MANU/SC/0062/1976

Equivalent Citation: AIR1976 SC 1207 , 1976 CriLJ945 , (1976 )2 SCC521 , [1976 ]SuppSCR172 , 1976 (8 )UJ610

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 279, 355, 356, 380, 389, 1845-1849 and 1926 of
1975 and 3, 41 and 46 of 1976

Decided On: 28.04.1976

Appellants:Additional District Magistrate, Jabalpur

Vs.
Respondent:Shivakant Shukla

Hon'ble Judges/Coram:
A.N. Ray, C.J., H.R. Khanna, M. Hameedullah Beg, P.N. Bhagwati and Y.V.
Chandrachud, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: M.C. Nihalani, Ram Panjwani, S.N. Kakkar,
Niren De and V.P. Raman, Advs.

For Respondents/Defendant: Shanti Bhushan, Soli J. Sorabjee, G.C.

Dwivedi, S.S. Khanduja, Rama Jois and N.M. Ghatate, Advs.

Case Note:

Constitution - detention - Section 16A of Maintenance of Internal

Security Act, 1971 and Article 359 of Constitution of India - detenue
questioned validity of Section 16A (9) - in view of Presidential Order
under Article 359 (1) no person had locus standi to move writ
petition under Article 226 to enforce any right to personal liberty of
person detained under Act of 1971 on ground that detention in
question is not under or in compliance with Act of 1971 or illegal or
mala fide - held, Section 16A (9) valid - not open to detenue or to
Court to ask for grounds of detention.

JUDGMENT

A.N. Ray, C.J.

25-06-2021 (Page 1 of 305) www.manupatra.com SOAS Library Library

1. These appeals are by certificates in some cases and by leave in other
cases. The State is the appellant. The respondents were petitioners in the
High Courts.

2. The respondents filed applications in different High Courts for the issue of
writ of habeas corpus. They challenged in some cases the validity of the
38th and the 39th Constitution Amendment Acts, the Proclamation of
emergency by the President under Article 352 of the Constitution made on
25 June, 1975. They challenged the legality and validity of the orders of
their detention in all the cases.

3. The State raised a preliminary objection that the Presidential Order dated
27 June, 1975 made under Article 359 of the Constitution suspending the
detenus right to enforce any 01 the rights conferred by Articles 14, 21 and
22 of the Constitution and the continuance of emergency during which by
virtue of Article 358 all rights conferred by Article 19 stand suspended are a
bar at the threshold for the respondents to invoke the jurisdiction of the
High Court under Article 226 of the Constitution and to ask for writs of
habeas corpus.

4. The judgments are of the High Courts of Allahabad, Bombay (Nagpur

Bench), Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan.

5. The High Courts held that notwithstanding the continuance of emergency

and the Presidential Order suspending the enforcement of fundamental
rights conferred by Articles 14, 21 and 22 the High Courts can examine
whether an order of detention is in accordance with the provisions of the
Maintenance of Internal Security Act (hereinafter referred to as the Act),
which constitute the conditions precedent to the exercise of powers
thereunder excepting those provisions of the Act which are merely
procedural or whether the order was made malafide or was made on the
basis of relevant materials by which the detaining authority could have been
satisfied that the order was necessary: The High Courts also held that in
spite of suspension of enforcement of fundamental rights conferred by
Articles 21 and 22 of the Constitution a person's right to freedom from
arrest or detention except in accordance with law can be enforced only
where such arrest and detention are not in accordance with those provisions
of the statute which form the conditions precedent to the exercise of power
under that statute as distinguished from merely procedural provisions or are
malafide or are not based on relevant materials by which the detaining
authority could have been satisfied that the order of detention was
necessary.

25-06-2021 (Page 2 of 305) www.manupatra.com SOAS Library Library

6. The High Courts held that the High Courts could not go into the questions
whether the Proclamation of emergency was justified or whether the
continuance thereof was malafide.

7. The High Courts did not decide about the validity of the 38th and the
39th Constitution Amendment Acts. The 38th Constitution Amendment Act
amended Articles 123, 213, 239(b), 352, 356, 359 and 360. Broadly stated,
the 38th Constitution Amendment Act renders the satisfaction of the
President or the Governor in the relevant Articles final and conclusive and to
be beyond any question in any Court on any ground. As for Article 359
Clause (1A) has been inserted by the 38th Constitution Amendment Act. The
39th Constitution Amendment Act amended Articles 71, 329, 329A and
added Entries after Entry 86 in the Ninth Schedule.

8. No arguments were advanced on these Constitution Amendment Acts and

nothing thereon falls for determination in these appeals.

9. It is appropriate to mention here that on 3 December, 1971 in exercise of

powers conferred by Clause (1) of Article 352 of the Constitution the
President by Proclamation declared that a grave emergency exists whereby
the security of India is threatened by external aggression.

10. On 25 June, 1975 the President in exercise of powers conferred by

Clause (1) of Article 352 of the Constitution declared that a grave
emergency exists whereby the security of India is threatened by internal
disturbances.

11. On 27 June, 1975 in exercise of powers conferred by Clause (1) of

Article 359 the President declared that the right of any person including a
foreigner to move any Court for the enforcement of the rights conferred by
Article 14, Article 21 and Article 22 of the Constitution and all proceedings
pending in any Court for the enforcement of the above-mentioned rights
shall remain suspended for the period during, which the Proclamations of
emergency made under Clause (1) of Article 352 of the Constitution on 3
December, 1971 and on 25 June, 1975 are both in force. The Presidential
Order of 27 June, 1975 further stated that the same shall be in addition to
and not in derogation of any Order made before the date of the aforesaid
Order under Clause (1) of Article 359 of the Constitution.

12. It should be noted here that on 8 January, 1976 there was a notification
that in exercise of powers conferred by Clause (1) of Article 359 of the
Constitution the President declares that the right of any person to move any
Court for the enforcement of the rights conferred by Article 19 of the

25-06-2021 (Page 3 of 305) www.manupatra.com SOAS Library Library

Constitution and all proceedings pending in any Court for the enforcement of
the above-mentioned rights shall remain-suspended for the period during
which the Proclamation of emergency made under Clause (1) of Article 352
of the Constitution on 3 December, 1971 and on 25 June, 1975 are in force.

13. The questions which fall for consideration are two . First, whether in
view of the Presidential Orders dated 27 June, 1975 and 8 January, 1976
under Clause (1) of Article 359 of the Constitution any writ petition under
Article 226 before a High Court for habeas corpus to enforce the right to
personal liberty of a person detained under the Act on the ground that the
order of detention or the continued detention is for any reason not under or
in compliance with the Act is maintainable. Second, if such a petition is
maintainable what is the scope or extent of judicial scrutiny particularly in
view of the Presidential Order dated 27 June, 1975 mentioning, inter alia,
Article 22 of the Constitution and also in view of Sub-section (9) of Section
16A of the Act.

14. The Attorney General contended that the object and purpose of
emergency provisions is that the Constitution provides special powers to the
Executive because at such tunes of emergency the considerations of State
assume importance. It has been recognised that times of grave national
emergency demand grant of special power to the Executive. Emergency
provisions contained in Part XVIII including Articles 358,, 359(1) and
359(1A) are constitutional imperatives. The validity of law cannot be
challenged on the ground of infringing a fundamental right mentioned in the
Presidential Order under Article 359(1). Similarly, if the Executive took any
action depriving a person of a fundamental right mentioned in the
Presidential Order by not complying with the law such Executive action could
not be challenged because such challenge would amount in substance to
and would directly impinge on the enforcement of fundamental rights
mentioned in the Presidential Order. The reason given by the Attorney
General behind the principle is that in times of emergency the Executive
safeguards the life of the nation. Challenge to Executive actions either on
the ground that these are arbitrary or unlawful has been negatived in
England in Liversidge v. Anderson [1942] A. C. 206 and Greene v. Secretary
of State for Home Affairs [1942] A. C. 284 and also by this Court in Sree
Mohan Chowdhury v. The Chief Commissioner, Union Territory of Tripura
MANU/SC/0035/1963 : 1964CriLJ132 and Makhan Singh v. State of Punjab
MANU/SC/0039/1963 : 1964CriLJ217 .

15. The contentions of the respondents are as follows : The arguments on

behalf of the State mean that during the emergency there is no right to life

25-06-2021 (Page 4 of 305) www.manupatra.com SOAS Library Library

or liberty. Article 358 is more extensive as the fundamental right itself is
suspended. The Presidential Order under Article 359(1) does not suspend
any fundamental right.

Second, the object of Article 359(1) is to bar moving the Supreme Court
under Article 32 for the enforcement of certain specified rights without
affecting in any manner the enforcement of common law and statutory
rights to personal liberty under Article 226 before the High Court.

Third, Article 359(1) removes the fetter in Part III but does not remove the
fetters arising from the principles of limited power of the Executive under
the system of checks and balances based on separation of powers.

Fourth, while the Presidential Order operates Only in respect of fundamental

rights mentioned in the Presidential Order it would not affect the rights of
personal liberty at common law or under statute law or under natural law.

Fifth, Article 359(1) is not to protect illegal orders of the Executive. The
Executive cannot flout the command of Parliament relying on a Presidential
Order under Article 359(1). The suspension of fundamental right or of its
enforcement cannot increase the power of the -Executive vis-a-vis the
individual.

Sixth, there is no reason to equate the State with the Executive. The
suspension of the fundamental right or the right to enforce it has only this
consequence that it enables the Legislature to make laws violative of the
suspended fundamental rights and the Executive to implement such laws.
The suspension of the fundamental right does not enable the Executive to
flout legislative mandates and judicial decisions.

Seventh, the Executive can act to the prejudice of citizens only to the extent
permitted by valid laws. The Proclamation of emergency does not widen the
Executive power of the State under Article 162 so as to empower the State
to take any Executive action which it is not otherwise competent to take.

Eighth, the right to arrest is conferred by the Act on the States and their
officers only if the conditions laid down under Section 3 of the Act are
fulfilled. therefore, if the conditions laid down under Section 3 of the Act are
not complied with by the detaining authority then the order of detention
would be ultra vires the said Act.

Ninth, Habeas corpus is a remedy not only for the enforcement of the right
to personal liberty, whether under natural law or a statute, but is also a

25-06-2021 (Page 5 of 305) www.manupatra.com SOAS Library Library

remedy for the enforcement of the principle of ultra vires, viz., when the
detaining authority has failed to comply with the conditions laid down in
section 3 of the Act. In such a case the High Court has jurisdiction to issue a
writ of habeas corpus for the enforcement of the principle of ultra vires.

16. In England it was the practice in tunes of danger to the State to pass
what were popularly known as Habeas Corpus Suspension Acts. Suspension
did not legalise illegal arrest; it merely suspended a particular remedy in
respect of particular offences. Accordingly it was the practice in England at
the close of the period of suspension to pass an Indemnity Act in order to
protect official- concerned from the consequences of any incidental illegal
acts which they might have committed under cover of the suspension of the
prerogative writ.

17. In England the Defence of the Realm Acts 1914-18 empowered the
Executive to make regulations by Order in Council for securing the public
safety or for the defence of 'the realm. In The King v. Holiday Ex parte Zadiq
[1917] A.C. 260 the House of Lords held that a regulation was valid which
authorised the Secretary of State to detain a British subject on the grounds
of ins hostile origin or association. It was contended on behalf of Zadiq that
there was no provision for imprisonment without trial. The substantial
contention was that general words in a statute could not take away the
vested right of a subject or alter the fundamental law of the Constitution
because it would be repugnant to the constitutional tradition of the country.
The majority of the court swept aside these arguments and held that on the
construction of the Act the Executive had unrestricted powers.

18. During the Second World War the emergency Powers (Defence) Act,
1939 in England empowered the making of regulations for the detention of
persons by the Secretary of State in the interests of the public safety or the
defence of the realm, and for authority to enter and search any premises.

19. Although access to the courts was not barred during the Second World
War in England the scope for judicial review of executive action was limited.
The courts could not consider whether a particular regulation is necessary or
expedient for the purpose of the Act which authorised it. The question of
necessity or expediency was one for the Government to decide. The court
could, however, hold an act to be illegal as being not authorised by the
regulation relied upon to justify it. .

20. It was open to the subject in England to challenge detention by

application for a writ of habeas corpus, but such application had little chance

25-06-2021 (Page 6 of 305) www.manupatra.com SOAS Library Library

of success in view of the decision of the House of Lords in Liversidge's case
(supra). The House of Lords took the view that the power to detain could
not be controlled by the courts, if only because considerations of security
forbade proof of the evidence upon which detention was ordered. It was
sufficient for the Home Secretary to have a belief which in ins mind was
reasonable. The courts would not enquire into the grounds for ins belief,
although apparently they might examine positive evidence of mala fides or
mistaken identity. In Greene's case (supra) the House of Lords held that a
mistake on the part of the advisory committee in failing, as was required by
the regulation, to give the appellant correct reasons for ins detention did not
invalidate the detention order. It is noticeable how the same House
expressed this view without any dissent.

21. Dicey states that this increase in the power of the Executive is no trifle,
but it falls far short of the process known in some foreign countries as
"suspending the constitutional guarantees" or in France as the "proclamation
of a State of siege". Under the Act of 1881 the Irish executive obtained the
absolute power of arbitrary and preventive arrest, and could without breach
of law detain in prison any person arrested on suspicion for the whole period
for which the Act continued in force. Under the Prevention of Crime (Ireland)
Act, 1882 the Irish Executive was armed with extraordinary powers in the
case of certain crimes to abolish right to trial by jury.

22. The Act of Indemnity in England is a retrospective statute which frees

persons who had broken the law from responsibility for its breach, and thus
make acts lawful which when they were committed were unlawful. A Habeas
Corpus Suspension Act does not free any person from civil or criminal
liability for a violation of the law. The suspension, indeed, of the Habeas
Corpus Act may prevent the person arrested from taking at the moment any
proceeding against the Secretary of State. While the suspension lasts, he
will not be able to get himself discharged from prison. If the prisoner has
been guilty of no legal offence then on the expiration of the Suspension Act
the Secretary of State and ins subordinates are liable to actions or
indictments for their illegal conduct.

23. Dicey stated that the unavowed object of a Habeas Corpus Suspension
Act is to enable the Government to do acts which, though politically
expedient may not be strictly legal. The Parliament which suspends one of
the guarantees for individual freedom must hold that a crisis has arisen
when the rights of individuals must be postponed to considerations of State.
A Suspension Act would in fact, fail of its main object, unless the officials felt
assured that, as long as they bona-fide, and uninfluenced by malice or by

25-06-2021 (Page 7 of 305) www.manupatra.com SOAS Library Library

corrupt motives, carried out the policy of which the Act was visible sign,
they would be protected from penalties for conduct which, though it might
be technically a breach of law, was nothing more than the free exertion for
the public good of that discretionary power which the suspension of Habeas
Corpus Act was intended to confer upon the executive.

24. The position in America is described in Cooley on the General Principles

of Constitutional Law in the U.S.A. Fourth Edition. In America the right to
the Writ of Habeas Corpus is not expressly declared in the Constitution, but
it is recognised in the provision Article 1 in Section 9 Clause (2) that the
privilege of writ of habeas corpus shall not be suspended, unless when in
cases of rebellion or invasion the public safety may require it. In America
the power to suspend the privilege is a legislative power and the President
cannot exercise it except as authorised by law. The suspension does not
legalise what is done while it continues. It merely suspends for the time this
particular remedy. All other remedies for illegal arrests remain, and may be
pursued against the parties making or continuing them.

25. Liberty is confined and controlled by law, whether common law or

statute. It is in the words of Burke a regulated freedom. It is not an abstract
or absolute freedom. The safeguard of liberty is in the good sense of the
people and in the system of representative and responsible government
which has been evolved. If extraordinary powers are given, they are given
because the emergency is extraordinary, and we limited to the period of the
emergency.

26. Unsuitability of a court of law for determining matters of discretionary

policy was referred to by Lord Parker in the Zamora case [1916] 2 A. C. 107
and Lord Finlay in the Zadiq case (supra). In the Liversidge case (supra) it
was held that the court is not merely an inappropriate tribunal, but one the
jurisdiction of which is unworkable and even illusory in these cases. A court
of law could not have before it the information on which the Secretary acts
still less the background of statecraft and national policy what is and what
must determine the action which he takes upon it.

27. The Liversidge case (supra) referred to these observations in the Zadiq
case (supra) "However precious the personal liberty of the subject may be,
there is something for which it may well be, to some extent, sacrificed by
legal enactment, namely, national success in the war or escape from
national plunder or enslavement". Liberty is itself the gift of the law and
may by the law be forfeited or abridged.

25-06-2021 (Page 8 of 305) www.manupatra.com SOAS Library Library

28. There is no record of any life of an individual being taken away either in
our country during emergency or in England or America during emergency
in their countries. It can never be reasonably assumed that such a think will
happen. Some instances from different countries were referred to by some
counsel for the respondents as to what happened there when people were
murdered in gas chambers or people were otherwise murdered. Such
instances are intend to produce a kind of terror and horror and are hortative
in character. People who have faith in themselves and in their country will
not paint pictures of diabolic distortion and mendacious alignment of the
governance of the country. Quite often arguments are heard that extreme
examples are given to test the power. If there is power, extreme examples
will neither add to the power nor rob the same. Extreme examples tend only
to obfuscate reason and reality.

