policy.  The  same  view  has  been

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 49  

expressed  in  Bhatnagars  and Co., Ltd., v.  The  Union  of India(-).   In the present cases, one has merely to read  s. 3(1)  and the detailed provisions contained in  the  several clauses  of s. 3(2) to be satisfied that the attack  against the validity of the said section on the ground of  excessive delegation  is  patently  unsustainable.  Not  only  is  the legislative policy broadly indicated in the preamble to  the Act,  but  the relevant provisions of the  impugned  section itself give such detailed and specific guidance to the  rule making  authority that it would be idle to contend that  the Act  has delegated essentially legislative function  to  the rule  making  authority.   In our  opinion,  therefore,  the contention  that s. 3(2)(15)(i) of the Act suffers from  the vice of excessive delegation must be rejected.  What we have said  about this section applies with equal force to s.  40. If  the impugned sections of the Act are valid,  it  follows that  Rule  30(1)(b) which is challenged by  the  appellants must be (1) [1955] 1 S.C.R. 380. (2) [1957] S.C.R. 701. 832 held  to be valid since it is consistent with the  operative provisions  of  the Act and in making it, the  Central  Gov- ernment  has  acted within its  delegated  authority.   This conclusion  is, of course, confined to the challenge of  the appellants based on the ground that the impugned  provisions and the Rule suffer from the vice of excessive delegation. If  we  had  held that the impugned  provision  in  the  Act suffered  from  the vice of excessive delegation,  it  would have  become necessary to consider what the effect  of  that conclusion would have been on the merits of the  controversy between  the parties in the present proceedings.  If we  had reached  the  conclusion  that the  impugned  sections  were invalid  because  they conferred power  on  the  rule-making authority   which  suffers  from  the  vice   of   excessive delegation,  the  question  would  have  arisen  whether  in challenging  the validity of the Order of  detention  passed against  him the detenu is enforcing his  fundamental  right under  Art. 21 of the Constitution.  Art. 21 is one  of  the articles  specified in the Presidential Order and if at  any stage  of the proceedings, the detenu seeks to  enforce  his right under the said Article, that would be barred.  It  may be urged that if the detenues had been able to show that the impugned  provisions  of the Act were invalid  because  they suffered  from  the infirmity of excessive  delegation,  the next step which they would have been entitled to take was to urge  that their detention under such an Act is  void  under Art. 21, because the law referred to in that Article must be a valid law; and that would raise the question as to whether this  latter plea falls within the ambit of Art. 359(1)  and the  Presidential Order issued under it.  We do not  propose to  express any opinion on this question in  these  appeals. Since  we  have held that the Act does not suffer  from  the vice  of excessive delegation as alleged, it is  unnecessary to  pursue  the enquiry as to whether if the  challenge  had been  upheld,  the  detenu would have  been  precluded  from urging  the said invalidity in support of his plea that  his detention was illegal. We  must now turn to some other arguments which  were  urged before  us  at  the  hearing of  these  appeals.   Mr.  Sule contends that part of the Act containing the im- 833 pugned sections was a colourable piece of legislation.   His argument  was that since the Preventive Detention Act No.  4 of  1950  was  already on the statute book,  it  was  hardly

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 49  

necessary  for the Legislature to have passed  the  impugned Act,  and  he  urges  that since  the  sole  object  of  the Legislature  in passing the impugned Act was to deprive  the citizens of their fundamental rights under Arts. 21 and  22, it should be deemed to be a colourable piece of legislation. The  legislative competence of the Parliament to  pass  this Act  is not disputed.  Entry No. 9 in List I in the  Seventh Schedule confers on the Parliament jurisdiction to make laws in regard to the preventive detention for reasons  connected with  defence, foreign affairs, or the security of India  as well  as in regard to persons subjected to  such  detention. If  the Legislature thought that having regard to the  grave threat  to  the  security  of India  posed  by  the  Chinese aggression,  it  was  necessary to  pass  the  impugned  Act notwithstanding  the fact that another Act had already  been passed  in that behalf, it would be difficult to  hold  that the  Legislature had acted malafide and that the  Act  must, therefore,  be  struck  down as  a  colourable  exercise  of legislative power.  It is hardly necessary to emphasise that a plea that an Act passed by a legislature competent to pass it  is a colourable piece of legislation, cannot succeed  on such  flimsy grounds.  Whether or not it was wise that  this part  of the Act should have been passed, is a matter  which is  wholly irrelevant in dealing with the plea that the  Act is a colourable piece of legislation. In  this connection, we may refer to another aspect  of  the same  argument  which has been pressed  before  us.   Before doing so, however, let us briefly indicate the effect of the relevant  Articles.  Article 14 guarantees  equality  before law.  Article 21 provides, inter alia, that no person  shall be  deprived  of his personal liberty, except  according  to procedure established by law, and Art. 22(4), (5) (6) &  (7) lay down Constitutional safeguards for the protection of the citizen  whose personal liberty may be affected by an  order of  detention  passed against him.  Article  22(4)  requires that an Advisory Board should be constituted and that  cases of detenues should be referred to the Advisory Board for its opinion as provided therein.  Article 22(5) 834 imposes  an obligation on the detaining authority to  commu- nicate to the detenu grounds on which the order of detention has  been passed against him with a view to afford  him  the earliest opportunity of making a representation against  the order.  Article 22(6) provides that in giving notice to  the detenu  under Art. 22(5), facts need not be disclosed  which the  detaining  authority  considers to  be  against  public interest  to  disclose, and Art.  22(7)  prescribes  certain conditions  which have to be satisfied by any law which  the Parliament may pass empowering - the detention of  citizens. It  is  thus  clear  that  the  Constitution  empowers   the Parliament  to  make a law providing for  the  detention  of citizens, but this power has to be exercised subject to  the mandatory conditions specified in Art. 22(4), (5) & (7).  It is  common ground that the Preventive Detention Act of  1950 complies with these requirements inasmuch as it has  enacted sections  7  to 13 in that behalf.  It is  also  clear  that these  Constitutional safeguards have not been provided  for by the impugned Act. The  argument  is that even if the Parliament  thought  that during   the  period  of  emergency,   citizens   reasonably suspected to be engaged in prejudicial activities should  be detained  without  affording them the benefit  of  the  Con- stitutional safeguards guaranteed by Art. 22(4), (5) &  (7), the Parliament need not have enacted the Act and might  well have left the executive to take action under the  Preventive

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 49  

Detention  Act of 1950, and since Parliament has  chosen  to pass  the  Act  under  challenge  and  has  disregarded  the Constitutional  provisions  of  Articles  14  and  22,   the exercise  of  legislative power by Parliament must,  in  the context, be held to be a colourable exercise of  legislative power.  This argument seems to assume that if the Parliament had  expected  the executive to detain  citizens  under  the Preventive  Detention  Act of 1950 without giving  them  the benefit of the Constitutional safeguards prescribed by  Art. 22,  their cases could have been covered if  a  Presidential Order  had been issued under Art. 359(1) in respect of  such detentions. The question is: is this assumption well-founded?   Assuming that  the  Presidential Order had  suspended  the  citizens’ right  to  move any court for  enforcing  their  fundamental rights under Arts. 14, 21 and 22 and had made 835 the  said  Order applicable to persons  detained  under  the Preventive  Detention  Act of 1950, could  that  Order  have effectively  prevented  the detenues  from  contending  that their  detention was illegal and void?  In such a  case,  if the  detenu was detained under the Preventive Detention  Act of  1950 and he challenged the validity of his detention  on the ground that the relevant provisions of the said Act  had not  been complied with, would his challenge be  covered  by Art. 359(1) and the Presidential Order issued under it?   In other  words,  can  it  be said  that  in  making  the  said challenge, he was enforcing his fundamental rights specified in  the  Presidential  Order?  If it is  held  that  he  was challenging  the  validity  of  his  detention  because  the mandatory provisions of the Act had not been complied  with, his   challenge   may  be  outside  Art.  359(1)   and   the Presidential Order.  If, on the other hand, it is held that, in  substance,  the challenge is to  enforce  his  aforesaid fundamental  rights,  though  he  makes  the  challenge   by reference  to the relevant statutory provisions of  the  Act themselves that would have brought Ills challenge within the prohibition of the Presidential Order.  Normally, as we have already  held,  a  challenge against  the  validity  of  the detention on the ground that the statutory provisions of the Act  under  which  the detention is ordered  have  not  been complied  with,  would  fall outside  Art.  359(1)  and  the Presidential Order, but the complication in the hypothetical case under discussion arises because unlike other provisions of the Act, the mandatory provisions in question essentially represent  the fundamental rights guaranteed by Art. 22  and it  is open to argument that the challenge in question  sub- stantially seeks to enforce the said fundamental rights.  In the  context of the alternative argument with which  we  arc dealing  at this stage, it is unnecessary for us  to  decide whether the challengein  question would  have  attracted the provisions ofArt. 359(1) and the Order or not. We are referringto this matter only for  the  purpose  of  showing thatthe  Parliament  may have thought  that  the  executive would not be able to detain citizens reasonably suspected of prejudicial activities by taking recourse to the  Preventive Detention  Act of 1950, and that may be the genesis  of  the impugned Act.  If that 836 be  so,  it  would not be permissible  to  suggest  that  in passing the Act, Parliament was acting malafide. It  is  quite  true  that if the  Act  has  contravened  the citizens’ fundamental rights under Arts. 14 and 22, it would be  void  and  the detentions effected  under  the  relevant provisions of the said Act would be equally inoperative; but

