MAKHAN SINGH v. STATE OF PUNJAB

Citation: [1964] 4 S.C.R. 797; 1963 INSC 188

Court: Supreme Court of India

Bench: P.B. GAJENDRAGADKAR , A.K. SARKAR, K. SUBBA RAO, K.N. WANCHOO, M. HIDAYATULLAH, K.C. DAS GUPTA, J.C. SHAH

Judgment date: 1963-09-02

Case summary

1963 INSC 188. Supreme Court of India judgment dated 1963-09-02. MAKHAN SINGH v. STATE OF PUNJAB. Read the judgment and case details on LawSphereX.

Judgment text

MAK. HAN SINGH fl. STATE OF PUNJAB (AND CONNECTED APPEALS) 1'63 (P. B. GAJENDRAGADKAR, A. K. SARKAR, K. SuBBA RAo, K. N. WANCHOO, M. HIDAYATULLAH, K. c. DAS GUPTA AND J. c. SHAH, JJ. ) Constitution of India, 1950, Arts. 352 and 359-Proclamation of emergency-President's order restricting enforc:ment of fundamental ·rights-Detention under Defence of India Act (Ll of 1962) and Defence of India Rules-Application for release . under s. 491, Code of Criminal Procedure (Act V of 1898)-Mazntazn. ability. The appellants were detained under r. 30(1) 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 Prooedure and their case was that ss. 3(2)(15)(i) and 40 of the Defence of India Act, 1%2, and r.

30(l)(b) of the Defence of India Rules, which were continued under the Act, were unconstimtional 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( I) 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 scope and effect of the Presidential Order i<sucd 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. ~. 1464 . -In exercise of the powers conferred by cl.

(I) 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 Coi:istitution shall re:inain suspended for the period during which. the Proclamation of Emergency issued under clause (I) 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 th~ Order Art. 14 was incorporated into it. , . Held: (per Gajcndragadkar, Sarkar, Wanchoo, Hidayatullah, Das Gupta and Shah, Jj. ) that the proceedings taken by the appellants in the High Courts under s. 491 ( l) (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 t\VO inter-pretations 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, fl9431 F. C. R. 49, Nakkuda Ali v. M. F. De S. /ayaratne, [1951] A. C. 66 and King Emperor v. Vimalabai Deshpande, L. R. 73 I. A. 144, considered. The words 'any court' in Art. 359(1), construed in their plain grarmnatical meaning, n1ust mean any court of competent jurisdiction including the Supreme Court and the High Courts before 'vhich the rights specified in the Presidential Order can be enforced.

It was not correct to say that the use of the words was neces· saty so :ls 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 A:rt. 226( l) was discretionary. In judging whether a particular proceeding fell within the purview of the Presidential Order the determining factor was not its forn1 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(1) or 226(1) of the Constitution. The right to move the court for writ of habeas corpus Under s. 49l(l)(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 1. L. R. 54 Cal.

727, District Magistrate, Trivandrum v. K. C. Mammen Map· pillai, l. 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 by which a citizeri could enforce his right of personal freedom were (i) by a writ under Art. 226(1) or Art. 32(1), or (ii) under s. 49l(l)(b) of the Cocle 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. 49l(l)(b) suo motu could make no 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 hecessarily suspend the Court's jurisdiction accordingly. The right to challenge a detention order under s.

49l(l)(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( l) and the Presidential Order must, therefore, apply. The expression "right to move any court" in Art. 359( l) 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 otherwise 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. 49l(l)(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 broadly 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 Att could not also be challenged on that ground. In re The Delhi Laws Act, 1912 etc. [1951] S. C. R. 747, Harishankar Bag/a 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. The impugned Act could not also be struck do,vn 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 provid~ ed 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 proceeding 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. 49l(l)(b) of the Code as also of Arts. 226(1) and 32(1) 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 dem&-cratic 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 fahn Anderson, [1942] 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 Supre~e Court and the High <;:ourt. The Punjab and the Bombay High Courts were, therefore, right in their decision that the applications under s. 491(1)(b). of. the Code were incompetent in so far as they sought to challenge the validiry 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( l) (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. LR. 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 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, tho 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 . imbiguity 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 he given a strained construction to meet a passing phase such as the present emergency. Rex v. Halliday, L. R. [1917] A. C. 260, Liversidge v. Sir fohn Andmon, L. R. [1942] A. C. 206, Nakkuda Ali v. fayaratna, L. R. [1951] A. C.