29. The effect of the Suspension of Habeas Corpus Acts and of Indemnity
Acts in England has been to give every man security and confidence in
periods of public danger or apprehension. Rarely, however, has this been
suffered without jealousy, hesitation and remonstrance. Whenever the perils
of the State have been held sufficient to warrant this sacrifice of personal
liberty, no Minister or Magistrate has been suffered to tamper with the law
at ins discretion. Where the Government believes the State to be threatened
by traitorous conspiracies during times of grave emergencies the rights of
individuals of ordinary tunes become subordinate to considerations of the
State.

30. The pre-eminent questions are four. First, is the Presidential Order under
Article 359 a bar at the threshold Second, is Article 21 the sole repository of
right to life and personal liberty Third, is the Presidential Order subject to
the rubric of Rule of Law ? Fourth, is Section 16A(9) of the Act a rule of
evidence ?

31. The first question turns on the depth and content of the Presidential
Order.

The vital distinction between Article 358 and Article 359 is that Article 8
suspends the rights only under Article 19 to the extent that the Legislature
can make laws contravening Article 19 during the operation of a
Proclamation of emergency and the Executive can take action which the
Executive is competent to take under such laws. Article 358 does not
suspend any fundamental right. While a Proclamation of emergency is in
operation the Presidential Order under Article 359(1) can suspend the
enforcement of any or all fundamental rights. Article 359(1) also suspends

25-06-2021 (Page 9 of 305) www.manupatra.com SOAS Library Library

any pending proceedings for the enforcement of such fundamental right or
rights. The purpose and object of Article 359(1) is that the enforcement of
any fundamental right mentioned in the Presidential Order is barred or it
remains suspended during the emergency. Another important distinction
between the two Articles is that Article 358 provides for indemnity whereas
Article 359(1) does not, Article 359(1A) is on the same lines as Article 358
but Article 359(1A) now includes all fundamental rights which may be
mentioned in a Presidential Order and is, therefore, much wider than Article
358 which includes Article 19 only.

32. A person can enforce a fundamental right both in the case of law being
made in violation of that right and also if the Executive acts in non-
compliance with valid laws or acts without the authority of law. It cannot be
said that the scope of Article 359(1) is only to restrict the application of the
Article to the Legislative field and not to the acts of the Executive. The
reason is that any enforcement of the fundamental rights mentioned in the
Presidential Order is barred and any challenge either to law or to any act of
the Executive on the ground that it is not in compliance with the valid law or
without authority of law will amount to enforcement of fundamental rights
and will, therefore, be within the mischief of the Presidential Order. The
effect of the Presidential Order suspending the enforcement of fundamental
right amounts to bar the locus standi of any person to move the court on
the ground of violation of a fundamental right.

33. The Constitution is the mandate. The Constitution is the rule of law.
No one can arise above the rule of law in 'the Constitution. The decisions of
this Court in Mohan Chowdhury's (supra) case, Makhan Singh's (supra) case
and Dr. Ram Manohar Lohia v. State of Bihar and Ors. MANU/SC/0054/1965
: 1966CriLJ608 are that any court means all courts including this Court and
High Courts and the right to initiate legal proceedings. A person can enforce
fundamental rights in this Court under Article 32 as well as in the High
Courts under Article 226. It is idle to suggest that the object of Article
359(1) is that the right to move this Court only is barred and not the right
to move any High Court. Article 26 does not provide a guaranteed
fundamental right like Article 32. This guaranteed right under Article 32
itself may be suspended by a Presidential Order under Article 359(1). In
such a case it could not be said that the object of the makers of the
Constitution is that a person could not move this Court for the enforcement
of fundamental rights mentioned in the Presidential Order but could do so
under Article 226. The bar created by Article 359(1) applies to petitions for
the enforcement of fundamental rights mentioned in the Presidential Order
whether by way of an application under Article 32 or by way of any

25-06-2021 (Page 10 of 305) www.manupatra.com SOAS Library Library

application under Article 226. [See Makhan Singh's case (supra) and Ram
Manohar Lohia's case (supra)].

34. It is incorrect to say that the jurisdiction and powers of this Court under
Article 32 and of the High Courts under Article 226 are virtually abolished by
the Presidential Order without any amendment of the Constitution. No
amendment of the Constitution is necessary because no jurisdiction and
power either of this Court or of the High Court is taken away. When a
Presidential Order teaks away the locus standi of the detenus to move any
court for the enforcement of fundamental rights for the tune being the
jurisdiction and powers of this Court and of the High Courts remain
unaltered Article 359(1) is not directed against any court. It is directed
against an individual and deprives him of ins locus standi.

35. The courts cannot either increase or curtail the freedom of individuals
contrary to the provisions of the Constitution. The courts interpret the
Constitution and the laws in accordance with law and judicial conscience and
not emotion. It is wrong to say that the Executive has asked or directed any
one not to comply with the conditions of the Act. The question is not
whether the Executive should comply or should not comply with the Act but
whether a detenu has a locus standi to move any court for a writ in the
nature of habeas corpus on the ground of non-compliance with the
provisions of the Act.

36. In period of public danger or apprehension the protective law which

gives every man security and confidence in tunes of tranquility, has to give
way to interests of the State. The opinion in England has been that when
danger is imminent, the liberty of the subject is subordinated to the
paramount interests of the State. Ring leaders are seized and outrages
anticipated. Plots are disconcerted, and the dark haunts of conspiracy filled
with distrust and terror (See May--Constitutional History of England, Vol. I,
pp. 130-135).

37. While the courts of law are in normal tunes peculiarly competent to
weigh the competing claims of individuals and government, they are ill
equipped to determine whether a given configuration of events threatens
the life of the community and thus constitutes an emergency. Neither are
they equipped, once an emergency has been recognised particularly a war
emergency or emergency on account of security of the country being
threatened by internal aggression to measure the degree to which the
preservation of the life of the community may require governmental control
of the activities of the individual. Jurists do not have the vital sources of

25-06-2021 (Page 11 of 305) www.manupatra.com SOAS Library Library

information and advice which are available to the executive and the
legislature; nor have they the burden of formulating and administering the
continuing programme of the government, and the-political responsibility of
the people, which, although intangibles, are of crucial importance in
establishing the context within which such decisions must be made.

38. Article 359(1) makes no distinction between the threat to the security of
India by war or external aggression on one hand and threat to the security
of India by internal disturbance on the other. In fact, both situations are
covered by the expression "grave emergency" in Article 352(1). Apart from
Article 359(1) all provisions of the Constitution laying down the
consequences of a Proclamation of emergency under Article 352(1) would
apply to both situations. The consequences of a Proclamation of emergency
under Article 352(1) of our Constitution are much wider than in England or
America.

39. Article 353 provides that the executive power of the Union shall extend
to giving of directions to any State as to manner in which the executive
power thereof is to be exercised. The exercise of such executive power by
the Union totally displaces the provisions of Article 162. Non-compliance
with directions of the Union Executive under Article 353 by any State
Executive may attract the provisions of Article 356 and the President's Rule
may be imposed on that State. In such as event, Parliament may, under
Article 357(f) confer on the President the power of the Legislature of that
State to make laws or to delegate such legislative power to any other
authority. In such a situation, the federal structure and representative
Government on which the Constitution is based, may be completely
chastised in the State or States concerned. Article 250 provides that during
the operation of Proclamation of emergency Parliament may make laws with
respect to any of the matters enumerated in the State List. The Federal
structure and representative government may suffer its full place in that
Situation.

40. On the expiry of the operation of the Presidential Order under Article
359(1), the infringement of the fundamental rights mentioned in the Order,
either by the legislative enactment or by an executive action, may be
challenged in a court of law and 2 after such expiation Parliament passes an
Act of Indemnity, the validity and the effect of such legislation may have to
be scrutinised. [See MakJian Singh's case (supra) at 813].

41. The provisions in our Constitution relating to emergency are of wide

amplitude. The Executive is armed with special powers because individual

25-06-2021 (Page 12 of 305) www.manupatra.com SOAS Library Library

interests are subordinated to State security. If law is invalid vis-a-vis
fundamental rights there cannot be any challenge during the operation of
Articles 358 and 359 on the ground that law violates fundamental rights. It
is contradictory to say that there can yet be challenge to orders under that
law as being not in accordance with law. Article 19 is a prohibition against
law. Article 19 has nothing to do with the Executive. Law under Article 21
can be punitive or preventive. In Article 22 reference is made to grounds
and representation in cases of preventive detention. If enforcement of
Article 22 is suspended one is left with Article 21.

42. The Act in the present case is law. The Executive orders are under that
law. Any allegation that orders are not under that law Will not rob the orders
of the protective umbrella of Article 359. The challenge by a detenu that law
is broken will be enforcement of Article 21 because law contemplated under
Article 21 is substantive as well as procedural law. A law can be broken
either of substantive or procedural parts. Neither enforcement of nor relief
to personal liberty is based on Article 19. No executive action is valid unless
backed by law. In the present cases there is law authorising detention. In
the present cases, the writs questioned the validity of detention. The
Legislature under Article 358 is authorised to act in breach of Article 19. The
executive can act only in terms of that law. If this is pre-emergency law it
has to satisfy Part III of our Constitution. If it is emergency law it can
violate Article 19 because it is protected by Article 358.

43. Under Article 359 the Presidential Orders have been of two types. On 3
November, 1962 in exercise of powers conferred by Clause (1) of Article 359
of the Constitution the President declared that "the right of any person to
move any court for the enforcement of the rights conferred by Article 21 and
Article 22 shall remain suspended for the period during which the
Proclamation of emergency issued under Clause (1) of Article 352 on 26
October, 1962 is in force, if such a person has been deprived of any right
under the Defence of India Ordinance 1962 or of any rule or order made
thereunder". The 1975 Presidential Order under Article 359(1) does not
have the words "if such a person has been deprived of any such right under
the Defence of India Ordinance 1962 or any rule or order made thereunder".
In other words, the 1962 Presidential Order is limited to the condition of
deprivation of rights under the Defence of India Ordinance or any rule or
order made thereunder whereas in the 1975 Presidential Order as statute is
mentioned. The illegality of orders was challenged in Makhan Singh's case
(supra) in spite of the Presidential Order under the 1962 Proclamation on
the ground that the impeached orders are not in terms of the statute or
they are made in abuse of law.

25-06-2021 (Page 13 of 305) www.manupatra.com SOAS Library Library

44. The decisions of this Court in Mohan Chowdhury's and Makhan Singh's
cases (supra) are that during the operation of a Proclamation of emergency
no one has any locus standi to move any court for the enforcement of any
fundamental rights mentioned in the Presidential Order. The ratio must
necessarily apply to Executive acts because Executive acts are challenged
on the grounds of being contrary to law and- without the authority of law.
The submission 61 the respondents that a person in detention can come to a
court of law in spite of the Presidential Order under Article 359(1) and
contend that a habeas corpus should be issued for ins release or that the
Executive should answer the detenu's challenge that the Act complained of
is without authority of law or the challenge of the detenu that the provisions
of the Legislative Act under which the detention has been made have not
been complied with are all rooted in the enforcement of fundamental rights
to liberty under Articles 21 and 22. If courts will in spite of the Presidential
Order entertain such applications and allow the detenus to enforce to start
or continue proceedings or enforce fundamental rights, Article 359(1) will be
nullified and rendered otiose.

45. This Court in Makhan Singh's case (supra) said that if there was
challenge to the validity of the detention order based on any right other
than those mentioned in the Presidential Order that detenu's right to move
any court could not be suspended by the Presidential Order because the
right was outside Article 359(1). This was explained by staling that if 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, the bar of the Presidential Order could have no application.

46. This observation in Makhan Singh's case (supra) is to be understood in

the context of the question that arose for decision there. Decision on a point
not necessary for the purpose of or which does not .fall to be determined in
that decision becomes an obiter dictum [See Maha-rajadhiraja Madhav Rao
Jiwaji Rao Scindia Bahadur and Ors. v. Union of India MANU/SC/0050/1970
: [1971]3SCR9 . In Makhan Singh's case (supra) the detention orders which
were the subject matter of the judgment were orders made by the Executive
under the Defence of India Ordinance or Act and rules and orders made
thereunder which was the express condition for detention in respect of
which the Presidential Order of 1.962 under Article 359(1) applied.

47. The Presidential Order in the present case is on the face of it an un-
conditional order and. as such there is the vital and telling difference
between the effect of the Presidential Order of 1962 and the present
Presidential Order. It is obvious that the Government fully conscious of the

25-06-2021 (Page 14 of 305) www.manupatra.com SOAS Library Library

Presidential Order of 1962 and its effect as determined by the decisions of
this Court in Makhan Singh's case (supra) and subsequent cases deliberately
made the present Presidential Order an un-conditional order under Article
359(1).

48. Reference may be made to State of Maharashtra v. Prabhakar

Pandurang Sangzgiri and Anr. MANU/SC/0089/1965 : 1966CriLJ311 which
clearly pointed out that the Presidential Order of 1962 was a conditional one
and therefore if a person was deprived of ins personal liberty not under the
Act or rules and orders made thereunder but in contravention thereof, ins
right to move the courts in that regard would not be suspended. The
decision; of this Court in Pandurang's case (supra) is by the Constitution
Bench of five learned Judges, three of whom were on the Constitution Beach
of seven learned Judges deciding Makhan Singh's case (supra). In
Pandurang's case (supra) the ratio was that if a person was deprived of ins
personal liberty not under the Act or rules and orders made thereunder but
in contravention thereof, ins right to move the courts in that regard was not
suspended.

49. It, therefore, follows from the decisions in Pandurang's case and Makhan
Singh's case (supra) that the ratio in both the cases was that the 1962
Presidential Order being a conditional one the enforcement of rights under
Articles 21 and 22 was suspended only to the extent of the conditions laid
down in the Presidential Order and the suspension could not operate in
areas outside the conditions. There is no aspect whatever of any condition in
the present Presidential Order. therefore, the decisions in Makhan Singh's
case (supra) and subsequent cases following it have no application to the
present cases where the suspension is not hedged with any condition of
enforcement of any right under Articles 21 and 22. The conclusion for the
foraging reasons is that the Presidential Order is a bar at the threshold.

50. The heart of the matter is whether Article 21 is the sole repository of the
right to personal liberty. If the answer to that question be in the affirmative
the Presidential Order will be a bar.

51. The contentions of the Attorney General are two-fold. First, the legal
enforceable right to personal liberty for violation thereof by the Executive is
a fundamental right conferred by the Constitution and is embodied in Article
21. Second, apart from Article 21 the right to personal liberty against the
Executive is neither a common law right nor a statutory right nor a natural
right. He relies on three decisions. The earliest is Girindra Nath Banerjee v.
Birendra Nath Pal I. L. R. 54 Cal 727. The others are King Emperor v.

25-06-2021 (Page 15 of 305) www.manupatra.com SOAS Library Library

Sibnath Banerjee 72 I. A. 241 and Makhan Singh's case (supra). In the first
two decisions it has been held that the right to habeas corpus is only under
Section 491 of the CrPC. In Makhan Singh's case (supra) it has been said
that this right under Section 491 became embodied in Article 21. The
statutory right under Section 491 of the CrPC has been deleted from the
new CrPC which came into effect on 1 April, 1974.

52. The arguments on. behalf of the respondents are that the right to life
and personal liberty is not only in Article 21 but also under common law and
statutes for these reasons.

53. The right to personal liberty is contained in Articles 19, 20 and 22, and,
therefore, Article 21 is not the sole repository to personal liberty. The
respondents rely on the decision in Rustom Cavasjee Cooper v. Union of
India MANU/SC/0011/1970 : [1970]3SCR530 where it was said that the
ruling in A. K. Gopalan v. The State of Madras [1950] 3 S. C. R. 88 that
Articles 19 and 22 are mutually exclusive no longer holds the field. The
respondents also rely on the decisions in Shambhu Nath Sarkar v. The State
of West Bengal and Ors. MANU/SC/0163/1973 : [1974]1SCR1 , Haradhan
Saha and Anr. v. The State of West Bengal and Ors. MANU/SC/0419/1974 :
1974CriLJ1479 and Khudiram Das v. The State of West Bengal and Ors.
MANU/SC/0423/1974 : [1975]2SCR832 in support of 'the proposition that
these decisions followed the ruling in the Bank Nationalisation case (supra).
The respondents contend that the Presidential Order bars enforcement of
rights under Articles 14, 19, 21 and 22 but it is open to the respondents to
enforce violation of rights under Article 20. The other, reasons advanced by
the respondents are dealt with hereinafter.

54. The majority view in His Holiness Kesavananda Bharati Sripada-galavaru

v. State of Kerala MANU/SC/0114/1972 : 1972CriLJ1526 is that there are no
natural rights. Fundamental rights in our Constitution are interpreted to be
what is commonly said to be natural rights. The only right to life and liberty
is enshrined in Article 21.

55. In A. K. Gopalan''s case (supra) it has been said that to read law as
meaning, natural law is to lay down vague standards. Law means law
enacted by the State. Law must have some firmness. Law means positive
State made law. Article 21 has been interpreted in A. K. Gopalan's case
(supra) to include substantive as well as procedural law in the phrase
"procedure established by law". The reason is obvious. A law providing for
procedure depriving a person of liberty must be a law made by statute. P.D.
Shamdasani v. Central Bank of India Ltd. MANU/SC/0017/1951 :

25-06-2021 (Page 16 of 305) www.manupatra.com SOAS Library Library

[1952]1SCR391 held that Article 21 is prohibition against unauthorised
executive action. In Shrimati Vidya Verma through next friend R. V. S. Mani
v. Dr. Shiva Narain Verma MANU/SC/0072/1955 : 1956CriLJ283 law in
Article 21 has been held to mean State made law.