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 49  

it  must be remembered that it is precisely in this  set  of circumstances  that Art. 359(1) and the  Presidential  Order issued  under  it  step in and  preclude  the  citizen  from enforcing  his  fundamental rights in any court.   The  said Article  as well as the Presidential Order issued  under  it indicate  that  there may be cases in  which  the  specified fundamental  rights  of citizens have  been  contravened  by executive  action and the impugned executive action  may  be invalid  on  that account.  That is precisely why  the  said Article and the Presidential Order impose a ban against  the investigation  of  the merits of the  challenge  during  the period prescribed by the Order.  Therefore, the  alternative argument  urged  in support of the plea  that  the  impugned provisions  of  the  Act amount to  a  colourable  piece  of legislation fails. Mr.  Parulekar  who  argued  his own  case  before  us  with remarkable  ability,  contended  that  a  detenu  cannot  be prevented from disputing the validity of the Ordinance,  Act and the Rules under the Presidential Order if he did not ask for  any  consequential relief.  His argument was  that  the prayer  made in his petition under s. 491(1)(b) consists  of two parts; the first prayer is to declare that the  impugned Act and the Order are invalid, and the second prayer is that his  detention should be held to be illegal and his  release should  accordingly be ordered.  The first prayer, says  Mr. Parulekar,  cannot  fall within the mischief  of  the  Order because  he is not enforcing any of his rights when he  asks merely  for  a declaration that the law is invalid,  and  he suggested that even if we take the view that he is precluded from challenging the validity of his detention by virtue  of the said Order, we should not preclude him from  challenging the  validity  of  the law merely with a view  to  obtain  a declaration  in that behalf.  In our opinion, this  argument cannot  be  accepted.  What s. 359(1) purports to do  is  to empower the President to make an Order by which the right of the detenue to move the Court 437 to  challenge  the validity of his detention on  the  ground that  any of his fundamental rights specified in  the  Order have  been  contravened, is suspended, and so, it  would  be unreasonable  to suggest that what the detenu cannot  do  in order  to  secure his release, he should be  allowed  to  do merely for the purpose of obtaining an academic declaration. A proceeding taken under s. 491(1)(b) like a petition  filed under  Art.  226(1)  or Art. 32(1)  is  intended  to  obtain relief, and the relief in such cases means the order for the release  of  the detenu.  If the detenu is  prohibited  from asking  for  an  order of release on  the  ground  that  the challenge  to the validity of his order of detention  cannot be made during the pendency of the Presidential Order, we do not  see how it would be open to the same detenu to claim  a mere declaration either under s.491, Cr. P.C.   or    Art. 226(1) or Art. 32(1) of the Constitution. We do not think that it was open to the High Court to consider the  validity of  the impugned Act without relation to the prayer made  by the  detenu in his petition.  The proceedings  commenced  by the  detenu  by  means of his petition  under  s.  491(1)(b) constitute  one proceeding and if the sole relief which  the detenu seeks to obtain cannot be claimed by him by virtue of the  Presidential  Order, it would be unreasonable  to  hold that  he  can  claim  a different  relief,  VI  Z.,  a  mere declaration; such a relief is clearly outside the purview of the  proceedings  under s. 491(1)(b) and  Arts.  226(1)  and 32(1). During  the course of the hearing of these appeals,  it  has

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 49  

been strenuously pressed before us by Mr. Setalvad that  the emergency created by the Chinese act of aggression may  last long  and  in consequence, the citizens would  be  precluded from  enforcing  their fundamental rights specified  in  the Presidential  Order during the period that the Order  is  in operation.   That, however, has no material bearing  on  the points   with  which  we  are  concerned.   How   long   the Proclamation   of   Emergency  should  continue   and   what restrictions should be imposed on the fundamental rights  of citizens  during the pendency of the emergency, are  matters which  must inevitably be left to the executive because  the executive  knows the requirements of the situation  and  the effect of compulsive factors which operate during periods of grave crisis, such as our country is facing 838 today.   As  Lord  Wright observed in  the  case  of  Liver- sidge(1),  "the safeguard of British liberty is in the  good sense of the people and in the system of representative  and responsible  government which has been evolved.   If  extra- ordinary  powers are here given, they are given because  the emergency is extraordinary and are limited to the period  of the, emergency." The other aspect of Mr. Setalvad’s argument was  that  during  Operation  the  Presidential  Order,  the executive may abuse. Its powers and the citizens would  have no  remedy.  This argument is essentially political and  its impact  on  the constitutional question with  which  we  are concerned  is  at  best  indirect.   Even  so,  it  may   be permissible  to  observe  that in a  democratic  State,  the effective  safeguard  against  abuse  of  executive   powers whether in peace or in emergency, is ultimately to be  found in  the existence of enlightened, vigilant and vocal  public opinion. The appellants have also relied upon the made by Lord  Atkin in the case of Eshuqbavi Elecko v. Officer Administering the Government  of  Nigeria  (2).  "In accordance  with  British jurisprudence," said Lord Atkin, "no member of the executive can  interfere  with the liberty or property  of  a  British subject  except  on the condition that he  can  support  the legality of his action before a Court of Justice.  And it is the  tradition  of British Justice that  Judges  should  not shrink  from  deciding  such  issues  in  the  face  of  the executive."  These noble sentiments so eloquently  expressed by Lord Atkin as well as his classic minority speech in  the case of Liversidge evoke a spontaneous response in the minds of  all of us who have taken the oath to administer  law  in accordance   with  our  Constitution  and  to   uphold   the fundamental   rights   of   citizens   guaranteed   by   the Constitution.   This Court is fully conscious of the  solemn duty  imposed  on  it by Art. 32 which  constitutes  it  the Custodian and Guardian of the citizens’ fundamental  rights. But  we  must  remember that the  democratic  faith  in  the inviolable  character of individual liberty and freedom  and the  majesty  of law which sustains it  must  ultimately  be governed  by the Constitution itself.  The  Constitution  is the law of laws-the paramount (1) [1942] A.C. 206 (2) A.I.R. 1931 P.C. 248. 839 and supreme law of the country.  It has itself enshrined the fundamental rights of the citizens in the relevant  Articles of Part III and it is no doubt the duty of this Court as the Custodian  of  those  rights  to  see  that  they  are   not contravened contrary to the provisions of the  Constitution. But  the  Constitution  itself has  made  certain  emergency provisions in Chapter XVIII with a view to en-,Able the  na-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 49  

tion to meet grave emergencies like the present, and so,  in dealing with the question about the citizen’s right to chal- lenge  the validity of his detention, we will have  to  give effect   to  the  plain  words  of  Art.  359(1)   and   the Presidential  Order  issued under it.  As  we  have  already indicated,  the  only reasonable construction which  can  be placed upon Art. 359)(1) is to hold that the citizen’s right to take any legal proceeding for the enforcement of his fun- damental  rights  which have been specified  in  the  Presi- dential Order is suspended during the prescribed period.  It is,  in our opinion, plain that the right specified in  Art. 35)(1) includes the relevant right, whether it is statutory, Constitutional or Constitutionally guaranteed, and the words "any  court" refer to all courts of  competent  jurisdiction and naturally include the Supreme Court and the High Courts. If that be so, it would be singularly inappropriate for this Court  to  entertain an argument which seeks  to  circumvent this  provision by suggesting that the right of- the  detenu to  challenge  the  legality  of  his  detention  under   s. 491(1)(b)  does  not  fall  within the  scope  of  the  said Article.   The said argument concentrates attention  on  the mere  form of the petition and ignores the substance of  the matter  altogether.   In  the  context,  we  think,  such  a sophisticated approach which leans solely on unrealistic and artificial  subtlety  is  out of  place  and  is  illogical, unreasonable and unsound.  We must, therefore, hold that the Punjab  and the Bombay High Courts were right in  coming  to the  conclusion  that  the detenues  before  them  were  not entitled to contend that the impugned Act and the  statutory Rule under which they were deained were void for the  reason that they contravened Arts. 14, 21 and 22(4), (5) & (7). Before  we part with these appeals, we ought to mention  one more  point.   At the commencement of the hearing  of  these appeals when Mr. Setalvad began to argue about 840 the  validity of the impugned provisions of the Act and  the Rules,  the  learned Attorney-General raised  a  preliminary contention  that  logically, the appellants  should  satisfy this Court that it was open to them to move the High  Courts on  the grounds set out by them before the validity  of  the said grounds is examined.  He suggested that, logically, the first  point to consider would be whether the  detenues  can challenge  the  validity of the impugned Act on  the  ground that  they  arc  illegally detained.   If  they  succeed  in showing  that  the  applications  made  by  them  under   s. 491(1)(b)  are competent and do not fall within the  purview of  Art. 359(1) and the Presidential Order, then  the  stage would  be reached to examine the merits of  their  complaint that  the  said  statutory  provisions  are  invalid.    If, however,  they  fail on the first point,  the  second  Point would not fall to be considered.  We then took the view that since  a  large number of appeals were  placed  for  hearing before us and they raised important issues of Constitutional Law,  it would be better to allow Mr. Setalvad to argue  the case  in  the manner he thought best, and so,  Mr.  Setalvad addressed  us  on  the  validity of the  Act  in  the  first instance  and  then  dealt  with  the  question  about   the competence of the applications made under s. 491 (1) (b)  of the  Code.  In the main, the same method was adopted by  the learned   Advocates  who  followed  Mr.  Setalvad   on   the appellants’  side.   Naturally, when the  learned  Attorney- General  made his reply, he also had to address us  on  both the points.  It appeared that as regards the validity of the impugned provisions of the Act and the Rules he was not in a position to challenge the contention of the appellants  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 49  