66, Gibbon v. Ogdm, (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. &ction 491 is continued by Art. 372 and Art. 225 preserves 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 ~son 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 are 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) l. L. R. 28 Lahore 274, Romji Lal v. The Crown, I. L. R. (1949) II E. P. 28, King-Emperor v. 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 III" 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 dete~us 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 oven wider Arts. 32(1) and 226 that the detentions were not made 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. CRIMINAL APPELLATE JuRJSDICTION : 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. Patwar-dhan, 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. Pai, Ganpat Rai, D. N. Mukherjee, A. N. Sinha, Udayaratnam, K. V. Raghnatha Reddy, /anardhan Sharma, K. R. Choudhury, B. P. Mahe-shwari, /. B. Goyal, A. K. Nag, Y. Kumar, Hardev Singh, M. I. Khowaja, S. S. Shukla, K. K. Jain, Bishambar Lal Khanna, S. Murthi, P. K. Chakravarti, P. K. Chatterjee, A. George Pudussary, Girish Chandra Mathur, Udai Pratap 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. fayaram, R. Ganapathy Iyer, Thyaga-rajan, 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, M:uihan Bhaittia, Ajit Singh Banis and Brij "&ij Kishore, f. B. Dadachanji, 0. 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, f. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant (in Cr. A. No. 65 of 1%3). N. C. Chatterjee, and fanardan Sharma, for the ap~l lant (in Cr. A. No. 109 of 1963). K. T. Sule, fitendra Sharma and fanardan Sharma, for the appellants (in Cr. A. Nos. lll and ll4 to 126 of 1%3) 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 lll and 114 to 126/1%3). C. K. Daphtary, Attorney-General, H. N. Sanyal, Soli-citor-General, S. V. Gupte, Additional Solicitor-General, R. N. Sachthey and R. H. Dhebar, for intervener No. 1 N aunit 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. V. Rangam, for intcr-verner 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, K. C. Das Gupta and J. C. Shah, JJ. was delivered by P. B. Gajendragadkar, J. K. Subba Rao, J. delivered a dissenting Opinion. GAJENDRAGADKAR, J.

-This group of 26 crnru-nal appeals has been placed for hearing and disposal before a special Constitutional Bench, because the appeals consti-tuting 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(l)(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 thats.

3(2)(15)(i) ands. 40 of the Defence of India Act, 1962 (No. 51 of 1962) (hereinafter called 'the Act') and Rule 30(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. Mean-while, when similar petitions were made before the Alla-' habad High Court in Criminal Cases Nos. 1618, 1759 and 1872 of 1963 Sher Singh Negi v. District Magistrate, Kan-pur & 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, 1%2, the Chinese aggressively attacked the northern borde. r of India and that constituted a threat to the security of India. That is why on the 26th October, 1962, the President· issued a Proclamation 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 substi-tuted. 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 1%2.