56. In Makhan Singh's case (supra) it was decided that during the
subsistence of the Presidential Order suspending the enforcement of
fundamental rights neither a petition under Article 32 nor a petition under
Article 226 could be moved invoking habeas corpus. An application invoking
habeas corpus under Section 491 of the CrPC cannot similarly be moved in
the High Court.

57. Part III of our Constitution confers fundamental rights in positive as well
as in negative language. Articles 15(1), 16(1), 19, 22(2), 22(5), 25(1), 26,
29(1), 30 and 32(1) can be described to be Articles in positive language.
Articles 14, 15(2), 16(2), 20, 21, 22(1), 22(4), 27, 28(1), 29(2), 31(1) and
(2) are in negative language. It is apparent that most categories of
fundamental rights are in positive as well as in negative language. A
fundamental right couched in negative language accentuates by reason
thereof the importance of that right. The negative language is worded to
emphasise the immunity from State action as a fundamental right. [See The
State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and
Ors. MANU/SC/0019/1952 : [1952]1SCR889 . These fundamental rights
conferred by our Constitution have taken different forms. Some of these
fundamental rights are said to have the texture of Basic Human Rights (See
A, K. Gopalan's case (supra) at pp. 96-97, 248, 249, 293 and Bank
Nationalisation case (supra) at pp. 568-71, 576-78).

58. Article 31(1) and (2) subordinate the exercise of the power of the State
to the concept of the Rule of Law enshrined in the Constitution. (See Bank
Nationalisation case (supra) at p. 568). Similarly,

Article 21 is our Rule of Law regarding life and liberty. No other rule of law
can have separate existence as a distinct right. The negative language of
fundamental right incorporated in Part III imposes limitations on the power
of the State and declares the corresponding guarantee of the individual to
that fundamental right. The limitation and guarantee are complementary.
The limitation of State action embodied in a fundamental right couched in
negative form is the measure of the protection of the individual.

59. Personal liberty in Article 21 includes all varieties of rights which go to

make personal liberty other than those in Article 19(1)(d). (See Kharak

25-06-2021 (Page 17 of 305) www.manupatra.com SOAS Library Library

Singh v. State of U.P. MANU/SC/0085/1962 : 1963CriLJ329 and Ors. The
Bank Nationalisation case (supra) merely brings in the concept of
reasonable restriction in the law. In the present appeals, the Act is not
challenged nor can it be challenged by reason of Article 358 and Article
359(1A) and the Presidential Order mentioning Article 19 as well.

60. If any right existed before the commencement of the Constitution and
the same right with its same content is conferred by Part III as a
fundamental right the source of that right is in Part III and not in any pre-
existing right. Such pre Constitution right has been elevated by Part III as a
fundamental right. The pre-existing right and the fundamental right have to
be grouped together as a fundamental right conferred by the Constitution.
See Dhirubha Devisingh Gohil v. The State of Bombay MANU/SC/0032/1954
: [1955]1SCR691 .

61. If there is a pre Constitution right which is expressly embodied as a

fundamental right under our Constitution, the common law right has no
separate existence under our Constitution. (See B. Shankara Rao Badami
and Ors. v. State of Mysore and Anr. MANU/SC/0022/1968 : [1969]3SCR1 .
If there be any right other than and more extensive than the fundamental
right in Part III, such right may continue to exist under Article 372.

62. Before the commencement of the Constitution the right to personal

liberty was contained in Statute law, e.g. the Indian Penal Code, the
Criminal Procedure Code as also in the common law of Torts. In the event of
any wrongful infringement of the right to personal liberty the person
affected could move a competent court by way of a suit for false
imprisonment and claim damages.

63. Suits for false imprisonment are one of the categories of law of Torts.
The common law of Torts prevailed in our country before the Constitution on
the basis of justice, equity and good conscience. (See Waghela Rajsanfi v.
Shiekh Masludin and Ors. 14 I. A 89, Satish Chandra Chakravarti v. Ram
Doyal De I.L.R. 48 Cal. 388. 426 and Baboo s/o Thakur Dhobi v. Mt.
Subanshi w/o Mangal Dhobi MANU/NA/0024/1942. This principle of justice,
equity and good conscience which applied in India before the Constitution is
generally known as the English Common Law. Apart from the law of Torts,
there was no civil remedy for unlawful infringement of the right to personal
liberty in India before the Constitution.

64. After the amendment of Section 491 of the CrPC in 1923, the right to
obtain a direction in the nature of a habeas corpus became a statutory right

25-06-2021 (Page 18 of 305) www.manupatra.com SOAS Library Library

to a remedy 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. (See Makhan Singh's
case (supra) at pp. 818-19; District Magistrate, Trivandrum v. K. C.
Mammen Mappil-lai I.L.R. [1939] Mad. 708, Matthen v. District Magistrate,
Trivandrum L.R. 66 IndAp 222, Girindra Nath Banerjee's case (supra) and
Sibnath Banerjee's case (supra). The previsions of Section 491 of the
Criminal Procedure Code have been repealed recently as being superfluous
in view of Article 226. (See 41st Report of Law Commission of India (Vol. I)
p. 307).

65. The present appeals arise from petitions filed in High Courts for writs in
the nature of habeas corpus. The statutory right to remedy in the nature of
habeas corpus under Section 491 of the Criminal Procedure Code cannot be
exercised now In view of the repeal of that section. Even if the section
existed today it could not be exercised as a separate right distinct from the
fundamental right, the enforcement of which is suspended by the
Presidential Order as was held by this Court in Makhan Singh's case (supra)
at pp. 818-825. There was no statutory right to enforce the right to personal
liberty other than that in Section 491 of the Criminal Procedure Code before
the commencement of the Constitution which could be carried over after its
commencement under Article 372. Law means enacted law or statute law.
(See A. K. Gopakm's case (supra) at pp. 112, 199, 276, 277, 288, 307, 308,
309, 321, 322). It follows that law in Article 21 will include all post-
constitutional statute law including the Act in the present case and by virtue
of Article 372 all pre-constitutional statute law including the Indian Penal
Code and the Criminal Procedure Code.

66. The expression "procedure established by law" includes substantive as

well as procedural law. (See A. K. Gopalan's case (supra) at p. 111 and S.
Krishnan and Ors. v. The State of Madras MANU/SC/0008/1951 :
[1951]2SCR621 . It means some step or method or manner of procedure
leading upto deprivation of personal liberty. A law depriving a person of
personal liberty must be a substantive and procedural law authorising such
deprivation. It cannot be a bare law authorising deprivation of personal
liberty. The makers of the Constitution had the Criminal Procedure Code in
mind. The repealed Criminal Procedure Code as well as the present Criminal
Procedure Code has substantive as well as procedural provisions. The
substantive as well as the procedural parts in a law depriving a person of
personal liberty must be strictly followed. There is no distinction between
the expression "save by authority of law" in Article 31(1) and the expression
"except by authority of law" in Article 265. Laws under Article 31(1) must
lay down a procedure containing reasonable restrictions. Law under Article

25-06-2021 (Page 19 of 305) www.manupatra.com SOAS Library Library

265 also lays down a procedure. therefore, there is no difference between
the expression "except according to procedure established by law" in Article
21 and the expression "save by authority of law" in Article 31(1) or the
expression "except by authority of law" in Article 265. When Article 21 was
enacted it would be a blunder to suggest that the founding fathers only
enshrined the right to personal liberty according to procedure and did not
frame the constitutional mandate that personal liberty could not be taken
except according to law.

67. The Attorney General rightly submitted at the outset that Article 21
confers a fundamental right against the Executive and law in that Article
means State law or statute law. In the present appeals, the respondents
allege that Section 3 of the Act has not been complied with. In the present
appeals the Act is not challenged nor can it be challenged on the ground of
infringement of Article 19 by reason of Articles 358, 359(1) and the
Presidential Order. It has been pointed out earlier that non-compliance with
the provisions of the Act cannot be challenged as long as the Presidential
Order is in force.

68. Article 20 states that no person shall be prosecuted and punished for
the same offence more than once. The present appeals do not touch any
aspect of Article 20. The reason why reference is made at this stage to
Article 20 is to show that Article 20 is a constitutional mandate to the
Judiciary and Article 21 is a constitutional mandate to the Executive.

69. The respondents contend that "State" in Article 2 will also include the
Judiciary and Article 20 is enforceable against the Judiciary in respect of
illegal orders. The answer is that Article 20 is a prohibition against the
Judiciary in the cases contemplated there. If a person is detained after the
Judiciary acts contrary to the provisions in Article 20 such detention cannot
be enforced against the Judiciary. In the event of the Judiciary acting
contrary to the provisions in Article 20 such detention can be challenged by
moving the court against the Executive for wrongful detention, or conviction
or punishment as the case may be. The expression "No person shall be
prosecuted for the same offence more than once" in Article 20 would apply
only to the Executive.

70. The decision in Makhan Singh's case (supra) is that fundamental rights
cannot be enforced against the Judiciary in case of illegal orders. The
decision in Ram Narayan Singh v. The State of Delhi and Ors.
MANU/SC/0035/1953 : 1953CriLJ113 is no authority for the proposition that
fundamental rights can be enforced against the Judiciary. This Court held

25-06-2021 (Page 20 of 305) www.manupatra.com SOAS Library Library

that the detention of Ram Narayan was illegal because Ram Narayan was
being detained without any order of remand by the Magistrate. In Ram
Narayan's case (supra) there was no aspect of the bar under Article 359. It
is not correct to say that the suspension of fundamental rights or of their
enforcement can increase the power of the Executive. The effect of
suspension or enforcement of fundamental rights is that an individual
cannot move any court for the enforcement of ins fundamental right to
personal liberty for the time being.

71. Reference to Articles 256, 265 and 361 was made by the respondents to
show that Article 21 is not the repository of rights to life and liberty. These
references are irrelevant. Article 256 does not confer any right on any
person. It deals with relations between the Union and the State. Article 265
has nothing to do with the right to personal liberty. Article 361(3) refers to
the issue of a process from any court which is a judicial act and not any
Executive action. In any event, these Articles have no relevance in the
present appeals.

72. Reference was made by the respondents to an accused filing an appeal

relating to criminal proceedings to show that Article 21 is not the sole
repository of right to life and liberty. In a criminal proceeding the accused
defends himself against the accusation of an offence against him. He does
not move any court for the enforcement of ins fundamental right of personal
liberty. In an appeal against the order of conviction the accused challenges
the correctness of the judicial decision. An appeal or revision is a
continuation of the original proceeding. (See Garikapatti Veeraya v. N.
Subbiah Choudhury MANU/SC/0008/1957 : [1957]1SCR488 and
Ahmedabad Mfg. and Calico Ptg. Co. Ltd. v. Ram Tahal Ramnand and Ors.
MANU/SC/0031/1972 : (1972)IILLJ165SC .

73. The respondents posed the question whether a decree given against the
Government could be enforced because of the Presidential Order. This is
irrelevant. However, a decree conclusively determines the rights of the
parties in the suit and after a decree is passed the right of the decree-holder
is not founded on the right which is recognised by the decree but on the
decree itself. This right arising from a decree is not a fundamental right,
and, therefore, will not be prima facie covered by a Presidential Order under
Article 359(1).

74. The other examples given by the respondents are seizure of property by
Government, requisition by Government contrary to Articles 31 and 19(1)
(f). If any seizure of property is illegal or an acquisition or requisition is

25-06-2021 (Page 21 of 305) www.manupatra.com SOAS Library Library

challenged it will depend upon the Presidential Order to find out whether the
proceedings are for the enforcement of fundamental rights covered by the
Presidential Order.

75. Fundamental rights including the right to personal liberty are conferred
by the Constitution. Any pre Constitution rights which are included in Article
21 do not after the Constitution remain in existence which can be enforced if
Article 21 is suspended. If it be assumed that there was any pre-
constitutional right to personal liberty included in Article 21 which continued
to exist as a distinct and separate right then Article 359(1) will be an
exercise in futility. In Makhan Singh's case (supra) there was not suggestion
that apart from Article 21 there was any common law or pre Constitution
right to personal liberty.

76. The theory of eclipse advanced on behalf of the respondents is

untenable. Reliance was placed on the decision in Bhikaji Narain Dhakras
and Ors. v. The State of Madhya Pradesh and Anr. MANU/SC/0016/1955 :
[1955]2SCR589 . The theory of eclipse refers to pre-constitutional laws
which were inconsistent with fundamental rights. By reason of Article 13(1)
such laws did not become void but became devoid of legal force. Such laws
became eclipsed for the time being. The theory of eclipse has no relevance
to the suspension of the enforcement of fundamental rights under Article
359(1). The constitutional provisions conferring fundamental rights cannot
be said to be inconsistent with Article 13(1).

77. Article 21 is not a common law right. There was no pre-existing common
law remedy to habeas corpus. Further, no common law right which
corresponds to a fundamental right can exist as a distinct right, apart from
the fundamental right. See Dhirubha Devisingh Gohil v. The State of
Bombay (supra) and B. Shankar Rao Badatni's case (supra). In Gohil's case
(supra) the validity of the Bombay Act of 1949 was challenged on the
ground that it took away or abridged fundamental rights conferred by the
Constitution. The Act was held to be beyond question in view of Article 31B
which had been inserted in the Constitution by the First Amendment and the
Act being mentioned as Item 4 of the 9th Schedule. It was said that one of
the rights secured by Part III of our Constitution is a right that the property
shall be acquired for a public purpose and under a law authorising such
acquisition and providing for compensation. That is also the very right which
was previously secured to a person under Section 299 of the Government of
India Act, 1935. This Court said that what under the Government of India
Act was a provision relating to the competency of the Legislature, was also
clearly in the nature of a right of the person affected. The right under Article

25-06-2021 (Page 22 of 305) www.manupatra.com SOAS Library Library

299 which was pre-existing, became along with other fundamental rights for
the first time secured by our Constitution when grouping them together as
fundamental rights.

78. The respondents gave the example that although Section 12(2)' of the
Act makes it obligatory on the Executive to revoke the detention order and if
the Executive does not do so such Executive action will amount to non-
compliance with the Act. Here again, the detenu cannot enforce any
statutory right under the Act for the same reason that it will amount to
enforce ins fundamental right to personal liberty by contending that the
Executive is depriving him of ins personal liberty not according to
"procedure established by law". Similarly, the example given of an illegal
detention of a person by a Police Officer will be met with the same plea.

79. An argument was advanced on behalf of the respondents' that if pre-

existing law is merged in Article 21 there will be conflict with Article 372.
The expression "law in force" in Article 372 cannot include laws which are
incorporated in the Constitution viz., in Part III. The expression "law" in
Articles 19(1) and 21 takes in statute law.

80. The respondents contended that permanent law cannot be repealed by

temporary law. The argument is irrelevant and misplaced. The Presidential
Order under Article 359(1) is not a law. The Order does not repeal any law
either. The suggestion that Article 21 was intended to afford protection to
life and personal liberty against violation by private individuals was rejected
in Shamdasani's case (supra) because there cannot be any question of one
private individual being authorised by law to deprive another of ins property
or taking away the life and liberty of any person by procedure established by
law. The entire concept in Article 21 is against Executive action. In Vidya
Verma's case (supra) this Court said that there is no question of
infringement of fundamental right under Article 21 where the detention
complained of is by a private person and not by a State or under the
authority or orders of a State.

81. The Act in the present case is valid law and it has laid down procedure
of applying the law. The validity of the Act has not been challenged and
cannot be challenged. The Legislature has competence to make the law. The
procedure, therefore, cannot be challenged because Articles 21 and 22
cannot be enforced. The suggestion of the respondents that the power of
the Executive is widened is equally untenable.

25-06-2021 (Page 23 of 305) www.manupatra.com SOAS Library Library

82. The suggestion on behalf of the respondents that the right to private
defence is available and if any one resorted to private defence in resisting
detention there might be civil war is an argument to excite emotion. If there
are signs of civil war, as the respondents suggested," it is for the
Government of our country to deal with the situation. It is because of these
aspects that emergency is not justiciable because no court can have proper
standard to measure the problems of emergency in the country. If any
person detained finds that the official has the authority to arrest him no
question of resistance arises and if there is no authority the same cannot be
challenged during the operation of the Presidential Order but the person
shall have ins remedy for any false imprisonment after the expiry of the
Presidential Order.

83. The respondents submitted that if Article 21 were the repository of a

right to personal liberty it would mean that Article 21 destroyed pre-existing
rights and then made a fresh grant. There is no question of destruction of
any right. Our fundamental rights came into existence for the first time
under the Constitution. The fact that Section 491 of the old Criminal
Procedure Code has been abolished in the new Code establishes that the
pre-existing right was embodied as a fundamental right in the Constitution.
The right to personal liberty became identified with fundamental right to
personal liberty under Article 21.

84. The third question is whether Rule of Law overrides the Presidential
Order. The Presidential Order does not alter or suspend any law.