the Act contravened Arts. 14, 21 and 22(4), (5) & (7).  Even so,  he strongly pressed before us his  original  contention that we would not reach the stage of expressing our  opinion on  the  validity  of  the Act if  we  were  to  uphold  the preliminary  objection  that the applications  made  by  the detenues  were  incompetent.  In our  opinion,  the  learned Attorney-General  is right when he contends that  we  should not and cannot pronounce any opinion on the validity of  the impugned  Act  if  we come to the conclusion  that  the  bar created  by  the  Presidential Order  operates  against  the detenues in the present cases.  In fact, that is the  course which this Court 841 adopted  in dealing with Mohan Choudhury’s case(1),  and  we are satisfied that that is the only course which this  Court can logically and with propriety adopt. In  the result, we hold that the Punjab and the Bombay  High Court  are  right  in  coming to  the  conclusion  that  the applications made by the detenues for their release under s. 491  (1) (b), Cr.  P. C. are incompetent in so far  as  they seek  to challenge the validity of their detentions  on  the ground  that  the  Act and the Rule  under  which  they  are detained  suffer  from  the vice that  they  contravene  the fundamental rights guaranteed by Arts. 14, 21 and 22(4), (5) and (7).  Since these appeals were placed before the Special Bench for the decision of the common questions of law raised by them, we do not propose to examine the other  contentions which  each  one  of the appellants seeks to  raise  in  his appeal.  Therefore, we direct that all the appeals  included in  the  present  group  should now be  set  down  before  a Constitution Bench and each one of them should be dealt with in accordance with law. SUBBA  RAO  J.-I  have  had the  advantage  of  reading  the judgment  of my learned brother, Gajendragadkar J. I  regret my  inability  to agree with him wholly.  I agree  with  his conclusion in regard to the applicability of Art. 359 of the Constitution  to  a right to move a court  both  under  Art. 32(1)  and Art. 226 thereof, but not with his conclusion  in regard  to  the exercise of power by the  High  Court  under s.491 of the Code of Criminal Procedure. These  appeals raise questions of great importance  touching apparently  conflicting, but really harmonious, concepts  of individual liberty and security of the State, for the former cannot exist without the latter.  My only Justification  for a  separate  treatment of the subject even on  questions  on which  ,here is general agreement is my conviction  that  on important  questions I should express my thoughts in my  own way.  Broadly, two questions are posed for the consideration of  this Court, namely (i) whether s. 3(2) (15) (i)  of  the Defence of India Act, 1962 (51 of 1962), hereinafter  called the  Act, and r. 30(1)(b) of the Rules made in  exercise  of the power conferred under the Act are constitutionally void; and (ii) whether the Order made by the President in exercise of  the  power conferred on ’him under Art.  359(1)  of  the Constitution would be a (1)  [1964] 3 S.C.R. 442. 54- 2 S. C. India/64 842 bar  against the maintainability.of any action in any  court to  question the validity of the detention order made  under the Act. I  shall  deal  with the two questions in  the  said  order. Before dealing with the first question it would be  conveni- ent to quote the impugned provisions of the Act.                Section 3.-( 1) The.  Central Government  may

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 49  

             by notification  in the Official Gazette, make               such  rules  as  appear  to  it  necessary  or               expedient  for securing the defence  of  India               and  civil  defence, the  public  safety,  the               maintenance  of public order or the  efficient               conduct   of  military  operations,   or   for               maintaining supplies and services essential to               the life of the community. (2)Without  prejudice  to  the  generality  of  the   powers conferred by sub-section (1), the rules may provide for, and may empower any authority to make orders providing for,  all or any of the following matters, namely. (15)notwithstanding anything in any other law for the  time being in force,- (i)  the apprehension and detention in custody of any person whom  the authority empowered by the rules to  apprehend  or detain (the authority empowered to detain not being lower in rank  than  that  of a  District  Magistrate)  suspects,  on grounds  appearing  to that authority to be  reasonable,  of being  of hostile origin or of having acted,  acting,  being about  to act or being likely to act in a manner  prejudical to  the defence of India and civil defence, the security  of the State, the public safety or interest, the maintenance of public  order,  India’s relations with foreign  States,  the maintenance  of peaceful conditions in any part or  area  of India  or the efficient conduct of military  operations,  or with  respect to whom that authority is satisfied  that  his apprehension and detention are necessary for the purpose  of preventing him from acting in any such prejudicial manner,               *    *        *                    * Rule 30.-(1) The Central Government or the State Government, if  it  is satisfied with respect to any  particular  person that with a view to preventing him from 843 acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of  public order,   India’s   relations  with   foreign   powers,   the maintenance of peaceful conditions in any part of India, the efficient conduct of military operations or the  maintenance of  supplies  and  services essential to  the  life  of  the community, it is necessary so to do, may, make an order-               *         *               *             * (b)directing that he be detained. Rule30A.-(2) Every detention order shall be reviewedin               accordance with the provisions hereinafter contained. (3)A detention order made by the Central Government Or the State  Government or the Administrator shall be reviewed  by the  Central  Government  or the  State  Government  or  the Administrator, as the case may be. (4)A detention -order made by an officer (who shall in  no case  be lower in rank than that of a  District  Magistrate) empowered by the State Government or the Administrator shall be reviewed :- (a)  in the case of an order made by an officer empowered by the State Government, by a reviewing authority consisting of any  such two officers from among the following officers  of that Government, that is to say, the Chief Secretary, a mem- ber of the Board of Revenue, a Financial Commissioner and  a Commissioner  of  a Division, as may be  specified  by  that Government by notification in the Official Gazette ; (b)  in the case of an order made by an officer empowered by the Administrator, by the Administrator himself. Under  the  said provisions the Central  Government  or  the State  Government or an officer on whom the power to  detain

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 49  

is  delegated can direct the detention of any person if  the detaining  authority  is  satisfied that  his  detention  is necessary  for one or other of the reasons mentioned  in  r. 30. No grounds of detention need be served upon the  detenu; no opportunity need be given to him to make  representations or establish his innocence.  The period of detention can  be indefinite.  The Central Government or the 844 State Government or the Administrator of a Union  Territory, as  the  case may be, is authorised to review the  order  of detention  made by them.  So too, a detention order made  by an officer empowered by the State Government in that  behalf can be reviewed by one or other of the officers mentioned in r. 30A (4) It is contended that the said provisions infringe Art. 22(4) and  (5)  of the Constitution and,  therefore,  void.   This Court  in  Deepchand v. The State of Uttar  Pradesh(1)  laid down the effect of a law made in infringement of fundamental rights; and observed : "The result of the aforesaid discussion may be summarized in the  following  propositions; (i) whether  the  Constitution affirmatively confers powers on the legislature to make laws               subject-wise  or negatively prohibits it  from               infringing   any   fundamental   right,   they               represent   only,  two  aspects  of  want   of               legislative  power; (ii) the  Constitution  in               express terms makes the power of a legislature               to  make laws in regard to the entries in  the               Lists  of the Seventh Schedule subject to  the               other   provisions  of  the  Constituion   and               thereby  circumscribes  or  reduces  the  said               power by the limitations laid down in Part III               of the Constitution; (iii) it follows from the               premises  that a law made in derogation or  in               excess  of that power would be ab initio  void               wholly or to the extent of the  contravention,               as the case may be;......................" This view was accepted by a later decision of this Court  in Mahandra Lal v. State of U.P.(2). It  is,  therefore, manifest that if the Act and  the  rules framed thereunder infringed the provisions of Art. 22(4) and (5)  of the Constitution, they would be ab initio void  they would  be  stillborn law and any detention  made  thereunder would be an illegal detention.  Articles 21 and 22  enshrine fundamental  rights relating to personal liberty,.   Clauses (4)  to  (6) of Art. 22 specifically  deal  with  preventive detention.   This Court has held in A. K . Gopalan v.  State of  Madras(3) that the word ’.,law" in Art. 21 means  State- made law or enacted law and that Art. 22 lays down only  the minimum procedural conditions which such a (1) [1959] Supp. 2 S.C.R. 8, 40. (2 ) A.I.R. 1963 S.C. 1019.    (3) [1950] S.C.R. 88. 845 a  statutory  law  cannot infringe in  the  matter  of  pre- ventive  detention.  The minimum conditions arc as  follows: (1) Parliament may make a law prescribing the maximum period for  which any person may be detained; (2) he shall  not  be detained for a period more than 3 months unless an  Advisory Board constituted for that purpose reports before the expiry of three months that there is sufficient cause for detention ;  and (3) the authority making the order shall  communicate to such person the grounds on which the order has been  made and   afford   him  the  earliest  opportunity   of   making representations against the order.  At the same time cl. (7) enables   Parliament   to  make  a   law   prescribing   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 49  