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 iH 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 that effect. Articles 353 to 360 which occur in this Part thm constitute emergency provisions. The learned 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 Attomey- General has relied on two decisions of the House of Lords. In The King (At the Prosecution of Arthur Zadig) v. Halliday,(') 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 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 had selected another way 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 ~onstruing 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 Lit1er-sidge v. Sir fohn Anderson(') 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. ( ) [1942] A. C. 206. 4 S. C. R. SUPREME· COURT REPORTS 809 Viscount Maugham in rejecting the argument of the detenu that the liberty of the subject was involved and that the legislation dealing with the liberty of the subiect 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. Halhday(1). Lord Macmillan who took the "1me view observed that it is right so to interpret emergency legislation as to prO' mote rather than to defeat its efficacv for the defence of the realm. That is in accordance :. Vith 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. T. • in Keshav Talpade v. 2 The King Emperor( ). 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(') 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 may be 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 ( ) [1917] A. C. 260, 278. (3) (1943) F. C. R. 49, 63. ( ) [1942] A. C. 206. • ~2-2 S. C. lndia/64 the subject and any attempted encroachments on his liberty 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 an 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. fayaratne('), and King-Emperor v. Vimalabai Deshpande('). 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 deci; sion is an authority for the proposition that the words "if; A. B. has reasonable cause to believe" are capable of mean-. ing "if A. B.

honestly thinks that he has reasonable cause to believe" and that in the context and attendant circum· stances of Defence Regulation 18B they did in fact mean just that. In distinguishing the said decision, Lord Rad~ cliffe 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 majo- 3 rity d~cision of the House of Lords in Liversidge( ) 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, accordirig to him, the construction for which he c011tended was the only reasonable construction of Art. 359. 1 2 ( ) [1951] A. C. 66, 76. ( ) 73 I. A. 144. ( ) J. 1942] A. C. 206. - - , ', '. ' . In our opinion, it is unne~essaty to dcadc 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 pre- Sently point out, after hearing counsel on both 5ides, we have reached the conclusion that Art. 359 is reasonably capable of only one construction and that is the •construe• tion 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. 35S and 3~9 (I) & (2). The said two Articles read as under:- · - "358.

While a Proclamation of Emergency is in opera~ tion, nothing in article 19 shall restrict the power oL 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 that 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, except as respects things done or omitted to be done before . the . law so - ceases to have effect. · 359. (I) Where a Proclamation of Emergency 1s _m operation, the President may by order declare that the right to move any Coun for the enforcement _of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending iii any court for the enforcement of the rights s0 -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.

·r ·'";--,;,~ -- ~ - ·' -. ·-- ''"< . . .. .. - ·' . - - . ' -- . . - ' (2) Any order . made as aforsesaid may ·extend to the ·--\\1 whole or any part of the territory of India. " Singh 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 suspendea and the power of the legislatures as well as the executive 'is to that extent made wider. Gajendr11- The -suspension' of Ari. 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 there- .. ,. -after. 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 :ind 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 ex- _ pressly to suspend any of the fundamental rights. It autho-rises the President to issue an order declaring that the right .

--to move any court for enforcement of such of the rights 1 in Part III as may be mentioned in the order and all proceedings pending in any ci>un 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 enforce- -ment of the specified rights. The rights are not expressly suspend~d, but the citizen is deprived of his right to move any court for their enforcement. That· is one important '' 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 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 are, in theory, alive and it is on that assumption that we will deal with the other points raised ill 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 dther 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 . pcndency of the Presidential Order. If at the expiration ·of the Presidential Order, Parliament passes any legislaticin to protect executive action taken during the pendency of ' the Presidential Order and afford indemriity to the execu- ; tiu in that behalf, the validity ·and the effect . oli such !

egis-da~ 'action l)lay have to be' cl! tdlJlly scrutinisei. L· ' 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 whicl:i 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 falling 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 mora-torium 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 States. On the other hand, the Order issued under Art.

359(1) may extend to ~he 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 :is 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 dause in Art. 359(1), one seems to hear the echo of the right which has been constitutionally 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 flow-ing 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 court". 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 in-voke 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 on whom the Supreme Court's 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 SUPREME COURT REP-ORTS [1964] 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, on a plain construction of the relevant clauses of Art. 32, it is impos-sible 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 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) i~ jilstified 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 ·piairi 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). Iri 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· daimed by the petitioner; but the discretion conferred ori the High Courts in that behalf' has to be judicially exer• dsed, and having regard to the sclleme 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•<>n the High Courts m fSsue the· specified. writs, or «otfih appropriate orders ot <lltections;,. having regard to the tiiiure of the 'said p'Owe~, 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 m accordance with principles which are well-settled in that behalf.