The rule of law is not a mere catchword or incantation. Rule of law is not a
law of nature consistent and invariable at all times and in all circumstances.
The certainty of law is one of the elements in the concept of the Rule of Law
but it is only one element and, taken by itself, affords little guidance. The
essential feature of Rule of Law is that the judicial power of the State is, to a
large extent, separate from the Executive and the Legislature. Rule of Law is
a normative as much as it is a descriptive term. It expresses an ideal as
much as a juristic fact. The Rule of Law is not identical with a free society. If
the sphere of the Rule of Law involves what can be called the "Existence of
the Democratic System" it means two things. In the first place the individual
liberties of a democratic system involve the right of the members of each
society to choose the Government under which they live. In the second
place come freedom of speech, freedom of assembly and freedom of
association. These are not absolute rights, Their exceptions are justified by
the necessity of reconciling the claims of different individuals to those rights.
The criterion whereby this reconciliation can be effected is the concern of

25-06-2021 (Page 24 of 305) www.manupatra.com SOAS Library Library

the law to ensure that the status and dignity of all individuals is to the
greatest possible extent observed.

85. Freedom of speech may be limited by conceptions as "clear and present

danger", "attack on the free democratic order". The institutions and
procedures by which the fundamental regard for the status and dignity of
the human person can be effected is that rights and remedies are
complimentary to the other. The phrases such as "equality before law" or
"equal protection of the laws" are in themselves equivocal. The supremacy
of the law means that the faith of civil liberty depends on the man who has
to administer civil liberty much more than on any legal formula. Aristotle,
pointed out that the rigid certainty of law is not applicable to all
circumstances. This plea would be echoed by the modern administrator
called upon to deal with the ever changing circumstances of economic and
social life of the nation.

86. The respondents contend that all executive actions which operate to the
prejudice of any person must have the authority of law to support it.
Reliance is placed on the decisions in Rai Sahib Ram Jawaya Kapur and Ors.
v. The State of Punjab MANU/SC/0011/1955 : [1955]2SCR225 , M. P. State
v. Bharat Singh MANU/SC/0043/1967 : [1967]2SCR454 , Collector v.
Ibrahim & Co. MANU/SC/0070/1970 : [1970]3SCR498 , Bennet Coleman &
Co. v. Union of India MANU/SC/0038/1972 : [1973]2SCR757 and Meenakshi
Mills v. Union of India MANU/SC/0064/1973 : [1974]2SCR398 . This is
amplified by the respondents to mean that the Executive cannot detain a
person otherwise than under any legislation and on the suspension of Article
21 or the right to enforce it, the Executive' cannot get any right to act
contrary to law.

87. The Executive cannot detain a person otherwise than under valid
legislation. The suspension of any fundamental right does not effect this rule
of the Constitution. In normal situations when there is no emergency and
when there is no Presidential Order of the type like the present the situation
is different. In Bharat Singh's case (supra) this Court was concerned with
the pre-emergency law and an order of the Executive thereunder. It was
held that the pre-emergency law was void as violative of Article 19, and,
therefore, such a law being pre-emergency law could not claim the
protection under Article 358.

88. The ratio in Bharat Singh's case (supra) is this : Executive action which
operates to the prejudice of any person must have the authority of law to
support it. [See also Ram Jaway a Kapur's case (supra)]. The provisions of

25-06-2021 (Page 25 of 305) www.manupatra.com SOAS Library Library

Article 358 do not detract from that rule. Article 358 expressly authorises
the State to take legislative or Executive action provided such action was
competent for the State to make or take but for the provisions contained in
Part III of our Constitution. Article 358 permits an Executive action under a
law which may violate Article 19 but if the law is void or if there be no law at
all, the Executive action will not be protected by Article 358. Bharat Singh's
case (supra) considered the effect of Article 358 so far the Executive action
is concerned, but was not concerned with any Executive action taken
infringing any fundamental right mentioned in a Presidential Order under
Article 359(1).

89. Ibrahim's case (supra), the Bannett Coleman case (supra) and the
Meenakshi Mills case (supra) follow Bharat Singh's case (supra) regarding
the proposition that the terms of Article 358 do not detract from the position
that the Executive cannot act to the prejudice of a person without the
authority of law.

90. The ratio in Bharat Singh's case (supra) is that the Madhya Pradesh
Public Security Act was brought into force before the emergency. Article 358
empowers the legislature to make a law violating Article 19. Article 358 does
not mean that a pre-emergency law violating Article 19 would have
constitutional validity during the period of emergency. The Executive action
which was taken during the emergency on the basis of the pre-emergency
law did not have the authority of law inasmuch as the Madhya Pradesh Act
of 1959 was a void law when it was enacted in violation of Article 19.

91. In Ibrahim's case (supra) the Sugar Control Order 1963 permitted
allocation of quotas of sugar. The State Government ordered that the sugar
allocated to the two cities of Hyderabad and Secunderabad were in entirety
to be given to the Co-operative -Stores. Under. Article 358 the respondents
there could not challenge an Executive action which, but for the provisions
contained Article 19, the State was competent to take. But the Executive
order there was one which had the effect of cancelling the licences of the
respondents which could be done only after an enquiry according to the
procedure prescribed in the order. The Executive order there was contrary to
the provisions contained in the Sugar Control Order. In other words, the
Executive action which was in breach of the order could not be immune from
attack under Article 358. In the Bennet Coleman case (supra) it was said
that the Newsprint Control Order could not authorise the number of pages.
In the Meenakshi Mills case (supra) it was said that the Yarn Control Order
could not be resisted on the ground that it had BO direct impact on the
rights of the mills.

25-06-2021 (Page 26 of 305) www.manupatra.com SOAS Library Library

92. In these four cases referred to there was no question of enforcement of
fundamental right mentioned in the Presidential Order. These four cases
were not concerned with any Executive action taken infringing any
fundamental right mentioned in a Presidential Order under Article 359.

93. The suspension of right to enforce fundamental right has the effect that
the emergency provisions in Part XVIII are by themselves the rule of law
during times of emergency. There cannot be any rule of law other than the
constitutional rule of law. There cannot be any pre Constitution or post
Constitution Rule of Law which can run counter to the rule of law embodied
in the Constitution, nor can there be any invocation to any rule of law to
nullify the constitutional provisions during the times of emergency.

94. The respondents relied on the decision in Eshugbayi Eleko v. Officer

Administering the Government of Nigeria [1931] A. C 662 in support of the
proposition that Rule of Law will always apply even when there is
Presidential Order. It has to be realised that the decision in Eshuqbavi Eleko
cannot over-reach our Constitution.

95. Article 358 does not permit the Executive action to have the authority of
law. Article 359 prevents the enforcement of the fundamental rights
mentioned in the Presidential Order. It bars enforcement against any
legislation or executive action violating a fundamental right mentioned in
the Presidential Order.

96. The principle in Eshugbayi Eleko's case (supra) will not apply where-
Article 359 is the paramount and supreme law of the country. There is no
question of amendment of the concept of rule of law or any suggestion of
destruction of rule of law as the respondents contended because the
Presidential Order under Article 359 neither nullifies nor suspends the
operation of any law. The consequence of the Presidential Order is of a
higher import than the suspension of any law because the remedy for the
enforcement of fundamental rights is barred for the time being because of
grave emergency.

97. The respondents contend that if an individual officer acts outside ins
authority, it will be an illegal act and the High Court under Article 226 can
deal with it. Reliance is placed on the English decision in Christie and Anr. v.
Leachinsky [1947] A. C. 573 in support of the proposition that the action of
an individual officer will be an Executive action when he acts within the
scope of ins authority.

25-06-2021 (Page 27 of 305) www.manupatra.com SOAS Library Library

98. The decision in Leachinsky's case (supra) is an action for false,
imprisonment and damages against two persons of Liverpool City Police for
wrongfully arresting a person without informing that person of the grounds
for arrest. That case has no relevance here.

99. An individual officer acting within the scope of ins official duty would not
cease to be so if he makes an order which is challenged to be not in
compliance with the statute under which he is authorised to make the order.
Any challenge to the order of detention would come within the fold of breach
of fundamental right under Article 21, namely, deprivation of personal
liberty.

100. The obligation of the Executive to act in accordance with the Act is an
obligation as laid down in Article 21. If such an obligation is not performed,
the violation is of Article 21. It will mean that the right of the person
affected will be a violation of fundamental right.

101. The expression "for any other purpose" in Article 226 means for any
purpose other than the enforcement of fundamental rights. A petition for
habeas corpus by any person under Article 226 necessarily involves a
question whether the detention is legal or illegal. An Executive action if
challenged to be ultra vires a statute cannot be challenged by any person
who is not aggrieved by any such ultra vires action.

102. Section 18 of the Act has been argued by the respondents to mean
that a malafide order of detention cannot be regarded as an order made
Under the Act. Section 18 has also been challenged to suffer from the vice
of excessive delegation. Section 18 has been amended by the words "in
respect of whom an order is made or purported to be made under Section 3"
in substitution of the words "detained under this Act". The result is that no
person in respect of whom and order is made or purported to be made
under Section 3 shall have any right to personal liberty by virtue of natural
law or common law, if any. It has been earlier held that there is no natural
law or common law right to habeas corpus. The respondents rely on the
decisions in Poona Municipal Corporation v. D. N. Deodher
MANU/SC/0229/1964 : [1964]8SCR178 , Kala Bhandar v. Munc. Committee
MANU/SC/0267/1965 : [1966]59ITR73(SC) , Indore Municipality v.
Niyatnatulla A. I. R. 1971 S. C. 97 and Joseph v. Joseph [1966] 3 All. E. R.
486 in support of the proposition that the expression purports" means "has
the effect of". The respondents contend that Section 18 of the Act can apply
only when a valid order of detention is made. If the section be interpreted to
include malafide orders or orders without jurisdiction then it is said that

25-06-2021 (Page 28 of 305) www.manupatra.com SOAS Library Library

such interpretation will prevail upon the judicial power and violate Article
226.

103. The expression "purported to be done" occurs in Section 80 of the CPC.

The expression "purported to be made under Section 3 of the Act" in Section
18 will include an executive act made by the District Magistrate within the
scope of ins authority as District Magistrate, even if the order is made in
breach of the section or is mala fide. (See Hari Singh v. The Crown [1939] F.
C. R 159 Bhagchand Dagadusa v. Secretary of State for India L. R. 54 I. A,
338, Albert West Meads v. The King MANU/PR/0018/1948, Anisminic v.
Foreign Compensation etc. [1969] 1 All. E R. 208 and Dakshina Ranjan
Ghosh v. Omar Chand Oswal I. L. R. 50 Cal., 992. As long as the District
Magistrate acts within the scope of ins authority as a District Magistrate an
order passed by him is an order made or purported to be made under
Section 3 of the Act.

104. The section applies to any person in respect of whom an order has
been made or purported to be made. There is no question of excessive
delegation. Section 18 of the Act lays down the law. Section 18 of the Act is
only an illustration of an application of the Act by the officers authorised by
the Act.

105. Section 18 identifies the person to whom it applies and in what cases it
applies to such a person. The word "purport" covers acts alleged to be
malafide. The decisions to which reference has been made indicate that the
acts whatever their effect be are all acts made or purported to be made
under the Act.

106. A contention is advanced by the respondents that Section 18 of the Act

will apply only to post-detention challenge. This is wrong. Section 18 applies
to all orders of detention.

107. Counsel on behalf of the respondents submitted that the High Courts
had only heard the matters on preliminary points and not on the area of
judicial scrutiny, and, therefore, this Court should not express any view on
the latter question. There are three principal grounds why this Court should
express views. First. The Bombay High Court (Nagpur Bench) has read down
Section 16A(9) of the Act. One of the appeals is from the judgment of the
Bombay High Court (Nagpur Bench). This judgment directly raises the
question of Section 16A(9) of the Act. Second. The Additional Solicitor
General made ins submissions on this part of the case and all counsel for
the respondents made their submissions in reply. Considerable time was

25-06-2021 (Page 29 of 305) www.manupatra.com SOAS Library Library

spent on hearing submissions on both sides. Time of the Court is time of the
nation. Third. It is only proper that when so much time has been taken on
these questions this Court should express opinions and lay down areas for
judicial scrutiny.

108. The respondents contend that if the Presidential Order does not bar the
challenge on the ground that the orders are malafide or that the orders are
not made in accordance with the Act the non-supply of grounds will not
affect the jurisdiction of the Court. It is said by the respondents that the
scope of judicial scrutiny is against orders. The respondents submit that
court has gone behind the orders of detention in large number of cases.

109. The respondents submit as follows : It is open to the Court to judge

the legality of the orders. This the Court can do by going beyond the order.
Though satisfaction is recorded in the order and such recording of
satisfaction raises the presumption of legality of order the initial onus on a
detenu is only to the extent of creating "disquieting doubts" in the mind of
the Court. The doubts are that the orders are based on irrelevant non-
existing facts or on facts on which no reasonable person could be satisfied in
respect of matters set out in Section 3 of the Act. If such a prima facie case
is established the burden shifts and the detaining authority must satisfy the
court about the legality of detention and the detaining authority must
remove doubts on all aspects of legality which have been put in issue. If the
detaining authority for whatever reasons fails to satisfy the court either by
not filing an affidavit or not placing such facts which may resolve the doubts
about the legality of detention the court may direct release of the detenus.

110. The respondents submit that all that they want is that if the detenus
challenge the orders to be malafide or to be not in compliance with the
statute and if the court does not have any "disquieting doubts" the court will
dismiss the petitions. If the court has any such doubt the court will call for
the return. On a return being made if the court is satisfied that the return is
an adequate answer the court will dismiss the petition. If the court wants to
look into the grounds the court will ask for the production of the grounds
and the court itself will look into the grounds but will not show the grounds
to the detenus. In short, the respondents submit that the jurisdiction of the
court to entertain the application should not be taken away as a result of the
Presidential Order.

111. The appellants submit that if Article 359 is not a bar at the threshold
and if the Court can entertain a petition, judicial review should be limited
within a narrow area. In the forefront 16A(9) of the Act is put because that

25-06-2021 (Page 30 of 305) www.manupatra.com SOAS Library Library

section forbids disclosure of grounds and infarction in the possession of the
detaining authority. The Nagpur Bench of the Bombay High Court read down
Section 16A(9) but the Additional Solicitor General submitted that Section
16A(9) should not be read down because it enacts a rule of evidence.

112. The Additional Solicitor General submitted as follows : The scrutiny by

courts will extend to examining first whether detention is in exercise or
purported exercise of law. That will be to find out whether there is a legal
foundation for detention. The second enquiry will be whether the law is valid
law. If it is a pre-emergency law the same can be tested as to whether it
was valid with reference to Articles 14, 19, 21 and 22. If it is an emergency
legislation the validity of law cannot be gone into first, because of Article
358, and, second, because of the Presidential Order under Article 359. The
other matters which the court may examine are whether the detaining
authority is a competent authority under the law to pass the order, whether
the detenu has been properly identified, whether the stated purpose is one
which ostensibly conforms to law and whether the procedural safeguards
enacted by the law are followed.

113. With regard to grounds of detention it is said by the Additional Solicitor

General that if the grounds are furnished or are required to be furnished the
Court can examine whether such grounds ex-facie justify reasonable
apprehension of the detaining authority. Where the grounds are not to be
furnished, it is said, that this enquiry does not arise. The Additional Solicitor
General submits that judicial scrutiny cannot extend to three matters--first,
objective appraisal of the essential subjective satisfaction of the detaining
authority, second, examination of the material and information before the
detaining authority for the purpose of testing the satisfaction of the
authority, and, third, directing compulsory production of the file relating to
detenu or drawing and adverse inference from the non-production thereof.

114. Material and information on which orders of preventive detention are

passed necessarily belong to a class of documents whose disclosure would
impair the proper functioning of public service and administration. The file
relating to a detention order must contain intelligence reports and like
information whose confidentiality is beyond reasonable question. This was
the view taken in the Liver-sidge case [1942] A. C. 206. See also Rogers
case [1973] A. C.1 388. If privilege were to be claimed in each case such a
claim would in terms of Sections 123 and 162 of the Evidence Act have been
invariably upheld. Article 22(6) also contemplates such claims on behalf of
the State. That is why instead of leaving it to individual decision in each
case or to the discretion of individual detaining authorities to make a claim

25-06-2021 (Page 31 of 305) www.manupatra.com SOAS Library Library

for privilege, the legislature has enacted Section 16A(9) providing for a
general exclusion from evidence of all such material as would properly fall
within the classification.

115. Section 16A cannot be said to be an amendment to Article 226. The

jurisdiction to issue writs is neither abrogated nor abridged. A claim of
privilege arises in regard to documents or information where a party to a
suit or proceeding is called upon to produce evidence. Section 16A(9) enacts
provisions analogous to a conclusive proof of presumption. Such a provision
is a genuine rule of evidence. It is in the nature" of an Explanation to
Sections 123 and 162 of the Evidence Act. Section 16A(9) is a rule of
evidence. therefore, when the detaining authority is bound by Section
16A(9) and forbidden absolutely from disclosing such material no question
can arise for adverse inference against the authority. If a detenu makes out
a prime facie case and the court calls for a return, the affidavit of the
authority will be an answer. The Court cannot insist on the production of the
file or hold that the case of the detenu stands unrebutted by reason of such
non-disclosure. To hold otherwise would be to induce reckless averments of
malafides to force production of the file which is forbidden by law.

116. Section 16A(9) cannot be read down implying an exception in favour of

disclosure to the Court as was suggested by the Bombay High Court
(Nagpur Bench). Such disclosure to the court alone and not to the detenu
will introduce something unknown to judicial procedure. This will bring in an
element of arbitrariness and preclude both parties from representing their
respective cases. Further, it would substitute or super-impose satisfaction of
the Court for that of the Executive. This Court has held that the view of the
detaining authority is not to be substituted by the view of the court. (See
State of Bombay v. Atma Ram Sridhar Vaidya MANU/SC/0015/1951 :
1951CriLJ373 , Shibban Lal Sak-sena v. The State of Uttar Pradesh and Ors.
MANU/SC/0016/1953 : [1954]1SCR418 , Rameshwar Shaw v. District
Magistrate, Burdwan and Anr. MANU/SC/0041/1963 : 1964CriLJ257 ,
Jaichand Lal v. W. Bengal MANU/SC/0051/1966 : [1966] Supp. S. C. R. 464,
and Ram Manohar Lohia's case (supra).