circumstances under which and the class or classes of  cases in  which a person may be detained for a period longer  than three  months without obtaining the opinion of the  Advisory Board.   Clause (6) of Art. 22 enables an authority  not  to disclose  facts  to  the detenu which  it  considers  to  be against the public interest to disclose.  While cls. (4)  to (6)  of  Art. 22 provide for the minimum  safeguards  for  a dctenu  in  the  matter of  preventive  detention,  cl.  (7) removes   them  enabling  Parliament  to  make  a  law   for preventive   detention   ignoring   practically   the   said safeguards.   The only outstanding safeguard, therefore,  is that  Parliament  can only make a law in derogation  of  the said  safeguards by defining the circumstances  under  which and  the class or classes of cases in which a person may  be so detained.  Parliament did not make such a law. Neither  the Act nor the rules made thereunder  satisfy  the conditions laid down in that clause.  The Act and the  rules do not provide for the maximum period of detention, for  the communication to the detenu of the grounds of detention, for affording  him  an  opportunity  of  making  representations against  his detention, or for an Advisory Board  consisting of persons with the requisite qualifications.  The power  to review  given to the detaining authority cannot  conceivably satisfy  the  condition of an Advisory  Board  provided  for under cl. (4)(a) of Art. 22.  It is, therefore, a clear case of  Parliament  making a law in direct  infringment  of  the relevant  provisions  of Art. 22 of  the  Constitution,  and therefore the law so made is void under the said Article., 846 In  this context a relevant aspect of the argument  advanced by the learned Attorney-General may be noticed.  He contends that,  on  a  true  construction  of  Art.  359(1)  of   the Constitution,  if  the  requisite  order  is  made  by   the President,  a law can be made in infringement of Art. 22  of the  Constitution.   Under Art. 359, 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  as may be mentioned in the order shall remain suspended for the period during which a Proclamation of Emergency is in  force or for such shorter period as may be specified in the order. It is contended that when remedy is suspended in respect  of infringement  of  Art. 22, the right thereunder  also  falls with  it.  It is said that right and remedy are  reciprocal; and  if  there  cannot be a right without  a  remedy,  there cannot  also  be a remedy without a right.  In  "Salmond  on jurisprudence", 11th Edn., the following interesting passage is  found,  at  p.  531, under  the  heading  "Ubi  jus  Ibi Remedium"; "Whenever  there is a right, there should also be an  action for  its enforcement.  That is to say, the  substantive  law should determine the scope of the law of procedure, and  not vice versa.  Legal procedure should be sufficiently  elastic and  comprehensive  to afford the requisite  means  for  the protection of all rights which the substantive law sees  fit               to  recognize.  In early systems this  is  far               from  being the case.  We there find  remedies               and  forms of action determining  rights  than               rights  determining  remedies.  The  maxim  of               primitive  law  is rather,  Ubi  remedium  ibi               jus." I  understand this passage to mean that a right pertains  to the substantive law and the remedy, to procedural law;  that where a right is provided by a statute a remedy, though  not expressly provided for, may necessarily be implied.  But the converse,  though  obtained  in  primitive  law,  cannot  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 49  

invoked  in  modern times.  To put it in  other  words,  the suspension  of  a remedy cannot abrogate the  right  itself. Indeed,  a  comparative study of Arts. 358 and  359  of  the Constitution  indicates  that  it could not  have  been  the intention  of the makers of the Constitution, for  Art.  358 expressly  suspends the right whereas Art. 359 suspends  the remedy.  If the contention of the learned Attorney 847 General be accepted, both have the same effect: if that  was the intention of the makers of the Constitution, they  would not  have expressed themselves in different ways in the  two articles.   Where they intended to suspend the  right,  they expressly  said so, and where they intended only to  suspend the  remedy, they stated so.  We cannot,  therefore,  accept this contention. At this stage I may also notice the argument of the  learned Attorney General that Art. 359, by enabling the President to suspend  the  right  to  move for  the  enforcement  of  the fundamental  rights mentioned therein,  impliedly  permitted Parliament  to make laws in violation of  those  fundamental rights  in  respect whereof the right to move the  court  is suspended.   I cannot appreciate this argument.  It  is  one thing  to  suggest  that in view of  the  amplitude  of  the phraseology  used  in Art. 359, the right to  move  for  the enforcement  of fundamental rights infringed by a void  law, even deliberately made by Parliament, is suspended but it is a  different  thing  to  visualize  a  situation  when   the Constitution  permitted  Parliament  under  the  shelter  of executive  fiat to make void laws.  Indeed, a comparison  of Art. 358 and Art. 359 I shall deal with them in detail later on-indicates the contrary.  I cannot for a moment  attribute to  the august body, the Parliament, the intention  to  make solemnly  void laws.  It may have made the present  impugned Act  bona  fide  thinking  that  it  is  sanctioned  by  the provisions  of  the Constitution.  Whatever it may  be,  the result  is, we have now a void Act on the statute  book  and under  that Act the appellants before us have been  detained illegally.  To use the felicitous language of Lord Atkin, in this  country  "amid  the clash of arms, the  laws  are  not silent;  they  may  be  chanced, but  they  speak  the  same language  in war as in peace".  The tendency to  ignore  the rule  of  law is contagious, and, if our  Parliament,  which unwittingly made a void law, not only allows it to remain on the statute book, but also permits it to be administered  by the  executive, the contagion may spread to the people,  and the  habit  of lawlessness, like other  habits,  dies  hard. Though  it  is not my province, I venture to suggest,  if  I may,  that  the Act can be amended in  conformity  with  our Constitution without it losing its effectiveness. This leads us to the question whether the appellants, 948 who  are illegally detained, can move this Court under  Art. 32  of  the Constitution or the High Court  under  Art.  226 thereof  or under s. 491 of the Code of Criminal  Procedure, hereinafter called the Code.  It would be convenient at this stage to read the relevant provisions of the Constitution. Article  32.(1)  The  right to move  the  Supreme  Court  by appropriate  proceedings for the enforcement of  the  rights conferred by this Part is guaranteed.               *            *     *              * (3)Without  prejudice  to  the  powers  conferred  on  the Supreme Court by clauses (1) and (2), Parliament may by  law empower any other Court to exercise within the local  limits of its jurisdiction all or any of the powers exercisable  by the Supreme Court under clause (2).

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 49  

(4)The  right  guaranteed  by this article  shall  not  be suspended   except  as  otherwise  provided  for   by   this Constitution. Article.  226  (1) Notwithstanding anything in  article  32, every   High   Court  shall  have  power,   throughout   the territories in relation to which it exercises  jurisdiction, to   issue  to  any  person  or  authority,   including   in appropriate  cases any Government, within those  territories directions,  orders or writs, including writs in the  nature of  habeas corpus, mandamus, prohibition,’ quo warranto  and certiorari,  or any of them, for the enforcement of  any  of the rights conferred by Part III and for any other purpose. (2)The  power conferred on a High Court by clause (1)  shall not  be in derogation of the power conferred on the  Supreme Court by clause (2) of article 32. Article  358.   While  a Proclamation  of  Emergency  is  in operation nothing in article 19 shall restrict the power  of the State as defined in Part III to make any law or to  take any  executive  action  which the State would  but  for  the provisions contained in the Part be competent to make or  to take,  but  any  law so made shall, to  the  extent  of  the incompetency,   cease  to  have  effect  as  soon   as   the Proclamation ceases to operate, 849 except as respects things done or omitted to be done  before the law so ceases to have effect. Article  359  (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 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. Article 33 confers power on Parliament to modify the  rights conferred  by Part III in their application to Armed  Forces or the Forces charged with the maintenance of public  order; Art.  34  enables Parliament to impose restrictions  an  the rights  conferred by Part III while martial law is in  force in any area. The contention of learned counsel for the appellants on  the construction of the said provisions may be classified  under the following heads: (1) Art. 358 permits the State to  make laws  only in infringement of Art. 19 of  the  Constitution, and Art. 359 suspends only the right to move the enforcement of the fundamental rights specified in the President’s Order and,  therefore,  Art.  359 cannot be  so  construed  as  to enlarge  the  legislative  power of  Parliament  beyond  the limits  sanctioned by Art. 358 and, therefore, it should  be confined only to executive infringements of the said rights. (2)  Article  359 does not permit the  executive  to  commit fraud   on  the  Constitution  by  doing   indirectly   what Parliament cannot do directly under Art. 358 and Art.  13(2) of   the  Constitution.  (3)  For  invoking  Art.  359   two conditions  must  be complied with, namely,  (i)  the  party shall have a right to move any court, and (ii) only for  the enforcement  of  the rights conferred by Part III.   Such  a right  to move for such a relief is expressly  conferred  by the Constitution under Art. 32.  Therefore, the  President’s order  under Art. 359 would only suspend the right  to  move under  Art. 32 and not for approaching the Court under  Art. 226  of  the  Constitution.  In any view,  those  words  are inappropriate to a pre-existing statutory right under s. 491 of the Code. 850