The High Courts cannot capriciously or unreasonably refuse to entertain the said applications and to deal with them on the merits on the sole ground that the exercise of their jurisdiction under Art. 226 (I) 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. 35. 9(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 Ill as may be mentioned in the order. If a citizen moves any court to obtain 11 relief '. ln the ground that his fundamental rights specified in the Order have been contravened, that proceeding is barred. In deter- .

mining 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 ts 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 Jun~amental 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 of Art. 359(1) and the Presidential Order issued under it is thus wide enough to include al! claims made by . citizens in any court of competent jurisdiction when it .

fs show~ that the said claims cannot be effectively adjudi- ·cated upon without examining the question as to whether . the citizen is in substance, seeking to enforce any of the 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 v~ry 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 m 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('), where the learned C. J. ~onsidered 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 ( ) l. L. R. 54 Cal. 727. \ , 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 Mappitz. ai('), 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(') 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('). Basing 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 tci 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- ( ) l. L. R. 1939 Mad.

708. (2) 66 I. A. 222. ( ) l. L. R. 5~ Cal. 727. (') 72 I. A. 241. fined only to proceedings taken for enforcement of constitutional rights and if it was intended that the proceeding> under s. 491(1)(b) should also be prohibited, it was essential 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 (I) (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, ih 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 easy to accede to the argument that the said part of the statutory right recognised by s,49l(l)(b) retains its distinc$vq ai;u:I ·lndepen~elJt character. even' . after 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'· 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· remedv 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(l)(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 undet s. 49! (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 !. '491(l)(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 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 proceedings 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 rights is to suspend the jurisdiction of the Court pro Panto 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 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 deter-mined 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 <:alled 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 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 ac-crued 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 0£ proceedings taken by the detenu for enforcing these rights; that is why the argument that Art. 359(1) and the Presidential Order issued under it do not apply to the proceedings under s. 491 ( 1) (b) cannot be sustained. The prohibition contained m the said Article and the Presidential Order will apply as much to proceedings under s. 49l(l)(b) as to those under Art. 226(1) & Art. 32(1).

In this connection, it is hardly necessary to emp-hasise 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 deci-sive 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 mav indeed succeed if it purports to be made under s. 491 (I) (b ). Indeed, this argument seems to suggest that when die 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 Presidentiat 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 J\ct 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 m form may have been taken under s. 491(1)(b) of the Code. In our opi- .. nion, therefore, once it is shown that the proceedings und ~r 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('), 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 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 pre-sented 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 conse-quences.

Therefore, our conclusion is that the proceedings (') [1964] 3. S. C. Jl.. 44". 53-2 SC India, 6~ • taken on behalf of the appellants before the respective High Courts challenging their detention on the ground that the impugned Act and the Rules are void because they contravene Arts. 14, 21 and 22, are incompetent for the reason that the fundamental rights which are alleged to have been contravened are specified m the Presidential Order and all citizens are precluded from moving any Court for the enforcement of the said specified rights. The next question to consider is the validity of the 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 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. " We have already stated that this Order was subse-quently 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 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 • citizens and in respect of any of the rights conferred by Part III.

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 1%2 was promulgated 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 ori 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. Vve 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 A! ts. 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-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 preventing 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 cas~(') 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. 49l(l)(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 issued under it is the right for the enforcement of snch 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 tl1e 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 ( ) [1964] 3. S. C. R. 442. 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 detention 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. V.

/e 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 Presidential 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 thats. 3(2)(15)(i) as well ass. 40 of the Act are invalid, because they confer on the rule making authority power which is often described as excessive delegation.

It is, therefore, necessary to consider this point. The Act which 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. Section 3( I) reads thus: "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 generality 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 sub-clauses 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 manner prejudicial to the defence of India and civil defence, the security of the State, th

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