117. The theory of good return mentioned in the English decisions is based
on the language of Habeas Corpus Act and the Rules of the Supreme Court
of England. The practice of our Court is different. The respondents relied on
M. M. Damnoo v. J. & K. State MANU/SC/0175/1972 : 1972CriLJ597 in
support of the proposition that the file was produced there and also
contended that Section 16A(9) can be struck down as happened in A, K.
Gopalan's case (supra) where Section 14 of the Preventive Detention Act

25-06-2021 (Page 32 of 305) www.manupatra.com SOAS Library Library

was struck down. When A. K. Gopalan's case (supra) was decided Article 22
was in force. Prevention of court from seeing the grounds contravened
Article 22. There was no question of privilege. Section 14 of the Preventive
Detention Act in A. K. Gopalan's case (supra) offended Article 22. (See A. K.
Gopalan's case MANU/SC/0012/1950 : 1950CriLJ1383 .

118. In Damnoo's case (supra) there was no question of privilege. The file
was produced but there was no direction of the court to produce the file.
Second. There was no aspect of Article 359. Third. In Damnoo's case
(supra) the analogy of Section 14 of the Preventive Detention Act in
Gopalan's case was considered. No provision like Section 16A(9) was on the
scene. Fourth, The State did not rely on the proviso to Section 8 of the
relevant Act there to contend that the file could not be produced.

119. Section 16A(9) of the Act contains definite indications of implied

exclusion of judicial review on the allegations of malafide. It is not possible
for the court to adjudicate effectively on malafides. The reason why Section
16A has been enacted is to provide for periodical review by Government and
that is the safeguard against any unjust or arbitrary exercise of power.

120. It will be useless to attempt to examine the truth of the fact alleged in
the order in a case when the fact relates to the personal belief of the
relevant authority formed at least partly on grounds which he is not bound
to disclose. It is not competent for the court to decide whether the
impugned order of detention under Section 3(1) or the declaration under
Section 16A(2) and (3) of the Act during the emergency is a result of malice
or ill-will. The reason is that it is not at all possible for the court to call for
and to have a look at the grounds of the order of detention under Section
3(1) or the declaration under Section 16A(2) and (3) of the Act that induced
the satisfaction in the mind of the detaining authority that it was necessary
to detain the person or to make a declaration against him.

121. The grounds of detention and any information or materials on which

the detention and the declaration were made are by Section 16A(9) of the
Act confidential and deemed to refer to matters of State and to be against
public interest to disclose. No one under the provisions of the Act and in
particular Section 16A(9) thereof shall communicate or disclose such
grounds, materials or information except as provided in Section 16A(5) and
(8) of the Act. Sub-sections (5) and (8) have no application in these cases.
The court cannot strike down the order as vitiated by malafide and grant
relief since it is not possible for the court without the examination of such
grounds, materials and information to decide whether the order of detention

25-06-2021 (Page 33 of 305) www.manupatra.com SOAS Library Library

is the result of malice or ill-will. When the court cannot give any relief on
that basis the contention of malafides is not only ineffective but also
untenable. (See Lawrence Joachim Joesph D 'Souza v. The State of Bombay
MANU/SC/0007/1956 : 1956CriLJ935

122. The provision for periodical review entrusted to the Government under
Section 16A(4) of the Act in the context of emergency provides a .sufficient
safeguard against the misuse of power of detention or arbitrary malafide
detention during the emergency. The Government is in full possession of the
grounds, materials and information relating to the individual detentions
while exercising the power of review.

123. The jurisdiction of the court in tunes of emergency in respect of

detention under the Act is restricted by the Act because the Government is
entrusted with the task of periodical review. Even if the generality of the
words used in Section 3(1) of the Act may not be taken to show an intention
to depart from the principle in ordinary times that the courts are not
deprived of the jurisdiction where bad faith is involved, there are ample
indications in the provisions of the Act, viz., Section 16A(2), proviso to
Section 16A(3), Section 16A(4), Section 16A(5), Section 16A(7)(ii) and
Section 16A(9) of the Act to bar a challenge to the detention on the basis of
malafides. (See Smith v. East Elloe Rural District Council and Ors. [1956]
A.C. 736 and Ram Manohar Lohia's case (supra) at 716, 732). This Court
said that an action to decide the order on the grounds of malafides does not
lie because under the provisions no action is maintainable for the purpose.
This Court also referred to the decision in the Liver-sidge case (supra) where
the Court held that the jurisdiction of the court was ousted in such way that
even questions of bad faith could not be raised.

124. The production of the order which is duly authenticated constitutes a

peremptory answer to the challenge. The onus of showing that the detaining
authority was not acting in good faith is on the detenu. This burden cannot
be discharged because of the difficulty of proving bad faith in the exercise of
subjective discretionary power vested in the administration. De Smith in ins
Judicial Review of Administrative Actions 1973 Edition at page 257 scq. has
said that the reservation for the case of bad faith in hardly more than a
formality. Detenu will have to discharge the impossible burden of proof that
the detaining authority did not genuinely believe he had reasonable cause.

125. In Lawrence Joachim Joseph D' Souza's. case (supra) malafide exercise
of power was untenable having regard to the grounds on . which detention
was based. In the context of emergency Section 3(1) of the Act confers an

25-06-2021 (Page 34 of 305) www.manupatra.com SOAS Library Library

unlimited discretion which cannot be examined by courts.. This rule of
construction of the phrases "is satisfied", "in the opinion of", "it appears to
be", "has reason to believe" adopted by courts in tunes of national
emergency will be rendered nugatory and ineffective if allegations of
malafides are gone into. A distinction is to be drawn between purpose and
motive so that where an exercise of power fulfils the purpose for which
power was given, it does not matter that he who exercised it is influenced
by an extraneous motive because when an act is done which is authorised
by the Legislature it is not possible to contest that discretion. So long as the
authority is empowered by law action taken to realise that purpose is not
malafide. when the order of detention is on the face of it within the power
conferred, the order is legal.

126. The width and amplitude of the power of detention under Section 3 of
the Act is to be adjudged in the context of the emergency proclaimed by the
President. The Court cannot compel the detaining authority to give the
particulars of the grounds on which he had reasonable cause to believe that
it was necessary to exercise this control. An investigation into facts or
allegations of facts based on malafides is not permissible because such a
course will involve advertence to the grounds of detention and materials
constituting those grounds which is not competent in the context of the
emergency.

127. For the foregoing reasons the conclusions are as follows :--

First. In view of the Presidential Order dated 27 June, 1975 under

Clause (1) of Article 359 of our Constitution no person has locus
standi to move any writ petition under Article 226 before a High
Court for habeas corpus or any other writ or order or direction to
enforce any right to personal liberty of a person detained under the
Act on the grounds that the order of detention or the continued
detention is for any reason not under or in compliance with the Act
or is illegal or malafide.

Second. Article 21 is the sole repository of rights to life and

personal liberty against the State. Any claim to a writ of habeas
corpus is enforcement of Article 21 and, is, therefore, barred by the
Presidential Order.

Third. Section 16A(9) of the Act is valid. It is a rule of evidence and

it is not open either to the detenu or to the court to ask for grounds
of detention.

25-06-2021 (Page 35 of 305) www.manupatra.com SOAS Library Library

 Fourth. It is not competent for any court to go into questions of
malafides of the order of detention or ultra vires character of the
order of detention or that the order was not passed on the
satisfaction of the detaining authority.

128. The appeals are accepted. The judgments of the High Courts are set
aside.

H.R. Khanna, J.

129. Law of preventive detention, of detention without trial is an anathema

to all those who love personal liberty. Such a law makes deep inroads into
basic human freedoms which we all cherish and which occupy prime position
among the higher values of life. It is, therefore not surprising that those
who have an abiding faith in the rule of law and sanctity of personal liberty
do not easily reconcile themselves with a law under which persons can be
detained for long periods without trial. The proper forum for bringing to
book those alleged to be guilty of the infraction of law and commission of
crime, according to them, is the court of law where the correctness of the
allegations can be gone into in the light of the evidence adduced at the trial.
The vesting of power of detention without trial in the executive, they assert,
has the effect of making the same authority both the prosecutor as well as
the judge and is bound to result in arbitrariness.

130. Those who are entrusted with the task of administering the land have
another viewpoint. According to them, although they are conscious of the
value of human liberty, they cannot afford to be oblivious of the" need of the
security of the State or the maintenance of public order. Personal liberty has
a value if the security of the State is not jeopardised and the maintenance
of public order is not threatened. There can be the administrator assert, no
freedom to destroy freedom. Allegiance to ideals of freedom cannot operate
in vacuum. Danger lurks and serious consequences can follow when
thoughts become encysted in fine phrases oblivious of political realities and
the impact of real politik. No government can afford to take risks in matters
relating to the security of the State. Liberty, they accordingly claim, has to
be measured against community's need for security against internal and
external peril.

131. It is with a view to balancing the conflicting viewpoints that the

framers of the Constitution made express provisions for preventive
detention and at the same time inserted safeguards to prevent abuse of
those powers and to mitigate the rigour and harshness of those provisions.

25-06-2021 (Page 36 of 305) www.manupatra.com SOAS Library Library

The dilemma which faced the Constitution makers in balancing the two
conflicting viewpoints relating to liberty of the subject and the security of
the State was not, however, laid to rest for good with the drafting of the
Constitution. It has presented itself to this Court in one form or the other
ever since the Constitution came into force. A, K. Gopalan's
MANU/SC/0012/1950 : 1950CriLJ1383 was the first case wherein a Bench of
six Judges of this Court dealt with the matter. Another Bench of seven
Judges again dealt with the matted in 1973 in the case of Shambu Nath
Sarkar v. State of West Bengal and Ors. MANU/SC/0163/1973 :
[1974]1SCR1 . In between, a number of Benches have dealt with the
various facets of the question. One such facet has now presented itself to
this Constitution Bench.

132. The question posed before us is whether in view of the Presidential

order dated June 27, 1975 under Clause (1) of Article 359 of the
Constitution, any petition under Article 226 before a High Court for writ of
habeas corpus to enforce the right of personal liberty of a person detained
under the Maintenance of Internal Security Act, 1971 (Act 26 of 1971)
(hereinafter referred to as MISA) as amended is maintainable. A
consequential question which may be numbered as question No. 2 is, if such
a petition is maintainable, what is the scope or extent of judicial scrutiny.
The above questions arise in criminal appeals Nos. 279 of 1975, 355 and
356 of 1975, 1845-49 of 1975, 380 of 1975, 1926 of 1975, 389 of 1975, 3
of 1976, 41 of 1976 and 46 of 1976. These appeals have been filed against
the orders of Madhya Pradesh High Court, Allahabad High Court, Karnataka
High Court, Delhi High Court, Nagpur Bench of Bombay High Court and
Rajasthan High Court whereby the High Courts repelled the preliminary
objections relating to the maintainability of petitions under Article 226 for
writs of habeas corpus on account of 'Presidential order dated June 27,
1975. On the second question, some of the High Courts expressed the view
that this was a matter which would be gone into while dealing with
individual cases on their merits. The other High Courts went into the matter
and expressed their view. This judgment would dispose of all the appeals.

133. MISA was published on July 2, 1971. Section 2 of the Act contains the
definition clause. Section 3 grants powers to make orders for detaining
certain persons and reads as under:

3. (1) The Central Government of the State Government may,--

(a) if satisfied with respect to any person (including a

foreigner) that with a view to preventing him from acting in

25-06-2021 (Page 37 of 305) www.manupatra.com SOAS Library Library

 any manner prejudicial to--

(i) the defence of India, the relations of India with

foreign powers, or the security of India, or

(ii) the security of the State or the maintenance of

public order, or

(iii) the maintenance of supplies and services

essential to the community, or

(b) if satisfied with respect to any foreigner that with a

view to regulating ins continued presence in India or with a
view to making arrangements for ins expulsion from India,

it is necessary so to do,, make an order directing that such

person be detained.

(2) Any of the following officers, namely :--

(a) district magistrates,

(b) additional district magistrates specially empowered in

this behalf by the State Government,

(c) Commissioners of Police, wherever they have been

appointed,

may, if satisfied as provided in Sub-clauses (ii) and (iii) of

Clause (a) of Sub-Section (1),, exercise the power
conferred by the said Sub-section.

(3) When any order is made under this section by an officer

mentioned in Sub-section (2), he shall forthwith report the fact to
the State Government to which he is subordinate together with the
grounds on which the order has been made and such other
particulars as in ins opinion have a bearing on the matter, and; no
such order shall remain in force for more than twelve days after the
making thereof unless in the meantime it has been approved by the
State Government:

Provided that where under Section 8 the grounds of

detention are communicated by the authority making. the

25-06-2021 (Page 38 of 305) www.manupatra.com SOAS Library Library

 order after five days but not later than fifteen days from
the date of detention, this Sub-section shall apply subject
,to the modification that for the words 'twelve days', the
words 'twenty-two days' shall be substituted.

(4) When any order is made or approved by the State Government

under this section, the State Government shall Within seven days,
report the fact to the Central Government together with the
grounds on which the order has been made and such other
particulars as in the opinion of the State Government have a
bearing on the necessity for the order.

Section 4 and 5 deal respectively with execution of detention orders and the
power to regulate place and conditions of detention. According to Section 6,
detention orders are not to be invalidated or inoperative on the ground that
the person to be detained is outside the limits of the territorial jurisdiction of
the Government or officer making the order' or that the place of detention of
such person is outside the said limits. Section 8 requires that the grounds of
order of detention should be disclosed to persons affected by the order and
he should be granted the earliest opportunity of making a representation
against the order. Section 9 deals with the Constitution of Advisory Boards.
Section 10 makes provision for reference to Advisory Boards. Section 11
prescribes the procedure of Advisory Boards and section 12 requires that
action should be taken in accordance with the report of the Advisory Board.
According to section 13, the maximum period of detention shall be 12
months from the date of detention. Section 14 confers power of revocation
of detention orders. Section 15 confers power upon the appropriate
Government to temporarily release the detained persons. Section 16 gives
protection to action taken in good faith. Section 17 provides for detention up
to two years in certain cases of foreigners. Section 18, which has
subsequently been re-numbered as Section 19, provides for the repeal of
the Maintenance of Internal Security Ordinance and the saving clause.

134. According to Clause (1) of Article 352 of the Constitution, if the

President is satisfied that a grave emergency exists whereby the security of
India or of any part of the territory thereof is threatened, whether by war or
external aggression or internal disturbance, he may, by Proclamation, make
a declaration to that effect. On December 3,, 1971 the President of India
issued the following proclamation of emergency:

In exercise of the powers conferred by Clause (1) of Article 352 of

the Constitution, I, V. V. Giri, President of India; by this

25-06-2021 (Page 39 of 305) www.manupatra.com SOAS Library Library

 Proclamation declare that a grave emergency exists whereby the
security of India is threatened by external aggression.

V. V. Giri
President
Clause (1) of Article 359 of the Constitution reads as under:

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.

On November 16, 1974 the President of India made the following order:

In exercise of the powers conferred by Clause (1) of article 359 of

the Constitution, the President hereby declares that--

(a) the right to move any count with respect to orders of

detention which have already been made or which may
hereafter be made under Section 3(1) (c) of the
Maintenance of Internal Security Act, 1971 as amended by
Ordinance 11 of 1974, for the enforcement of the rights
conferred by Article 14, Article 21 and Clauses (4), (5), (6)
and (7) of Article 22 of the Constitution, and

(b) all proceedings pending in any court for the

enforcement of any of the aforesaid rights with respect of
orders of detention made under the said Section 3(D(c)'

shall remain suspended for a period of six months from the date of
issue of this Order or the period during which the Proclamation of
emergency issued under Clause (1) of Article 352 of the
Constitution on the 3rd December, 1971, is in force, whichever
period expires earlier.'

2. This Order shall extend to the whole of the territory of India.

On June 20, 1975 the President of India amended the above order by
substituting twelve months" for "six months" in the order. On June 25, 1975

25-06-2021 (Page 40 of 305) www.manupatra.com SOAS Library Library

the President of India issued another proclamation of emergency and the
same reads as under:

PROCLAMATION OF EMERGENCY

In exercise of the powers conferred by Clause (1) of Article 352 of

the Constitution, I Fakhruddin Ali Ahmed, President of India, by this
Proclamation declare that a grave emergency exists whereby the
security of India is threatened by internal disturbance.

Sd/- F. A. Ahmed
President
New Delhi
the 25th June, 1975

On June 27, 1975 the President of India made the following order:

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 (including a foreigner) to move any court for the
enforcement of the rights conferred by Article 14, Article 21 and
Article 22 of the Constitution and all proceedings pending in any
court for the enforce-men of the above mentioned rights shall
remain suspended for the period during which the Proclamation of
emergency made under Clause (1) of Article 352 of the Constitution
on the 3rd December, 1971 and on the 25th June, 1975 are both in
force.

This Order shall extend to the whole of the territory of India except
the State of Jammu and Kashmir.

This Order shall be in addition to and not in derogation of any Order

made before the date of this order under Clause (1) of Article 359
of the Constitution.