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 49  

To appreciate the contentions from a correct perspective  it is  necessary  at  the outset to notice the  nature  of  the fundamental  rights  enshrined in the Constitution  and  the remedy or remedies provided for their enforcement.  It would be  pedantic  to go into the  question  whether  fundamental rights  provided  for  under our  Constitution  are  natural rights  or primordial rights : whatever their  origin  might have  been  and from whatever source they  might  have  been extracted,  they are enshrined in our Constitution  in  Part III  and described as fundamental rights.  The  constitution declared under Art. 13(2) that the State shall not make  any law  taking  away or abridging the said rights and  any  law made  in contravention of this clause shall be void  to  the extent  of  the contravention.  After declaring such  a  law void, it proceeds to provide for the mode of enforcement  of the said rights.  Article 32(1) makes the right to move  the Supreme Court by appropriate proceedings for the enforcement of   the  said  rights  a  guaranteed  right.    Appropriate proceedings  are  described in cl. (2) thereof, that  is  to say,  a  person  can move the  said  Court  for  directions, orders, or writs in the nature described thereunder for  the enforcement  of any of the said rights.  The right to  move, therefore,   is  regulated  by  the   procedure   prescribed thereunder.  Article 226, though it does not find a place in Part III of the Constitution, confers a power on every  High Court  throughout  the territories in relation to  which  it exercises jurisdiction to issue such directions, orders,  or writs in the nature described thereunder for the enforcement of  any  of the rights conferred by Part III.   There  is  a material  difference  between Art. 32 and Art.  226  of  the Constitution, namely, while in Art. 32 the right to move the court  is  guaranteed, under Art. 226 no such  guarantee  is given.   But a fair construction of the provisions  of  Art. 226 indicates that the right to move, though not guaranteed, is  necessarily  implied therein.  As I  have  pointed  out, under  Art.  32  the  right to move the  Court  is  given  a practical content by the provision indicating the  different modes open to the person who has the said right to  approach the  Supreme Court.  Article 226 employs the same  procedure for  approaching  the  High Court and  that  procedure  must necessarily be for the exercise of the right to move that 851 court.  When a power is conferred upon the High Court and  a procedure is prescribed for a party to approach that  court, it  is  reasonable to imply that the person has a  right  to move  that court in the manner prescribed  thereunder.   The only  difference  between Art. 32 and Art. 226 is  that  the Supreme  Court  cannot  say, if it is moved  in  the  manner prescribed, that it will not decide on merits, but the  High Court,  in  exercise  of its jurisdiction can  do  so.   The decision  on  merits is left to its discretion,  though  the exercise  of that discretion is regulated by convention  and precedent.   Further, Art. 32(3) also enables Parliament  to make a law empowering any other court to exercise within the local limits of itsjurisdiction  all or any of  the  powers exercisable by theSupreme Court  under  cl.  (2)  thereof. One thing to benoticed  is  that  Parliament  can  only empower any othercourt to exercise   any  of  the  powers exercisable under cl.(2)   ;   it  cannot   confer   the guaranteed right mentioned in cl. (1) on any person to  move that  court.  That is to say, the court or courts  to  which such  powers are given would be in the same position as  the High Court in respect of the enforcement of the  fundamental rights.  To put it shortly, no person will have a guaranteed right  to move any such other court for the  enforcement  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 49  

fundamental rights.  A discretionary jurisdiction similar to that  of the High Court can only be conferred on them.   For the  same  reason given in the case of the  High  Court,  an aggrieved party will also have a right to move those  courts in the manner prescribed. This  analysis leads us to the following position Under  the Constitution  every  person  has a right to  move,  for  the enforcement  of a fundamental right, the Supreme Court,  the High  Courts  or any other court or  courts  constituted  by Parliament  by law in the manner prescribed i.e., by one  or other  of  the  procedural writs  or  directions  or  orders described thereunder. With  this  background  let  me have a  close  look  at  the provisions  of Art. 359.  The expressions used in  Art.  359 are  clear and unambiguous.  Three expressions stand out  in bold relief, namely, (i) "right to move", (ii) "any  Court", and  (iii)  "for  the  enforcement of  such  of  the  rights conferred by Part III".  "Any Court" implies more 852 than  one  court, but it cannot obviously be  any  court  in India, for it must be a court where a person has a right  to move for the enforcement of the fundamental rights.  It can, therefore,  be  only the Supreme Court, High  Court  or  the courts or courts constituted by Parliament under Art. 32(3). If  the contention of learned counsel for the appellants  be accepted,  the expression "court" should be confined to  the Supreme Court.  But the Article does .not say either Supreme Court or that the right to move is the guaranteed one  under Art. 32(1).  The next question is, what do the words  "right to  move"  mean?   The right to move  is  qualified  by  the expression  "for  the  enforcement of  such  of  the  rights conferred  by Part 111".  Therefore, the right to move  must be  a right to move the Supreme Court or the High  Court  in the  manner prescribed by Art. 32(2) or Art. 226(1)  of  the Constitution for the enforcement of the fundamental  rights. The words in the second limb of the Article viz., that  "all proceeding.s pending in any court for the enforcement of the rights  so mentioned shall remain suspended" only relate  to the  proceedings instituted in exercise of the said right  : they  do not throw any light on the scope of the  "right  to move’.   This  construction  gives  full  meaning  to  every expression used in the Article. if so construed, it can only mean that the temporary bar that can be imposed by an  order of  the  President is not confined only  to  the  guaranteed right  of  a  person  to move  the  Supreme  Court  for  the enforcement  of his fundamental rights, but also extends  to the right of a person to move the High Court or the Court or Courts constituted by Parliament for the enforcement of such of  the  fundamental rights as mentioned in  the  order.   I would, therefore, hold that the President’s order under Art. 359  suspending  the right to move any court in  respect  of specified fundamental rights includes not only the right  to move under Art. 32 but also that under Art. 226. The  more difficult question is whether Art. 359 can  be  so construed as to empower the President to suspend all actions which a person may take under a statute or common law, if he seeks  thereby  to  protect  his  liberty  against  unlawful encroachment  by State or its officers.  To put it in  other words, can a person, who is illegally 853 detained under a void law, approach the High Court under  s. 491 of the Code or file a suit in a civil court for  damages for illegal confinement or take any other legal  proceedings open  to him?  Learned Attorney General contends  that  "any court"  in  Art. 359 means any court in India and  that  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 49  

expression  "enforcement of fundamental rights" implies  any relief  asked for by a party if the granting of such  relief involves  directly or indirectly a decision on the  question whether  any  of  the fundamental rights  specified  in  the President’s  order has been infringed.  This argument, if  I may   say   so,  completely  ignores  the  scheme   of   the Constitution.   Under  the Constitution, a person  may  have three kinds of rights, namely, (i) fundamental rights,  (ii) constitutional  rights,  and (iii) statutory or  common  law rights.   Under Art. 32(1) a person has a fundamental  right to move the Supreme Court for enforcement of his fundamental rights; under Art. 226, a person has a constitutional  right to  move  the  High Court for the enforcement  of  the  said rights.   Parliament,  by  law, in exercise  of  its  powers conferred  on  it under Art. 245, may confer a  right  on  a person  to move any court for a relief wider in  scope  than that  provided by Art. 32 or Art. 226 of  the  Constitution. Though  Parliament may not have power, except in  the  cases specified  to circumscribe the fundamental rights  enshrined in  Part  III  it can certainly make  a  law  enlarging  the content of the substantive and procedural rights of  parties beyond  those  conferred by Part III.  Under  this  category there  may also be laws made by competent  authority  before the  commencement of the Constitution, but  continued  under Art.  372,  which do not any way  infringe  the  fundamental rights created by the Constitution.  Section 491 of the Code is   one  of  the  pre-Constitution   statutory   provisions continued  under Art. 372 of the Constitution.  It does  not in  terms  posit any right to move the High  Court  for  the enforcement of fundamental rights.  Therefore, the  argument of the learned Attorney General involves considerable strain on the express language of Art. 359, for, he in effect  asks us  to  equate  the  expression "a right  to  move  for  the enforcement of fundamental rights" with any relief asked for in  any proceedings in any court, whether initiated  at  the instance of the party affected or not, 854 or  whether started suo motu by the court, if it involves  a decision  on the question whether a particular law was  void for  the  reason that it infringed  the  fundamental  rights mentioned  in  the President’s order.  In  support  of  this contention  he presses on us to hold that in days of  stress and  strain i.e., when there is a threat of war  and  conse- quently  an emergency is declared, a court has to adopt  the principle of "strained construction" which will achieve  the object  behind  Art. 359 of the Constitution and  the  order issued  by  the  President.  I  shall  briefly  examine  the decisions  cited by him to ascertain whether any such  novel doctrine of construction of statutes exists. Rex v. Halliday(1) is a decision of the House of Lords  made in 1917 i.e., during the First World War.  Regulation 14B of the  Defence of the Realm (Consolidation) Regulation,  1914, empowered the Secretary of State to order the internment  of any  person of hostile origin or associations, where on  the recommendation of a competent naval or military authority it appeared to him expedient for securing the public safety  or the defence of the realm.  This regulation was authorized by the Defence of the Realm Consolidation Act, 1914, s. 1, sub- section 1. The House of Lords, by a majority, held that  the Act  conferred upon , the King-In-Council power, during  the continuance  of the war, to issue regulations  for  securing the  public safety and the defence of the realm and,  there- fore, the regulation was valid.  It was urged there that  no such restraint of personal liberty should be imposed  except as a result of judicial enquiry.  It was also contended that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 49  

if  the  Legislature  intended to  interfere  with  personal liberty it should have provided for suspending the right  of the subject as to the writ of heabeas corpus.  The  argument was negatived.  Lord Atkin observed  "The  subject  retains  every right  which  those  statutes confer upon him to have tested and determined in a Court  of law, by means of a writ of Habeas Corpus,, addressed to  the person in whose custody he may be, the legality of the order or  warrant by virtue of which he is given into or  kept  in that  custody.  If the Legislature chooses to enact that  he can be deprived of his liberty and incarcerated or (1)  L.R. 1917 A.C. 260, 272. 855 interned for certain things for which he could not have been heretofore incarcerated or interned, that enactment and  the orders  made under it, if intra vires, do not infringe  upon the Habeas Corpus Acts in any way whatever, to take away any rights conferred by Magna Charta, for the simple reason that the  Act  and  these Orders become part of the  law  of  the land." This  decision  does  not lay down any  new  rule  of  cons- truction.  Parliament is supreme in England.  It its  wisdom it  did not take away the habeas corpus, but  empowered  the executive to issue regulations for public safety and defence of the nation.  The regulation made did not exceed the power conferred  by the Parliament.  The House of Lords held  that the detention was in accordance with law. Nor does the controversial decision in Liverside v. Sir John Anderson(1),  which was the subject of servere criticism  in later  years,  lay down any such new rule  of  construction. There,  the Secretary of State, acting in good  faith  under reg. 18B of the Defence (General) Regulations, 1939, made an order  in which he recited that he bad reasonable  cause  to believe  a person to be of hostile associations and that  by reason thereof it was necessary to exercise control over him and directed that that person be detained.  The validity  of the  detention turned upon the construction of  the  express provisions  of  reg. 18B of the said Regulations.   In  that regulation  the  expression used was  "reasonable  cause  to believe  any person to be of hostile origin".  The House  of Lords,  by a majority, held that the expression  meant  that "the Secretary of State thinks fit to be reasonable".  There was  a  powerful dissent by Lord Atkin on  the  question  of construction.  With the correctness of the construction  put upon  by  the  majority on the said  provision  we  are  not concerned  ; but none of the learned law Lords laid down  in their speeches any new rule of construction peculiar to  war conditions.  Viscount Maugham observed : "My  Lords, I think we should approach the  construction  of reg.  18B of the Defence (General) Regulations  without  any general presumption as to its               (1) L.R. 1942 A.C. 206, 219, 251. 856 meaning  except  the universal  presumption,  applicable  to Orders in Council and other like instruments, that, if there is  a reasonable doubt as to the meaning of the words  used, we should prefer a construction which will carry into effect the  plain intention of those responsible for the  Order  in Council rather than one which will defeat that intention." Lord  Atkin, in his dissenting judgment,  protested  against the  strained construction put on words with the  effect  of giving   an  uncontrolled  power  of  imprisonment  to   the minister.  Then he proceeded to observe : "The  words have only one meaning.  They arc used with  that meaning  in  statements of the common law and  in  statutes.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 49  

They have never been used in the sense now imputed to them." These  observations by the dissenting Lord may at  the  most indicate  that  the majority in fact put  a  strained  cons- truction  on the express words used in the  regulation;  but they  do not show that they have laid down any such rule  of construction.  This is made clear by Lord Macmillan when  he stated: "In  the first place, it is important to have in  mind  that the regulation in question is a war measure.  This is not to say  that  the courts ought to adopt in  wartime  canons  of construction different from those Which they follow in peace time.    The  fact  that  the  nation  is  at  war   is   no Justification  for  any relaxation of the vigilance  of  the courts in seeing that the law is duly observed,.  especially in  a matter so fundamental as the liberty of  the  subject- matter  the contrary.  But in a time of emergency  when  the life  of the whole nation is at stake it may well be that  a regulation  for the defence of the realm may quite  properly               have  a meaning which because of  its  drastic               invasion  of  the liberty of the  subject  the               courts  would be slow to attribute to a  peace               time  measure.  The purpose of the  regulation               is to ensure public safety, and it is right so               to  interpret  emergency  legislation  as   to               promote rather than to defeat its efficacy for               the   defence  of  the  realm.   That  is   in               accordance  with a general rule applicable  to               the interpretation of 857 all statutes or statutory regulations in peace time as  well as in war time." These observations should be understood in the background of the earlier observation : "I  do not agree that the critical phrase in the context  in which  I find it is susceptible only of one meaning,  namely that for which the appellant contends.  Were it so it  would be strange that several learned judges should have found  it to possess quite a different meaning." This  judgment, therefore, is no authority for the  position for which it is relied upon.  The decision in substance says that the rule of construction of a statute is the same  both in  peace  time and in war time and that when  there  is  an ambiguity  in the expressions used, the court may give  such meaning to the words used which are capable of bearing  that meaning  as would promote rather than defeat the  object  of the legislation.  Indeed, the Privy Council, in Nakkuda  Ali v.  Jayaratna(1), confined the interpretation put upon  reg. 18B  of  the  Defence  (General)  Regulations,  1939,  by  a majority   of   the  House  of  Lords  to   the   particular cricumstances  of  that case and they did  not  accept  that construction when similar words were used in the  Regulation 62  of the Defence (Control of Textiles) Regulations,  1945. I cannot, therefore, hold that the said decisions  suggested a  new rule of construction peculiar to war  measures.   The rules of construction are the same in war time as well as in peace  time.  The fundamental rule of construction  is  that the  courts have to find out the expressed intention of  the Legislature  from the words of the enactment itself.   Where the  language is unambiguous, no more is necessary  than  to expound  those  words in their natural and  ordinary  sense. But where the words are ambiguous and reasonably capable  of bearing two meanings, the court may be justified in adopting that  meaning  which  would further  the  intention  of  the Legislature rather than that which would defeat it. In  the present case we are not dealing with a war  measure,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 49  

but a constitutional provision which was designed to  govern the affairs of our country for all times so (1) L.R. 1 [1951] A.C. 66. 55-2 S C India/64. 858 long  the  Constitution  remains in force ;  and  it  cannot certainly be strained to meet a passing phase in a country’s life.  A strained construction put upon a statutory provison to  meet  a  particular  emergency may  be  rectified  by  a subsequent  enactment.  But such a construction put  upon  a constitutional provision might entail serious  consequences. Even  if  Liversidge’s case(1) had laid down a new  rule  of construction,  that  construction cannot be invoked  in  the case of a constitutional provision. In Gibbons v. Ogden(2) the following rule of construction of a constitutional provision is stated : "That  which  the  words  declare  is  the  meaning  of   an instrument  ; and neither Courts nor legislatures  have  the right  to  add or to take away from that meaning.   This  is true  of every instrument, but when we arc speaking  of  the most solemn and deliberate of all human writings those which ordain  the fundamental law of states, the rule rises  to  a very  high degree of significance.  It must’ be very  plain, nay absolutely certain, that the people did not intend  what the  language  they have employed in  its  natural  signifi- cation, imports, before a Court will feel itself at  liberty to  depart from the plain reading of a  constitutional  pro- vision." No  doubt a constitution should receive a fair, liberal  and progressive  construction  so that the true objects  of  the instrument  may be promoted ; but such a construction  could not do violence to the natural meaning of the words used  in particular provision of the Constitution. The relevant provisions of s. 491 of the Code read (1) Any High Court may, whenever it thinks fit, direct- (a)  that a person  within  the  limits  of  its   appellate               criminal jurisdiction be brought up before the               Court to be dealt with according to law ; (b)  that  a  person  illegally or  improperly  detained  in public  or  private  custody within such limits  be  set  at liberty               *          *         *         * Bearing in mind the said rules of construction, I ask myself the question whether the exercise of the power un-               (1) [1942] A.C. 206.               (2) (1824) 6 L.Ed. 23. 859 der s. 491 of the.  Code can be equated with a right to move the  High  Court to enforce such of the  fundamental  rights conferred  by  Part  III  of  the  Constitution  as  may  be mentioned in the order of the President.  It is necessary to ascertain  the  correct scope of the section to  answer  the question  raised before us.  The section is framed  in  wide terms  and  a discretionary power is conferred on  the  High Court to direct one or other of the things mentioned therein "whenever it thinks fit".  Unlike Art. 32 and Art. 226,  the exercise  of  the  power  is  not  channelled  through  well recognized procedural writs or orders.  With the result  the technicalities  of  such procedural writs do not  govern  or circumscribe  the  court’s discretion.  A short  history  of this  section  reinforces the said  view.   Originally,  the Supreme  Courts in India purported to exercise the power  to issue  a  writ  of  habeas corpus  which  the  Kings’  Bench Division  in England exercised.  In 1861  Parliament  passed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 49  