On June 29, 1975 another order was issued by the President whereby the
words "except the State of Jammu & Kashmir" in the order dated June 27,
1975 were omitted. On September 25, 1975 another Presidential order was
issued as a result of which the last paragraph in the Presidential order dated
June 27, 1975 was omitted.

135. By Act 39 of 1975 Section 16A was introduced in MISA with effect from
June 29, 1975 and the same reads as under:

25-06-2021 (Page 41 of 305) www.manupatra.com SOAS Library Library

 16A. (1) Notwithstanding anything contained in this Act or any rules
of natural justice, the provisions of this section shall have effect
during the period of operation of the Proclamation of emergency
issued under Clause (1) of Article 352 of the Constitution on the 3rd
day of December, 1971 or the Proclamation of emergency issued
under that clause on the 25th day of June, 1975, or a period of
twelve months from the 25th day of June, 1975, whichever period
is the shortest.

(2) The case of every person (including a foreigner) against whom

an order of detention was made under this Act on or after the 25th
day of June, 1975, but before the commencement of this section,
shall, unless such person is sooner released from detention, be
reviewed within fifteen days from such commencement by the
appropriate Government for the purpose of determining whether
the detention of such person under this Act is necessary for dealing
effectively with the emergency in respect of which the
Proclamations referred to in Sub-section (1) have been issued
,hereinafter in this section referred to as the emergency) and if, on
such review, the appropriate Government is satisfied that it is
necessary to detain such person for effectively dealing with the
emergency, that Government may make a declaration to that-
effect and communicate a copy of the declaration to the person
concerned.

(3) When making an order of detention under this Act against any
person (including a foreigner) after the commencement of this
section, the Central Government or the State Government or, as the
case may be, the officer making the order of detention shall
consider whether the detention of such person under this Act is
necessary for dealing effectively with the emergency and if, on such
consideration, the Central Government or the State Government or,
as the case may be, the officer is satisfied that it is necessary to
detain such person for effectively dealing with the emergency, that
Government or officer may make a declaration to that effect and
communicate a copy of the declaration to the person concerned:

Provided that where such declaration is made by an officer,

it shall be reviewed by the State Government to which such
officer is subordinate within fifteen days from the date of
making of the declaration and such declaration shall cease
to have effect unless it is confirmed by the State

25-06-2021 (Page 42 of 305) www.manupatra.com SOAS Library Library

 Government, after such review, within the said period of
fifteen days.

(4) The question whether detention of any person in respect of

whom a declaration has been made under Sub-section (2) or Sub-
section (3) continues to be necessary for effectively dealing with
the emergency shall be reconsidered by the appropriate
Government within four months from the date of such declaration
and thereafter at intervals not exceeding four months and if, on
such re-consideration, it appears to the appropriate Government
that the detention of the person is no longer necessary for
effectively dealing with the emergency, that Government may
revoke the declaration.

(5) In making any review, consideration or reconsideration under

Sub-sections(2), (3) or (4), the appropriate Government or officer
may, if such Government or officer considers it to be against public
interest to do otherwise act on the basis of the information and
materials in its or ins possession without disclosing the facts or
giving an opportunity of making a representation to the person
concerned.

(6) In the case of every person detained under a detention order to

which the provisions of Sub-section (2) apply, being a person the
review of whose case is pending under that Sub-section or in
respect of whom a declaration has been made under that Sub-
section,--

(i) Section 8 to 12 shall not apply; and

(ii) Section 13 shah" apply subject to the modification that

the words and figures 'which has been confirmed under
Section 12' shall be omitted.

(7) In the case of every person detained under a detention order to

which the provisions of Sub-section (3) apply' being a person in
respect of whom a declaration has been made under that Sub-
section,--

(i) Section 3 shall apply subject to the modification that for

Sub-sections (3) and (4) thereof,, the following Sub-section
shall be substituted, namely:--

25-06-2021 (Page 43 of 305) www.manupatra.com SOAS Library Library

 (3) when order of detention is made by a State
Government or by an officer subordinate to it, the
State Government shall, within twenty days,
forward to the Central Government a report in
respect of the order;

(ii) Section 8 to 12 shall not apply; and

(iii) Section 13 shall apply subject to the modification that

the words and figures 'which has been confirmed under
Section 12' shall be omitted.

Act 39 of 1975 also inserted Section 18 with effect from June 25, 1975 and
the same reads as under:

18. No person (including a foreigner) detained under this Act shall

have any right to personal liberty by virtue of natural law or
common law, if any.

136. By the Constitution (Thirty-eighth Amendment) Act, 1975 Clauses (4)

and (5) which read as under were added in Article 352 of the Constitution:

(4) The power conferred on the President by this article shall

include the power to issue different Proclamation on different
grounds, being war or external aggression or internal disturbance or
imminent danger of war of external aggression or internal
disturbance, whether or not there is a Proclamation already issued
by the President under Clause (1) and such Proclamation is in
operation.

(5) Notwithstanding anything in this Constitution,--

(a) the satisfaction of the President mentioned in Clause

(1) and Clause (2) shall be final and conclusive and shall
not be questioned in any court on any ground;

(b) subject to the provisions of Clause (2), neither the

Supreme Court nor any other court shall have jurisdiction
to entertain any question, on any ground, regarding the
validity of--

(i) a declaration made by Proclamation by the

President to the effect stated in Clause (1); or

25-06-2021 (Page 44 of 305) www.manupatra.com SOAS Library Library

 (ii) the continued operation of such Proclamation.

Following Clause (1A) was also added after Clause (1) of Article 359 and the
same reads as under:

(1A) While an order made under Clause (1) mentioning any of the
rights conferred by Part III is in operation, nothing in that Part
conferring those rights shall restrict the power of the State as
defined in the said Part 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 incompetence, cease to have effect as
soon as the order aforesaid ceases to operate, except as respects
things done or omitted to be done before the law so ceases to have
effect.

The Constitution (Thirty-ninth Amendment) Act, 1975 was published on

August 10, 1975 and inserted the Maintenance of Internal Security Act,
1971 as item 92 in the Ninth Schedule to the Constitution.

137. On October 17, 1975 Ordinance 16 of 1975 was issued making further
amendment in Section 16A of MISA and the same read as under:

(a) for Sub-section (5), the following Sub-section shall be

substituted, namely:--

(5) In making any review, consideration or re-consideration

under Sub-section (2), Sub-section (3) or Sub-section (4),
the appropriate Government or officer may act on the basis
of the information and materials in its or ins possession
without communicating or disclosing any such information
or materials to the person concerned or affording him any
opportunity of making any representation against the
making under Sub-section (2), or the making or confirming
under Sub-section (3), or the non-revocation under Sub-
section (4), of the declaration in respect of him;

(b) in Sub-section (7), in Clause (i),--

(i) in the opening portion, for the words 'the following Sub-
section', the words 'the following' shall be substituted;

25-06-2021 (Page 45 of 305) www.manupatra.com SOAS Library Library

 (ii) in Sub-section (3), as substituted by that clause, for the
words 'forward to the Central Government a report in
respect of the order', the words 'report the fact to the
Central Government' shall be substituted;

(iii) after Sub-section (3) aforesaid, the following shall be

inserted, namely:

(4) At any time after the receipt of a report under

Sub-section (3), the Central Government may
require the State Government to furnish to the
Central Government the grounds on which the
order has been made and such other particulars
as, in the opinion of the State Government, have a
bearing on the necessity for the order.;

(c) after Sub-section (7), the following Sub-sections shall be

inserted, namely:

(8) in the case of any person in respect of whom a

declaration has been made by a State Government under
Sub-section (2) or a declaration has been made by a State
Government or an officer subordinate to it or confirmed by
the State Government under Sub-section (3), or a
declaration has not been revoked by a State Government
under Sub-section (4), the Central Government may,
whenever it considers it necessary so to do, require the
State Government to furnish to the Central Government the
information and materials on the basis of which such
declaration has been made or confirmed, or not revoked,
as the case may be, and such other information and
materials as the Central Government may deem necessary.

(9) Notwithstanding anything contained in any other law or

any rule having the force of law,--

(a) the grounds on which an order of detention is

made under Sub-section (1) of Section 3 against
any person in respect of whom a declaration is
made under Sub-section (2) or Sub-section (3)
and any information or materials on which such
grounds or a declaration under Sub-section (2) or
a declaration or confirmation under Sub-section

25-06-2021 (Page 46 of 305) www.manupatra.com SOAS Library Library

 (3) or the non-revocation under Sub-section (4) of
a declaration are based, shall be treated as
confidential and shall be deemed to refer to
matters of State and to be against the public
interest to disclose and save as otherwise provided
in this Act, no one shall communicate or disclose
any such ground, information or material or any
document containing such ground, information or
material;

(b) no person against whom an order of detention

is made under Sub-section (1) of Section 3 shall
be entitled to the communication or disclosure of
any such ground, information or material as is
referred to in Clause (a) or the production to him
of any document containing such ground,
information or material.

138. On November 16, 1975 Ordinance 22 of 1975 was issued making

certain amendments in MISA. By Section 2 of the Ordinance the words
"twelve days" and "twenty days" in Sub-section (3) of Section 3 of MISA
were substituted by the words "twenty days" and "twenty-five days"
respectively. In Section 14 of the principal Act following Sub-section was
substituted for the original Sub-section:

(2) The expiry or revocation of a detention order (hereafter in this

Sub-section referred to as the earlier detention order) shall not bar
the making of another detention order (hereafter in this Sub-section
referred to as the subsequent detention order) under Section 3
against the same person:

Provided that in a case where no fresh facts have arisen

after the expiry or revocation of the earlier detention order
made against such person, the maximum period for which
such person, may be detained in pursuance of the
subsequent detention order shall, in no case, extend
beyond a period of twelve months from the date of
detention under the earlier detention order or until the
expiry of the Defence and Internal Security of India Act,
1971, whichever is later.

25-06-2021 (Page 47 of 305) www.manupatra.com SOAS Library Library

Following Sub-section (2A) was also inserted in Section 16A of the principal
Act:

(2A) If the State Government makes a declaration under Sub-

section (2) that the detention of any person in respect of whom a
detention order is made by an officer subordinate to that
Government is necessary for dealing effectively with the
emergency, the State Government shall be deemed to have
approved such detention order and the provisions of Sub-section
(3) of Section 3, in so far as they relate to the approval of the State
Government, and of Sub-section (4) of that section, shall not apply
to such detention order.

The amendments made by the Ordinance were given retrospective effect for
the purpose of validating all acts done previously.

139. During the pendency of these appeals, the Maintenance of Internal

Security (Amendment) Act, 1976 (Act 14 of 1976) was published on January
25, 1976. This amending Act incorporated and in some respects modified
the changes which had been brought about in the principal Act by ordinance
16 of 1975 and ordinance 22 of 1975. Section 2 and 3 of the amending Act
incorporate the changes which had been introduced by Sections 2 and 3 of
Ordinance 22 of 1975. At the same "time sections 2 and 3 of the amending
Act make it clear that substitution brought about by those sections shall be
with effect from June 29, 1975. Sections 4, 5 and 6 of the amending Act
read as under:

4. In Section 16A of the principal Act,--

(a) after Sub-section (2), the following Sub-section shall be

inserted, and shall be deemed to have been inserted with
effect from the 29th day of June, 1975, namely:--

(2A) If the State Government makes a declaration

under Sub-section (2) that the detention of any
person in respect of whom a detention order is
made by an officer-subordinate to that
Government is necessary for dealing effectively
with the emergency, the State Government shall
be deemed to have approved such detention order
and the provision of Sub-section (3) of Section 3,
in so far as they relate to, the approval of the

25-06-2021 (Page 48 of 305) www.manupatra.com SOAS Library Library

 State Government, and of Sub-section (4]I of 'that
section, shall not apply to such detention order.;

(b) for Sub-section (5), the following Sub-section shall be

substituted, and shall be deemed to have been substituted
with effect' from the 29th day of June, 1975, namely:--

(5) In making any review, consideration or

reconsideration under Sub-section (2), Sub-section
(3) or Sub-section (4), the appropriate
Government or officer may act on the basis of the
information and materials in its .or ins possession
without communicating or disclosing any such
information or materials to the person concerned
or affording, him any, opportunity of making any
representation against the making under Sub-
section (2), or the making or confirming under
Sub-section (3), or the non-revocation under Sub-
section (4), of the declaration in respect of him;

(c) in subjection (7), in Clause (i),--

(i) in the opening portion, for the words the

following Sub-section', the words 'the following'
shall be substituted; and shall be deemed to have
been substituted with effect from the 29th day of
June, 1975;

(ii) in Sub-section (3), as substituted by that

clause, for the words 'forward to the Central
Government a report in respect of the order', die
words 'report the fact to the Central Government'
shall be substituted, and shall be deemed to have
been substituted with effect from the 29th day of
June, 1975;

(iii) after Sub-section (3) aforesaid, the following

shall be inserted, and shall be deemed to have
been inserted with effect from the 17th day of
October, 1975 namely:--

(4) At any time after the receipt of a report under

Sub-section (3), the Central Government may

25-06-2021 (Page 49 of 305) www.manupatra.com SOAS Library Library

 require the State Government to furnish to the
Central Government the grounds on which the
order has been made and such other particulars
as, in the opinion of the State Government, have a
bearing on the necessity for the order.

(d) after Sub-section (7),' the following Sub-sections shall:

be; inserted, and shall be, deemed to have been inserted
with effect from the 29th day of June, 1975; namely--

(8) In the case of any person in respect of whom a

declaration has been made by a State Government
under Sub-section (2) or a declaration has been
made by a State Government or an officer
subordinate to it or confirmed by the State
Government under Sub-section (3) , or a
declaration has not been revealed by a state
Government under Sub- section (4), the Central
Government may, whenever it considers it
accessory so to do, require the State Government
to furnish to the Central Government the
information and materials on the basis of which
such declaration has been made or confirmed, or
not revoked as the case may be, and such other
information and materials as the Central
Government may deem necessary.

(9) Notwithstanding anything contained in any

other law or any rule having the force of law,--

(a) the grounds on which an order of detention is

made or purported to be made under Section 3
against any person in respect of whom a
declaration is made under Sub-section (2) or Sub-
section (3) and any information or materials on
which such grounds or a declaration under Sub-
section (3) or the non-revocation under Sub-
section (4) of a declaration are based, shall be
treated as confidential and shall be deemed to
refer to matters of State and to be against the
public interest to disclose and save as otherwise
provided in this Act, no one shall communicate or

25-06-2021 (Page 50 of 305) www.manupatra.com SOAS Library Library

 disclose any such ground, information or material
or any document containing such ground,
information or material;

(b) no person against whom an order of detention

is made or purported to be made under Section 3
shall be entitled to the communication or
disclosure of any such ground, information or
material as is referred to in Clause (a) or the
production to him of any document containing such
ground, information or material.

5. In Section 18 of the principal Act, for the words 'detained under

this Act', the words and figure 'in respect of whom an order is made
or purported to be made under Section 3 shall be substituted, and
shall be deemed to have been substituted with effect from the 25th
day of June, 1975.

6. Any act or thing done or purporting to have been done; before

the 16th day of November, 1975, under the principal Act in respect
of any person against whom an order of detention was made under
that Act on or after the 25th day of June, 1975 or m respect of any
such order of detention shall, for all purposes, be deemed to be as
valid and effective as if the amendments made to the principal Act
by Sections 2 and 3, and Clause (a) of Section 4, of this Act had
been in force at all material times.

140. During the pendency of these petitions under Article 226 of the
Constitution of India before the High Courts for issue of writs of habeas
corpus, it was contended on behalf of the Union of India and the States that
view of the Presidential order dated June 27, 1975 under Article 359
suspending the right of all persons to move any court for the enforcement of
the enforcement of the rights conferred by articles 14, 21 and 22 of the
Constitution, petitions for issue of writs of habeas corpus were not
maintainable. Particular stress Was laid upon the fact that the right to move
the court for enforcement of the right under Article 21 had been suspended
and such no petition for a writ of habeas corpus could be preceded with. The
above mentioned presidential order was stated to be an absolute bar to the
judicial security of the detention orders. This contention did not find favour
with the High Court and they held that despite the said Presidential order
the petitions were maintainable and could be proceeded with. Although
opinions were not unanimous on the point as to whether the High Court

25-06-2021 (Page 51 of 305) www.manupatra.com SOAS Library Library

should without examining on the point as to whether the case go into the
question of the area of the judicial scrutiny and if so, what was the area of
the judicial , all the nine High Courts which dealt with the matter came to
the conclusion that the Presidential order did not create an absolute bar to
the judicial scrutiny of the validity of the detention. The nine High Court are:

(1) Delhi

(2) Karnataka

(3) Bombay .(Nagpur Bench)

(4) Allahabad

(5) Madras

(6) Rajasthan

(7) Madhya Pradesh

(8) Andhra Pradesh

(9) Punjab and Haryana.

141. In these appeals before us, learned Attorney-General on behalf of the

appellants has drawn our attention, to the difference in phraseology of the
Presidential order; dated June ,21, 1975 and the earlier Presidential orders
dated November 3, 1962 and November 16, 1974 and has urged that in
view of the absolute nature of the Presidential order of June 27, 1975,
petition for a writ of habeas corpus is not maintainable.