Acts  24-25 Vict.  Ch. 104 authorising the establishment  of High  Courts  of judicature in India.  The  Letters  Patents issued under that Act in 1865 were expressly made subject to the  legislative powers of the Governor-General in  Council. The  courts  were  given the same  jurisdiction,  power  and authority which the Supreme Courts possessed but subject  to the  legislative power of the Governor-General  in  Council. Pursuant to the power so conferred, the Governor-General  in Council passed successive Codes of Criminal Procedure in the years 1872, 1875, 1882;and,1898, and in 1923 by the Criminal Law  (Amendment) Act, some of the provisions of the Code  of 1898  were amended.  The High Courts Act of 1861  authorized the Legislature, if it thought fit, to take away the  powers which the High Courts exercised as successor to the  Supreme Courts,  and  Acts  of  Legislatures  passed  in  1872   and subsequent years had taken away the power of the High Courts to  issue prerogative writs ; and instead a statutory  power precisely defined was conferred upon the High Courts.   That statutory  power underwent various changes and finally  took the  form  of s. 491 of the Code, as at present  it  stands. The  attempt  to  resuscitate  the  prerogative  writs   was rejected  by  the  Calcutta  High  Court  in  Girindra  Nath Banerjee v. Birendra Nath Pal(1) and (1)  (1927) I.L.R. 54 Cal. 727. 860 by the Madras High Court in District Magistrate,  Trivandrum v.  Mammen  Mappillai(1).  The Privy Council  in  Matten  v. District   Magistrate,  Trivandrum(2)  approved   the   said decisions and held that the said Act.,, have taken away  the power  of  the High Courts to issue  prerogative  writs  and thereafter  the only power left in the High Court  was  that conferred  by  the statute.  By reason of Art.  372  of  the Constitution,  the Code of Criminal Procedure, including  s. 491  thereof,  continued  to  be  in  force  until  altered, repealed  or amended by the competent Legislature  or  other competent  authority.   Article  225  of  the   Constitution expressly   preserved   the   High   Courts’   powers    and jurisdiction,   subject   to   other   provisions   thereof. Admittedly,  Parliament has not made any- law  repealing  s. 491 of the Code.  The statutory power conferred on the  High Courts under that section is not inconsistent either Art. 32 or  with Art. 226 or with any other Article in Part  III  or any  other  Chapter of the Constitution.  So, it  cannot  be held  that s. 491 of the Code has been impliedly  superseded by Art. 226 even to the extent it empowers the High Court to give relief to persons illegally detained by the State.  Now what  is  the scope of that section?  Though s. 491  of  the Code is remedial in form, it postulates the existence of the substantive right.  In India, as in England, the rule of law was  the accepted principle.  No person can be  deprived  of his  liberty except in the manner prescribed by the  law  of the  land.  If a person is illegally or improperly  detained in  violation  of the law of the land, the  High  Court  can direct  his release "whenever it thinks fit" so to do.   The section prima facie does not predicate a formal  application ;  nor  does  it insist that  any  particular  person  shall approach  it.  The phraseology used is wide enough  for  the exercise of the power suo motu by the High Court.  Nor  does the section introduce an antithesis between the exercise  of jurisdiction  on application and that exercised suo  motu  ; that is to say, even if an application was filed before  the High  Court and for one reason or other, no orders could  be passed  thereon,  either  because of  procedural  defect  or because it was not pressed, (1)  L.I.R. 1939 Mad. 708‘

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 49  

(2)  L.R. (1939) 66 I.A. 222. 861 nothing prevents the High Court from acting suo motu ,on the basis of the information brought to its notice.  It is  said that  various  High  Courts  framed  rules  regulating   the procedure  of the respective High Courts, but that  fact  is not much relevance in the matter of construing the  section. Shortly  stated,  the  High  Court  is  given  an   absolute discretion  to  direct  a person,  who  has  been  illegally detained,  to be released, whenever that fact is brought  to its  notice through whatever source it may be.  This  juris- diction  existed long before the Constitution was  made  and long  before the fundamental rights were conferred upon  the people  under the Constitution.  The rights, substantive  as well as procedural, conferred under Part III and Art. 226 on the one hand and under s. 491 of the Code on the other,  are different.   Under Arts. 32 and 226, an affected  party  can approach  the Supreme Court or the High Court, as  the  case may  be, only in the manner prescribed under Art.  32(2)  or Art. 226 i.e., by way of writs and orders mentioned  therein :  he  must  ask  the court  for  the  enforcement  of  this fundamental   right.   The  relief  implies  that  he   must establish  that  he  has  a  fundamental  right,  that   his fundamental  right  has  been infringed by  the  State  and, therefore, the Court should give the appropriate relief  for the  enforcement of that right.  Both the right as  well  as the  procedure  are  the  creatures  of  the   Constitution. Whereas  s.  491 of the Code assumes the  existence  of  the "rule  of  law"  and confers a power on the  High  Court  to direct  persons in illegal detention to be set  at  liberty. It is not bound by any technical procedures envisaged by the Constitution.   If  a  person  approaches  the  High   Court alleging  that  he or some other person has  been  illegally detained,  the Court calls upon the detaining  authority  to sustain the validity of the action.  The onus of proof  lies on  the custodian to establish that the person  is  detained under  a legal process ; but if it fails to  establish  that the  person  is detained under law, the said person  may  be released.  It is true that the detaining authority will have to satisfy the court that the law under which the  detention is  made  is  a  valid one.  It may also  be  true  that  in scrutinizing  the validity of that law the court has  to  go into  the  question  whether  the law  offends  any  of  the fundamental rights mentioned 862 in Part III of the Constitution.  But that circumstance does not  by  any  process of involved reasoning  make  the  said proceeding  one initiated in exercise of the right  to  move the  High  Court  for the enforcement  of  the  petitioner’s fundamental right.  The distinction between the two lies  in the  fact  that  one is an  enforcement  of  a  petitioner’s fundamental   right  and  the  other,  a  decision  on   the unconstitutionality of a law because of its infringement  of fundamental rights generally. Further,  the  right  and the relief have  a  technical  and specific  significance  given to them by  the  Constitution. They cannot be equated with the mode of approach to the High Court   under   s.   491   of   the   Code   or   with   the expression"whenever    it    thinks    fit"    confers    an absolute discretionon  the  court  to  exercise  its  power thereunder or not todo   so,  having  regard   to   the circumstances of each case.  While the word "may" used in  a statute  was sometimes construed as imposing a duty  on  the authority concerned on whom a power is conferred to exercise the.  same if the circumstances necessitated  its  exercise,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 49  

the expression "whenever it thinks fit" does Rot warrant any such  limitation on its absolute discretion.   Though  ordi- narily  a High Court may safely be relied upon  to  exercise its  powers  when  the liberty of  a  citizen  is  illegally violated  by  any authority, the said  unlimited  discretion certainly  enables  it  in  extraordinary  circumstances  to refuse  to come to his rescue.  The  absolute  discretionary jurisdiction  conferred under s. 491 of the Code  cannot  be put on a par with the jurisdiction conferred under Art.  226 of the Constitution hedged in by constitutional limitations’ A brief reference to decided cases on the scope of s. 491 of the Code will make my meaning clear. In  Alam Khan v. The Crown(1), the Full Bench of the  Lahore High Court has defined the scope of s. 491 of the Code.  Ram Lall, J., who spoke for the majority, stated, after  quoting the relevant part of the section "The language of the section places no limit on the class of person or persons who can move a High Court with relation to a person in custody and if the               (1) (1947) I.L.R. 28 Lahore 274, 303. 863 High Court on hearing the petition thinks fit. to do so, may make an order that he be dealt with according to law." In  Ramji Lal v. The Crown(1), a Full Bench decision of  the               East  Punjab  High Court, Mahajan, J.,  as  he               then  was,  defined  the  wide  scope  of  the               section thus "Whatever may be the state of English law on the subject  so far  as  section  491  of the  Criminal  Procedure  Code  is concerned  it  has  been  very  widely  worded  and  confers Jurisdiction  on the Court to issue directions  whenever  it thinks  fit.  The Court may be moved by the prisoner  or  by some relation of his, or it may act suo motu if it  acquires knowledge that a certain person has been illegally detained. The  mode and manner in which the judge has to be  satisfied cannot  affect  the  Jurisdiction  conferred  on  him  under section 491 of the Criminal Procedure Code." In  King Emperor v. Vimlabai Deshpande(2), a police  officer made an arrest of the respondents under sub-rule I of r. 129 of  the  Defence  of India Rules, 1939, which  read  :  "Any police officer........ may arrest without warrant any person whom he reasonably suspects of having acted........ (a) in a manner prejudicial to the public safety or to the  efficient prosecution  of the war."’ The Judicial Committee held  that the  burden  was  upon the police officer to  prove  to  the satisfaction   of  a  court  before  whom  the  arrest   was challenged  that he had reasonable grounds of suspicion  and that if he failed to discharge that burden, an order made by the Provincial Government under sub-rule 4 of r. 129 for the temporary custody of the detenu was invalid.  As the  police officer failed to discharge the onus, the Privy Council held that the High Court was right in ordering the release of the person  from  custody under s. 491 of the Code  of  Criminal Procedure.   This shows that when a person is detained by  a police   officer,  the  burden  of  establishing  that   the detention is valid is on him. These  authorities  well establish that s. 491 of  the  Code does  not  contemplate  any right to move  a  court  by  any affected party, but the court can exercise the (1)  I.L.R. (1949).  II E.P. 28, 54. (2)  (1946) L.R. 73 I.A. 144. 864 statutory  power  whenever  it thinks fit, if  the  fact  of illegal detention of a person is brought to its notice. The  problem  may be approached from  a  slightly  different