142. There can be no doubt that the Presidential order dated June 27, 1975
has been worded differently compared to the earlier Presidential orders
which were issued under Clause (1) of Article 359 and that there has been a
departure from the pattern which used to be adopted while issuing such
orders. The Presidential order dated November 16, 1974 has already been
reproduced earlier. Presidential order dated November 3, 1962 issued under
Clause (1) of Article 359 of the Constitution redd as under:

ORDER

New Delhi the 3rd November, 1962

25-06-2021 (Page 52 of 305) www.manupatra.com SOAS Library Library

 G.S.R 1464--In exercise of the power 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 right 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 in 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.

On November 6, 1962, the rules framed under the Ordinance by the Central
Government were published. On November 11, 1962 the Presidential order
reproduced above was amended and for the words and figure "Article 21",
the words and figures "Articles 14 and 21" were substituted. The Defence of
India Ordinance was subsequently replaced by the Defence of India Act and
the rules framed under the Ordinance were deemed to have been framed
under the Act. Perusal of the above Presidential order of 1962 shows that
what was suspended was the right of any person to move any court for-the
enforcement of rights conferred by Articles 14, 21 and 22. The suspension
was, however, conditioned by the circumstance that such person had been
deprived of such rights under the Defence of India Act or any rule or order
made thereunder. It was plain that in case a detention order was made or
any other action was taken not under the provisions of the Defence of India
Act or any rule or order made thereunder, the same could not enjoy the
protection of the Presidential order under Article 359. Another effect of the
Presidential order was that as long as the proclamation of emergency was in
force, the validity of the provisions of the Defence of India Act or the rules
or orders made thereunder could not be assailed on the ground of being
violative of Articles 14, 21 and 22. It is also clear that in view of Article 358,
while a proclamation of emergency was in operation, nothing in Article 19
could have restricted the power of the State to make any law or to take any
executive action which the State could but for the provisions contained in
Part III was competent to make or to take.

143. Likewise, under the Presidential order dated November 16, 1974 which
has been already reproduced earlier, what was suspended was the right to
move any court with respect to an order of detention which might have been
made or which might be made thereafter under Section 3(1) (c) of the
Maintenance of Internal Security Act as amended for the enforcement of
rights conferred by Articles 14, 21 and Clause (4) to (7) of Article 22 of the
Constitution. Proceedings pending in any court for the enforcement of any of
the aforesaid rights with respect to orders of detention made under Section

25-06-2021 (Page 53 of 305) www.manupatra.com SOAS Library Library

3(1)(c) too were suspended. It was plain from the language of the
Presidential order that there could be no suspension of the right mentioned
in the Presidential order if the detention order could not be shown to have
been made under Section 3(1)(c) of MISA because an order not under
Section 3(1)(c) was outside the Presidential order.

144. The Presidential order of 1962 under Article (1) of the Constitution
came to be considered by this Court in the case of Makhan Singh v. State, of
Punjab MANU/SC/0039/1963 : 1964CriLJ217 Gajenndragadkar, J. (as he
then was) speaking for out of the Bench of seven Judges of this Court
observed while dealing with the effect of the Presidential order on a petition
of habeas corpus:

We have already seen that the right to move any court which is
suspended by Article 359(1) and the Presidential order 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 ins detention order, the detenu is pleading any right
outside the rights specified in the order, ins right to move any court
in that behalf is not suspended, because it is outside Article 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 ins detention is illegal for the reason
that the mandatory provision of the Act have been contravened.
Such a plea is outside Article 359(1) and tile right of the detenu to
move for ins 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 ins 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 enough;
the detenu will have to prove the malafides; But if the malafides are
alleged, the detenu cannot be precluded from substantiating ins
plea on the ground of the bar created by Article 359(1) and the
Presidential order. That is another kind of plea which is outside the
purview of Article 359(1).

It was further observed:

25-06-2021 (Page 54 of 305) www.manupatra.com SOAS Library Library

 It is only in regard to that class of cases falling under Section
491(1) (b) where the legality of the detention is challenged on
grounds which fall under Article 359(1) and Presidential order that
the bar would operate. In all other cases falling under Section
491(1) the bar would be inapplicable and proceedings taken on
behalf of the detenu with 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 illustrations, 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 right specified in the said order. It is a
plea which is independent of the said rights and its validity must be
examined.

In the case of State of Maharashtra v. Prabhakar Pandurang Sangzgiri and

Anr. MANU/SC/0089/1965 : 1966CriLJ311 Subba Rao J, (as he then was)
speaking for the Constitution bench of this Court observed:

Article 358 of the Constitution suspends the provisions of Article 19,

of Part III of the Constitution during the period the proclamation of
emergency is in operation; and the order passed by the President
under Article 359 suspended the enforcement, inter alia, of Article
21 during the period of the said emergency. But the President's
order was a conditional one. In effect it said that the right to move
the High Court or the Supreme Court remained suspended if such a
person had been deprived of ins personal liberty under the Defiance
of India Act, 1962, or any rule or order made hereunder. If a person
was deprived of his personal liberty not under the Act or a rule or
order made thereunder but in contravention thereof, his right to
move the said Courts in that regard would not be suspended. The
question, therefore, in this case is whether the first respondent's
liberty, has been restricted in terms of the Defence of India Riles
whereunder he was detained. If it was in contravention of the said
Rules he would have the right to approach the High Court under
Article 226 of the Constitution.

25-06-2021 (Page 55 of 305) www.manupatra.com SOAS Library Library

Similar view was expressed in the case of Dr. Ram Manohar Lohia v. State of
Bihar and Ors. MANU/SC/0054/1965 : 1966CriLJ608 Sarkar J. (as be then
was) in that case observed that where a person was detained in violation of
the mandatory provisions of the Defence of India Act, his right to move the
court was not suspended. Hidayatuilah and Bachawat JJ. referred to the fact
that the Presidential order did not say that even if a person; was proceeded
against in breach of the Defence of India" Act or the rules, he could not
move the court or complain that the Act and the Rules under colour of which
some action was taken did not warrant it. The Presidential order was held to
have not intended to condone an illegitimate enforcement of the Defence of
India Act, Raghubar Dayal J. held that the Court could go into the question
as to whether the District Magistrate exercised the power of detention under
the Defence of India Rules bonaflde and in accordance with the rules.
MudhoBkar J. observed that if a detenu contends that the order, though it
purports to be under Rule 30(1) of the Defence of India Rules, was not
competently made, this Court had a duty to enquire into the matter. Sarkar,
Hidayatuilah, Mudholkar and Bachawat JJ, on consideration of the material
before them found that as the detention order had been made with a view
to present the detenu from acting in a manner prejudicial to the
maintenance of law and older and not public order, as contemplated by Rule
30, the detention, order was not in conformity with law. The petitioner in
that case was accordingly directed to be set at liberty.

145. The observations in the cases referred to-above show that the validity
of the detention orders could be assailed despite the Presidential orders of
1962 and 1974 under Article 359 in case the right relied upon was not one
covered by these Presidential orders. The protection .afforded by those
Presidential of derswa net absolute, it was conditional and confined to ruling
out the challenge to detention orders and other actions taken under the
provisions mentioned in those Presidential orders on the score of
contravention of the Articles specified in those orders. If the detention of a
detenu was not in accordance with the previsions mentioned in the
Presidential -orders, the Presidential orders did not have the, effect of
affording protection to the detention order and it was permissible to
challenge the validity of the detention on the ground that it had not been
made under the specified provisions but in, contravention, of those
provisions.

146. We may now deal with the Presidential order dated June 27, 1975 with
which we are concerned. Unlike the Presidential orders under Clause (1) of
Article 359 issued earlier, this Presidential order makes no reference to any
detention order made under any specified provision. It seeks to impose a

25-06-2021 (Page 56 of 305) www.manupatra.com SOAS Library Library

blanket suspension of the right of any person, including a foreigner, to move
any court for the enforcement of the rights conferred by Articles 14, 21 and
22 of the Constitution and of all proceedings pending to, any court for the,
enforcement of the above mentioned rights for tile period during which the
proclamation of emergency is in force. The observations which were made
by this Court in the cases referred to above in the context of the
phraseology of the earlier Presidential orders of 1962 and 1974, namely, the
detention orders made under specified provisions, cannot now be relied
upon while construing the ambit of the Presidential order o£ June 27, 1975.

147. The difference in phraseology 08 the Presidential order dated June 27,
1975 and that of the earlier Presidential orders would not, however, justify
the conclusion that because of the new Presidential order dated June 27,
1975 a detention order need not comply with the requirements of the law
providing for preventive detention. Such a detention order would still be
liable to be challenged in a court on the ground that it does not comply with
the requirement of law for preventive detention if ground for such challenge
be permissible in spite of and consistently with the new Presidential order.
The effect of the change in phraseology would only be that such of the
observations which were made in the cases mentioned above in the context
of the language of the earlier Presidential orders cannot now be relied upon.
Reliance, however, can still be placed upon the observations made in those
cases which were not linked with the phraseology of the earlier Presidential
orders.

148. Question then arises as to what is the effect of the suspension of the
right of a person to move any court for the enforcement of rights conferred
by Articles 14, 21 and 22 of the Constitution, One obvious result of the
above is that no one can rely upon Articles 14, 21 and 22 with a view to
seek relief from any court. According to the stand taken by the learned
Attorney General, the effect of the suspension of the right of a person to
move any court for the enforcement of the right conferred by Article 21 is
that even if the order for detention has been made- without the authority of
law, no redress can be sought from the court against such detention order.
Article 21 of the Constitution reads as under:

No person shall be deprived of ins life or personal liberty except

according to procedure established by law.

It is urged that Article 21 is the sole repository of one's right to life or

personal liberty. The moment the right to move any court for enforcement of
Article 21 is suspended, no one can, according to the submission, complain

25-06-2021 (Page 57 of 305) www.manupatra.com SOAS Library Library

to the court of deprivation of life or personal liberty for any redress sought
from the court on that score would be enforcement of Article 21. Petition
under Article 226 for the issue of a writ of habeas corpus, it is contended by
learned Attorney General, is essentially a petition to enforce the right of
personal liberty and as the right to move any court for the enforcement of
the right conferred by Article 21 is suspended, no relief can be granted to
the petitioner in such petition.

149. In order to assess the force of the above argument, it may be

necessary to give the background and the in story of Article 21. In the
original draft of the Indian Constitution, in the Article which now stands as
Article 21 the words used were "in accordance with due process of law"
instead of the words "according to procedure established by law." The
concept of expression "due process of law" or its equivalent "law of the land"
traces its lineage for back into the beginning of the 13th century A.D. The
famous 39th chapter of the Magna Carta provides that "no free man shall be
taken or imprisoned or disseized, or outlawed or exiled or in any way
destroyed; nor shall we go upon him nor send upon him but by the lawful
judgment of ins peers and by the law of the land." Magna Carta as a charter
of English liberty was confirmed by successive English monarchs. It was in
one of these confirmations (28 Ed, III, Chap. 3) known as "Statute of
Westminster of the liberties of London" that the expression "due process of
law" appears to have been used for the first time. Neither of the expressions
"due process of law" or "law of the land" was explained or defined in any of
the documents, but on the authority of Sir Edward Coke it may be said that
both the expressions have the same meaning. In substance, they
guaranteed that persons should not be imprisoned without proper
indictment and trial by peers, and that property should not be seized except
in proceedings conducted in due form in which the owner or the person in
possession should have an opportunity to show cause why seizure should
not be made. The expression "due process of law" came to be a part of the
US Constitution by the Fifth Amendment which was adopted in 1791 and
which provided that "no person shall.... be deprived of life, liberty or
property without due process of law. Similar expression was used in the
Fourteenth Amendment in 1868. It has been said that few phrases in the
law are so elusive of exact apprehension as "due process of law." The United
States Supreme Court has always declined to give a comprehensive
definition of it and has preferred that its full meaning should be gradually
ascertained by the process) of inclusion and exclusion in the course of the
decisions as they arise. The expression "due process of law," as used in the
US Constitution, has been taken to impose a limitation upon the powers of
the Government, legislative as well as executive and judicial. Applied in

25-06-2021 (Page 58 of 305) www.manupatra.com SOAS Library Library

England as protection against executive usurpation and royal tyranny, in
America it became a bulwark against arbitrary legislation. "Due process of
law," according to Cooley, "means in each particular case such an exercise
of the powers: of Government as the settled maxims of law permit and
sanction, and under such safeguards for the protection of individual rights
as those maxims prescribe for the class of cases to which the one in
question belongs" (Constitutional Limitations, Vol. II, p. 741).

150. Till about the middle of the 19th Century, due process clause was
interpreted as a restriction upon procedure, and particularly the judicial
procedure, by which the Government, exercises its power. Principally It
related to the procedure by which persons were tried for crimes and
guaranteed to accused persons the right to have a fair trial in Compliance
with well established criminal proceedings. The same principle applied to the
machinery or ;, proceedings by which property rights were adjudicated and
by which the powers of eminent domain and taxation were exercised. ;
During this period it was not considered to have any bearing on substantive
law at all. Subsequently view came to be accepted that the concept of due
process of law protected rights of life, liberty and property. This change in
judicial thinking was influenced in a great measure by the industrial
development leading to accumulation of large capital in the hands of
industrialists and the emergence of a definite labouring class. What
constituted legitimate exercise of the powers of legislation now came to be a
judicial question and no statute was valid unless it was reasonable in the
opinion of the Court The US Supreme Court laid stress upon the word "due"
which occurs before and qualifies the expression "process of law." "Owe"
means "what is just and proper" according to the circumstances of a
particular case. The word introduces a variable element in the application of
the doctrine, for what is reasonable in one set of circumstances may not be
so in another set of circumstances. The requirement of due process clause
as a substantial restriction on Government control is also now becoming a
thing of the past and the rule is being restricted more and more to its
original procedural aspect (see observations of Mukherjea J. in the case of
A. K. Gopdlan, (supra).

151. At the tune the Constitution was being drafted, the Constitutional
Adviser Mr. B. N. Rau had discussions with US Constitutional experts some
of whom expressed the opinion that power of review implied in due process
clause was not only undemocratic because it gave the power of vetoing
legislation to the judges, but also threw an unfair burden on the judiciary.
This view was communicated by Mr. Rau to the Drafting Committee which
thereupon substituted the words "except according to procedure established

25-06-2021 (Page 59 of 305) www.manupatra.com SOAS Library Library

by law" for the words "due process, of law" In dropping the, words "due
process Of' law" the framers of on Constitution prevented the introduction of
elements of Vagueness, uncertainty and changeability which had grown
round the due process doctrine to the United States. The words "except
according to procedure established by law" were taken from Article 31 of the
Japanese Constitution, according to which "no person shall be deprived of
life or liberty nor shall any criminal liability be imposed, except according to
procedure established by law. The article is also somewhat similar to Article
4Q(4)(i) of Irish Constitution, according to which no person shall be
deprived of ins personal liberty save in accordance with law." ft was laid
down in Gopalan's case by the majority that the word "law" has been used
in Article 21 in the sense of State-made law and not as an equivalent of law
in the abstract or general sense embodying the principles of natural justice.
"The procedure established by law" was held to mean the procedure
established by law made by the State, that is to say, the Union Parliament
or the legislatures of the1 States, Law, i£ was also observed by Mukherjea
J., meant a valid and binding law under the provisions of the Constitution
and not one infringing fundamental rights.

152. The effect of the suspension of the right to move any court for the
enforcement of the right conferred by Article 21, k my opinion, is that when
a petition is filed in a court, the court would have to proceed upon the basis
that no reliance can be placed upon that Article for obtaining relief from the
court daring the period of emergency. Question then arises as to whether
the rule that no one shall be deprived of ins life or personal liberty without
the authority of law stiff survives during the period: of emergency despite
the Presidential order suspending the right to move any court for the
enforcement of the-right contained in Article 21. The answer to this question
is linked with the answer to the question as to whether Article 21 is, the sole
repository of the right to life and personal liberty. After giving the matter my
earnest consideration,

I am of the opinion that Article 21 cannot be considered" to be the sole

repository of the right to life and; personal liberty. The right to life, and
personal: liberty is the most precious right of human beings in civilised
societies governed by the rule of law. Many modern constitutions
incorporate certain fundamental rights, including the one relating to
personal freedom. According to Blackstone, the absolute rights of
Englishmen were the rights of personal security, personal liberty and private
property. The American Declaration of Independence (1776) states that all
men are created equal, and among their inalienable right are life, liberty,
and the pursuit of happiness.

25-06-2021 (Page 60 of 305) www.manupatra.com SOAS Library Library

The Second Amendment to the US Constitution refers inter alia to security
of person, while the Fifth Amendment prohibits inter alia deprivation of life
and Bberty without due process of law. The different Declarations of Human
Rights and fundamental freedoms have all laid stress upon the sanctity of
life and liberty. they have also given expression in varying words to the
principle that no one shall be derived of his: life or liberty without the
authority of law The International Commission of Jurists, which is affiliated
of UNESCO, has been attempting with, considerable success to give material
content to ''the Rule-of Law," an expression used in the Universal
Declaration: of Human Rights. One of its most notable achievement was the
Declaration of Delhi, 1959. This resulted from a Congress held m New Delhi
attended by jurists from more than 50 countries and was based on a
questionnaire circulated to 75,000: lawyers. "Respect for the supreme value
of human personality" was stated to be the basis of all law (see page 21 of
the Constitutional; and Administrative Law by O. Hood Phillips, 3rd Ed.).