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 49  

perspective.  Three questions may be posed, namely, (1)  has any person the right to move the High Court under s. 491  of the  Code to enforce his fundamental right? (2) would it  be necessary  for a person detained or any other on his  behalf to  allege that the detenu has a fundamental right and  that it has been infringed by State action and seek a relief  for enforcement of that right? (3) would it be obligatory on the Court  to  enforce  the right if the  said  right  had  been established?   All  the questions must be  answered  in  the negative.  Under s. 491 of the Code there is neither a right in  the  person  detained to move the  High  Court  for  the enforcement  of  the  fundamental  right  nor  there  is  an obligation  on the part of the High Court to give  the  said relief.   It is only a discretionary jurisdiction  conceived as a check on arbitrary action. There  is another aspect of the question.  Article  359  has nothing to do with statutory powers conferred by Parliament. Article 359 expressly deals with the constitutional right to move  a  court and the constitutional  enforcement  of  that right.   So far as ordinary laws are  concerned,  Parliament can always amend the law, having regard to the circumstances obtaining  at  a particular point of time  ;  for  instance, Parliament  could  have  amended  s.  491  of  the  Code  by repealing  that section altogether or by  suitably  amending it.  Briefly stated, Art. 359 provides for the suspension of some   constitutional  rights  in  the   manner   prescribed thereunder.  The statutory rights are left to be dealt  with by  the  appropriate Legislature in exercise of  the  powers conferred  on them.  The argument that the intention of  the makers  of  the Constitution in enacting Art. 359  would  be defeated,  if  s.  491 of the Code was  salvaged,  does  not appeal to me.  If Parliament had amended s. 491 of the Code, which  it  should have done if it intended to  do  so,  this alleged anomaly pointed outby   the   learned    Attorney General could not have arisen. I would, therefore,  hold that the expression "rightto  move  any  Court  for  the enforcement  of  such of the rights conferred by  Part  III" could legitimately refer 865 only  to the right to move under Art. 32 or Art. 226 of  the Constitution  for the said specific relief and could not  be applied  without doing violence to the language used to  the exercise of the statutory power conferred on the High Courts under  s.  491 of the Code.  If that be so,  the  expression "all proceedings pending in any Court for the enforcement of the  rights" used in the second limb of Art. 359  must  also necessarily  refer to proceedings -initiated in exercise  of the  right  to  move  envisaged in the  first  limb  of  the article. I  shall  now proceed to consider some of the  minor  points raised  at the Bar.  Another argument advanced on behalf  of the  respondents  may also be briefly noticed.  It  is  said that  while Art. 358 maintains the legislative  incompetency to make laws in derogation of fundamental rights other  than those  enshrined in Art. 19, Art, 359 enables the  President by  an  indirect  process to enlarge  the  said  legislative competency  and, therefore, Art. 359 must be so read  as  to confine  its scope only to executive acts.  I cannot  agree. Article  359  does  not ex  facie  enlarge  the  legislative competency  of Parliament or a State Legislature.   It  does not  enable them to make laws during the period  covered  by the order of the President infringing the fundamental rights mentioned therein.  It does not empower the Legislatures  to make  void laws ; it only enables the President  to  suspend the  right to move the Court during the period indicated  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 47 of 49  

his order.  Once that period expires, the affected party can move the Court in the manner prescribed by the Constitution. Despite  Art. 358 it may happen that void laws are made  and executive actions are taken inadvertently or otherwise ; and Art.  359 is really intended to put off the  enforcement  of the rights of the people affected by those laws and  actions till the expiry of the President’s order.  The invalidity of the  argument  would be clear if it was borne in  mind  that Art.  358 also saved executive acts infringing Art. 19,  but nonetheless Art. 359 gave protection against the exercise of the  right  to move any court in respect of  such  acts  not saved  by  Art.  358.  If the  infringement  of  fundamental rights  by executive action not saved by Art. 358 could  not be  a basis for the exercise of a right to move  during  the period of suspension, 866 by  the  same token, laws not saved by Art.  358  could  not equally  be  the basis for such an action during  the  said. period.   Be  it as it may, the phraseology of Art.  359  is wide  enough  to comprehend laws made in  violation  of  the specified fundamental rights. Another argument advanced is, while Art. 358 read with  Art. 13(1)  and (2), maintained the constitutional position  that all  laws  infringing  fundamental rights  other  than  that enshrined in Art. 19 would be void during the emergency, the President by issuing the order he did, indirectly, in effect and substance, validated the laws infringing Arts.14, 21 and 22,  and, therefore, the issuing of the said order  must  be held  to  be a fraud on hi s powers.  This argument  has  no merits.  It is based upon a misapprehension of the  doctrine of  fraud on powers.  In the context of the  application  of the  doctrine  to a statutory law, this  Court  observed  in Gullapally  Nageswara Rao v. Andhra Pradesh  Road  Transport Corporation(1) thus : "The  legislature can only make laws within its  legislative competence.   Its legislative field may be circumscribed  by specific  legislative  entries  or  limited  by  fundamental rights created by the Constitution.  The legislature can not overstep   the   field  of  its  competency,   directly   or indirectly.  The Court will scrutinize the law to  ascertain whether  the  legislature  by device purports to make a  law               which, though in form appears to be within its               sphere,  in  effect  and  substance,   reaches               beyond  it.  If, in fact it has power to  make               the  law,  its motives in making the  law  are               irrelevant." To the same effect are the observations in Gajapati  Narayan Deo  v.  The State of Orissa(2).  On the same  analogy,  the President  cannot overstep the limits of his  power  defined under Art. 359 of the Constitution.  So long as he does  not exceed his power, the effect of his order made within bounds could  not conceivably sustain the plea of fraud on  powers. Fraud  on  power  implies  that a  power  not  conferred  is exercised  under the cloak of a power conferred.  But if  an act  can legitimately be referred to a power  conferred  the intention of the person exercising (1) [1959] Supp. 1 S.C.R.  319, 329. (2 ) [1954] S.C.R. 1. 867 the power or the effect of his exercise of the power is  ir- relevant.   Now,  on the construction placed by me  on  Art. 359, the President has clearly the constitutional power’  to suspend  the aforesaid right.  The fact that  Parliament  by taking shelter under that order may enforce void laws cannot make  a  valid exercise of a power of the President  one  in fraud of his power.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 48 of 49  

The next argument is that the order issued by the  President is  in excess of the powers conferred under Art. 359 of  the Constitution.   Under Art. 359, the argument  proceeds,  the order  made by the President can relate to a period  or  the whole  or  a part of the territory of India  and  cannot  be confined to a class of persons.  As the order is  restricted to  persons that have. been deprived of their  rights  under the  Defence of India Ordinance, it is said that it  is  not sanctioned  by  the provisions of Art. 359.   There  are  no merits  in  this contention.  Under the order the  right  to move for the enforcement of the rights mentioned therein  is suspended  during the period of emergency and it applies  to the  entire  country.  The fact that only persons,  who  are deprived  of  their  rights  under  the  Defence  of   India Ordinance,  cannot  exercise their right to move  the  Court does not make the order one confined to a class of  persons. The  Ordinance has force throughout India and ex  hypothesis only  persons affected would move the Court.  That does  not mean that the order is confined only to a class of persons. The  next  contention is that the impugned  section  suffers from  the vice of excessive delegation and that in any  view the  relevant  rules  framed  are in  excess  of  the  power conferred  upon  the Government by the said Act.   I  cannot agree with either of the two contentions.  On this aspect  I have nothing more to add to that found in the judgment of my learned brother. But  the order made by the President still leaves  the  door open for deciding some, questions even under Art. 32 or Art. 226  of the Constitution.  The order is a conditional  one., In  effect it says that the right remains suspended if  such person has been deprived of any such right under the Defence of  India Ordinance, 1962, or under any rule or  order  made thereunder.   The condition is that the person  should  have been deprived of a right under the 868 Defence  of India Ordinance or under any rule or order  made thereunder.   If a person was deprived of such a  right  not under the Ordinance or a rule or order made thereunder,  his right  would  not be suspended.  If the order  was  made  in excess  of  the power conferred upon the Government  by  the said  Ordinance, it would not be covered by that order.   If the detention was made mala fide, it would equally be not an order made under the Ordinance. My  view  on the basis of the aforesaid  discussion  may  be stated thus : (1) The detenus cannot exercise their right to enforce  their fundamental rights under Arts. 21, 22 and  14 of  the Constitution, during the period for which  the  said right was suspended by the President’s order. (2) This  does not  preclude  the  High Court to  release  the  detenus  in exercise  of its power under s. 491 of the Code of  Criminal Procedure, if they were imprisoned under a void law,  though the  voidness of the law arose out of infringement of  their fundamental  rights  under  Arts.  14,  21  and  22  of  the Constitution.  (3) The President’s order does not  preclude, even under Art. 32(1) and Art. 226 of the Constitution,  the petitioners  from proving that the orders of detention  were not  made  under the Defence of India Ordinance or  the  Act either because they were made, (i) outside the provisions of the  Ordinance  of the Act, or (ii) in excess of  the  power conferred under them, or (iii) the detention were made  mala fide or due to a fraudulent exercise of power. I  would close with a few observations.  In the view I  have taken.  there are three courses open to Parliament :  either it  can make a valid law without infringing the  fundamental rights other than those enshrined in Art. 19 or amend s. 491

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 49 of 49  

of  the  Code in order to maintain the enforcement  of  void laws,  or  do both.  It is not for me to suggest  the  right course. In the result, the petitions will now go to the Constitution Bench for disposal on the said questions.                        ORDER BY COURT In   accordance  with  the  opinion  of  the  majority   the constitutional  points raised in the Appeals are  dismissed. Appeals  to be set down individually before  a  Constitution Bench for dealing with the other contentions raised in  each one of them. 869