153. Freedom under law, it may be added, is not absolute freedom. It has
its own limitations in its own interest, and can properly be described as
regulated freedom. In the words of Ernest Barker, (i) the truth that every
man, ought to be free has for its other side the complementary and
consequential truth that no man can be absolutely free; that (ii) the need of
liberty for each is necessarily qualified and conditioned by the need of liberty
for all that (iii) liberty in the State or legal liberty, as never the absolute
liberty of all that (iv) liberty within the State is thus a relative and regulated
liberty; and that (v) a relative and regulated liberty; actually, operative and
enjoyed, is a liberty greater in amount than absolute liberty could ever be
self indeed such liberty could ever exist, or even amount to anything more
than nothing at all.

154. Rule of law is the antithesis of arbitrariness. Plato believed that if

philosophers were kings or kings philosophers government by will would be
intrinsically superior to government by law, and he so proclaimed in ins
Republic. Experience eventually, taught him that this ideal was not
obtainable and that if ordinary men were allowed to rule by will alone the
interests of the community would be scarified to these of the ruler.
Accordingly^ in the Laws he modified ins position and urged the acceptance
of the "second best", namely government under law. Since the question of
the relative merits of rule by law as against rule by will has been often
debated. In the aggregate the decision has been in .favour of rule by law.
On occasions, however, we have slipped back into government by will only
to return again, sadder and wiser men, to Plato's "second best" when the
hard facts of human nature demonstrated the essential egotism of men and

25-06-2021 (Page 61 of 305) www.manupatra.com SOAS Library Library

the truth of the dictum that all power corrupts and absolute power corrupts
absolutely. Bracton's dicta that if the king has no bridle one ought to be put
upon in, and that although the king is under no man he is 'under God and
the law Fortescue's insistence that the realm of England is a reginem
politicium et regale and hence limited by law; Coke's observation that
"Magna Carta is such a fellow that he will have no sovereign"; these are but
a few of the beacons lighting the way to the triumph of the rule of law (see
pages 3-6 of the Rule of Law by H. Malcolm Macdonald and Ors.).

Rule of law is now the accepted norm of all civilised societies.

Even if there have been deviations from the rule of law, such deviations
have been covert and disguised for no government in a civilized country is
prepared to accept the ignominy of governing without the rule of law. As
observed on page 77 of Constitutional Law by Wade and Phillips, 8th Ed.,
the rule of law has come to be regarded as the mark of a free society.
Admittedly its content is different in different countries, nor is it to. be
secured exclusively through the ordinary courts.
But everywhere it is identified with the liberty of the individual. It seeks to
maintain a balance between the opposing notions of individual liberty and
public order. In every State the problem arises of reconciling human rights
with the requirements of public interest. Such harmonising can only be
attained by the existence of independent courts which can hold the balance
between citizen and State and compel Governments to conform to the law.

155. Sanctity of life and liberty was not something new when the
Constitution was drafted. It represented a fact of higher values which
mankind began to cherish in its evolution from a state of tooth and claw to a
civilized existence. Likewise, the principle that no one shall be deprived of
ins life and liberty without the authority of law was not the gift of the
Constitution. It was a necessary corollary of the concept relating to the
sanctity of life and liberty; it existed and was in force before the coming into
force, of the Constitution. The idea about the sanctity of life and liberty as
well as the principle that no one shall be deprived of his life and liberty
without the authority of law are essentially two facets of the same concept.
This concept grew and acquired dimensions in response to the inner urges
and nobler impulses with the march of civilisation. Great writers and
teachers, philosophers and political thinkers nourished and helped in the
efflorescence of the concept by rousing the conscience of mankind and by
making it conscious of the necessity of the concept as necessary social
discipline in self-interest and for orderly existence. According even to the
theory of social compact many aspects of which have now been discredited,
individuals have surrendered a part of their theoretically unlimited freedom

25-06-2021 (Page 62 of 305) www.manupatra.com SOAS Library Library

in return or the blessings of the government. Those blessings include
governance in accordance with certain norms in the matter of life and liberty
of the citizens. Such norms take the shape of the rule of law. Respect for
law, we must bear in mind, has a mutual relationship with respect for
government. Erosion of the respect for law, it has accordingly been said,
affects the respect for the government. Government under the law means,
as observed by Macdonald, that the power to govern shall be exercised only,
under conditions laid down in constitutions and laws approved by either the
people or their representatives. Law thus emerges as a norm limiting the
application of power by the government over the citizen or by citizens over
their fellows. Theoretically all men are equal before the law and are equally
bound by it regardless of their status, class, office or authority. At the same
time that the law enforces duties it also protects rights, even against the
sovereign. Government under law thus seeks the establishment of an
ordered community in which the individual, aware of ins rights and duties,
comprehends the area of activity within which, as a responsible and
intelligent person, he may freely order ins life, Secure from interference
from either the government or other individuals (see Rule of Law, page 6).
To quote further from Professor Macdonald:

It is clear enough that high echelon administrators are

understandably impatient with the restraints imposed upon them by
the traditional concept of the rule of law as developed by Dicey.
Administrators deal with the implementation of highly technical and
complex matters involving the immediate interests of many citizens.
To accomplish this they are granted wide discretion in the use of
administrative power to effectuate broad policies laid down by the
legislatOrs. It is natural, that they should desire to have the
conflicts which arise as the result Of the exercise of their discretion
adjudicated by tribunals composed of experts acquainted with the
details of the matters at issue, rather than by judges trained only in
the law. Hence their resistance to judicial review of administrative
'findings of fact' as opposed to 'findings of law'. The very things
which a court of law prizes--rules of evidence, common law
procedures, even due process--frequently appear to the
administrators as obscurantist devices employed by those who
oppose the very principle of the policy he is attempting to
effectuate. Often, secretly if not openly, the administrator considers
ins policy to be the incarnation of the best interests of the people,
or at least of their best interests if they really understood them, and
hence considers himself as arrayed on the side of progress and light
against the dark forces of reaction.

25-06-2021 (Page 63 of 305) www.manupatra.com SOAS Library Library

 Thus our 'wonderland of bureaucracy', as Beck has called it, has
sought autonomy from the traditional rule of courts and law. If it
should succeed we should then indeed be confronted with a vital
segment of govern mental power which would have escaped from
legal control and become arbitrary in its acts. To prevent this we
have subjected the acts of administrators to challenge in the courts
on the basis of ultra vires, and provided for judicial review of
administrative tribunals' rending of law.

156. To use the words of Justice Brandeis Olmstead v. United States, 277 U.
S. 438(1928) with some modification, experience should, teach us to be
most on our guard to protect liberty when the Government's purposes are
beneficent. Men born to freedom are naturally alert to repel invasion-of their
liberty by evil-minded persons. Greatest danger to liberty lies in insidious
encroachment by men of zeal, well-meaning but lacking in due deference for
the rule of few.

157. Even in the absence of Article 21 in the. Constitution, the State has got
no power to deprive a person of ins life or liberty without the authority of
law. This is the essential postulate and basic assumption of the rule of law
and not of men in all civilised nations. Without such sanctity of life and
liberty, the distinction between a lawless society and one governed by laws
would cease to have any meaning. The principle that no one shall be
deprived of his life or liberty without the authority of law is rooted in, the
consideration that life, and liberty are priceless possessions which cannot be
made the plaything of individual whim and caprice and that any act which
has the effect of tampering with life and liberty must receive sustenance
from and sanction of the laws of the land. Article 21 incorporates an
essential aspect of that principle and makes it part of the fundamental rights
guaranteed in Part III of the Constitution. It does not, however, follow from
the above that if Article' 21 had not been drafted and inserted in Part III, in
that event it would have been permissible for the State to deprive a person
of his life or liberty without the authority of law. No case has been cited
before us to show that before the coming into force of the Constitution or in
countries under Rule of law where there is no provision corresponding to
Article 21, a claim was ever sustained by the courts that the State can
deprive a person of ins life or liberty without the authority of law.
In fact, any suggestion to such a claim Was un-equivocally repelled. In the
case of James Sbmmersett [1772], 16 Cr. pract.289 Lord Mansfield dealt
with a case of a negro named Sommersett,: who was being taken in a ships
to Jamaica for sale in a slave market. When the ships-anchored at London
port, a habeas corpus petition was presented by some Englishmen who were

25-06-2021 (Page 64 of 305) www.manupatra.com SOAS Library Library

moved by the yelling and cries of Sommersett. In opposition to the petition
the slave trader took the plea that there was no law which prohibited
slavery. Lord Mansfield while repelling this objection made the following
observation in respect of slavery which is one of the worst forms of
deprivation of personal freedom:

It is so odious that nothing can be suffered to support it but positive

law: whatever inconveniences, therefore, may follow from this
decision, I cannot' say this case is allowed or approved by the law
of England; and therefore the black must be discharged.

In other case, Fabnqas v. Mostyn 1 Cowp.,161 Lord Mansfield observed on

page 173:

To lay down in an English court of Justice that a Governor acting, by

virtue of Letters Patent, under the Great Seal, is accountable only
to God and his own conscience; that he is absolutely despotic? and
can spoil plunder, and affect His Majesty's subjects, both in their
liberty and property, with impunity, is a doctrine that cannot be:
maintained.

The above observations were relied upon in the matter of Ammer Khan 6
Bengal Law Reports 292. I may also refer to the observations of Lord Atkin
in the case of Eshiuqbavi Eteko v. Officer Administering the Government of
Nigeria AIR 1931 P.C. 248:

In accordance with British jurisprudence, 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
ins action before a Court of Justice. And it is the tradition of British
Justice that Judges should net shrink from deciding such issues in
the face of the executive.

The above rule laid down in Eleko's case was followed by the High Courts in
India before the coming into force of the Constitution in Prabkakar Kesheo
Tare and Ors. v. Emperor AIR 1943 Nag. 26. Vimlabai Deshpande v.
Emperor A.I.R. 1945 Nag. 8, Htendranath Ghosh v. The Chief Secretary to
the Government of Bengal I. L. R. 60 CaL. 364 and in re : Banwari Lal Roy
and Ors. 48 C W.N. 766. The rule laid down in Eleko's case was also followed
by the Constitution Beaches of this Court after the coming force of the
Constitution in the cases of Bidi Supply Co. v. The Union of India and Ors.
MANU/SC/0040/1956 : [1956]29ITR717(SC) and Basheshar Nath v. The

25-06-2021 (Page 65 of 305) www.manupatra.com SOAS Library Library

Commissioner of Income Tax, Delhi & Rajasthan and Anr. [1959] (1) Supp.
S. C. R. 528 .

158. I am unable to subscribe to the view that when right to enforce the
right under Article 21 is suspended, the result would be that there would be
no remedy against deprivation of a person's life or liberty by the State even
though such deprivation is without the authority of law or even in flagrant
violation of the provisions of law. The right not to be deprived of one's life or
liberty without the authority of law was not the creation of the Constitution.
Such right existed before the Constitution came into force. The fact that the
framers of the Constitution made an aspect of such right a part of the
fundamental rights did not have the effect of exterminating the independent
identity of such right and of making Article 21 to be the sole repository of
that right. Its real effect was to ensure that a law under which a person can
be deprived of ins life or personal liberty should prescribe a procedure for
such deprivation or, according to the dictum laid down by Mukherjea, J. in
Gopalan's case, such law should be a valid law not violative of fundamental
rights guaranteed by Part III of the Constitution.

Recognition as fundamental right of one aspect of the pre-Constitutional

right cannot have the effect of making things less favourable so far as the
sanctity of life and personal liberty is concerned .compared to the position if
an aspect of such right had not been recognised as fundamental right
because, of the vulnerability of fundamental rights accruing from Article
359.
I am also unable to agree that in view of the Presidential Order in the
matter of sanctity of life and liberty, things would be worse off compared to
the state of law as it existed before the coining into force of the
Constitution.

159. The case of Dhirubha Devisingh Gohil v. The. State of Bombay

MANU/SC/0032/1954 : [1955]1SCR691 upon which reliance has been
placed by learned Attorney General cannot be of much assistance to him. In
that case this. Court held that the validity of the Borhbay Taluqdari Tenure
Abolition Act, 1949 cannot be questioned on the ground that it takes, away
or abridges the fundamental rights conferred by the Constitution of India in
view of the fact that that Act had been inserted in the Ninth Schedule of the
Constitution. This Court also repelled the contention that the said Act was
violative of Section 229 of the Government of India Act, 1935 because, in
the opinion of the Court, the right secured by Section 229 was lifted into the
formal category of a fundamental right. The principle laid down in that case
cannot be, invoked in a case like the present wherein the area covered by

25-06-2021 (Page 66 of 305) www.manupatra.com SOAS Library Library

the right existing since before the Constitution is wider, than the area
covered by the fundamental right and the fundamental right deals with only
an aspect of such pre-existing right. Moreover, the correctness of the view
taken in the above case, in my opinion, is open to question in view of the
later decision of Makhan Singh (supra) decided by a Bench of seven Judges
wherein it has been observed on page 821 that after the coming into force
of the Constitution, a detenu has two remedies, one under Article 226 or
Article 32 of the Constitution and another under Section 491 of the CrPC.
Makhan Singh's case, as discussed elsewhere, shows that the remedy under
an earlier statutory provision would not get obliterated because of the
identical remedy by a subsequent Constitutional provision and that the two
can co-exist without losing their independent identity.

160. Preventive detention, though not strictly punishment, is akin to

punishment, because of the evil consequences of being deprived of one's
liberty. No one under our laws can be deprived of ins life or liberty without
the authority of law. This would be evident from the fact that if a person
without the authority of law takes another person's life, he would normally
be guilty of the offence of culpable homicide. Likewise, if a person deprives
another of ins liberty by confining him, he would in the absence of any valid
justification, be guilty of wrongful confinement. It is for that reason that
courts have insisted upon the authority of law for a public servant to take
away someone's life or liberty. An executioner carrying out the sentence of
death imposed by the court would not commit the offence of homicide,
because he is executing the condemned man in obedience to a warrant
issued by a court haying jurisdiction in accordance with the law of the land.
Likewise, a jailor confining a person sentenced to imprisonment is not guilty
of the offence of wrongful confinement. The principle that no one shall be
deprived of his life or liberty without the authority of law stems not merely
from the basic assumption in every civilised society governed by the rule of
law of the sanctity of life and liberty, it flows equally from the fact that
under out penal laws no one is empowered to deprive a person of ins life or
liberty without the authority of law.

161. The fact that penal laws of India answer to the description of the word
"law", which has been used in Article 21 would not militate against the
inference that Article 21 is not the sole repository of the right to life or
personal liberty and that the principle that no one shall be deprived of ins
life or personal liberty without the authority of law flows from the penal laws
of India. Nor is it the effect of Article 21 that penal laws get merged in
Article 21 because of the fact that they constitute "law" as mentioned in
Article 21, for were it so the suspension of the right to move a court for

25-06-2021 (Page 67 of 305) www.manupatra.com SOAS Library Library

enforcement of fundamental right contained in Article 21 would also result in
suspension of the right to move any court for enforcement of penal . laws.

162. It has been pointed out above that even before the coming into force
of the Constitution, the position under the common law both in England and
in India was that the State could not deprive a person of ins life and liberty
without the authority of law. The same was the position under the penal
laws of India. It was an offence under the Indian Penal Code, as already
mentioned, to deprive a person of ins life or liberty unless such a course was
sanctioned by the laws of the land. An action was also maintainable under
the law of torts for wrongful confinement in case any person was deprived of
ins personal liberty without the authority of law. In addition to that, we had
Section 491 of the CrPC which provided the remedy of habeas corpus
against detention without the authority of law. Such laws continued to
remain in force in view of Article 372 after the coming into force of the
Constitution. According to that article, notwithstanding the repeal by this
Constitution of the enactments referred to in Article 395 but subject to the
other provisions of this Constitution, all the law in force in the territory of
India immediately before the commencement of this Constitution shall
continue in force therein until altered or repealed or amended by a
competent legislature or other competent authority. The law in force, as
observed by the majority of he Constitution Bench in the case of Director of
Rationing and Distribution v. The Corporation of Calcutta and Ors.
MANU/SC/0061/1960 : 1960CriLJ1684 , include not only the statutory law
but also custom or usage haying the force of law as also the common law of
England which, was adopted as the law of the country before the coming
into force of the Constitution. The position thus seems to be firmly
established that at the time, the Constitution came into force, the legal
position was that no one could be deprived of ins life or liberty without the-
authority of law.

163. It is difficult to accede to the contention that because of Article 21 of

the Constitution, the law which was already in force that no one could be
deprived of ins life or liberty without the authority of law was obliterated and
ceased to remain in force. No rule of construction interpretation warrants
such an inference. Section 491 of the CrPC continued to remain an integral
part of that Code despite the fact that the High Courts were vested with the
power of issuing writs of habeas corpus under Article 226. No submission
was ever advanced on the score that the said provision had become a dead
letter of enforceable because of the fact that Article 226 was made a part of
the Constitution, Indeed, in the case of Makhan Singh (supra)
Gajendragadkar J. speaking for the majority stated that after the coming

25-06-2021 (Page 68 of 305) www.manupatra.com SOAS Library Library

into force of the Constitution, a party could avail of either the remedy of
Section 491 of the CrPC or that of Article 226 of the Constitution. The above
observations clearly go to show that constitutional recognition of the remedy
of writ of habeas corpus did not obliterate or abrogate the statutory remedy
of writ of habeas corpus. Section 491 of the CrPC continued to be part of
that Code till that Code was replaced by the new Code. Although the remedy
of writ of habeas corpus is not now available under the new CrPC, 1973, the
same remedy is still available under Article 226 of the Constitution.

164. Our attention has been invited to Section 18 of the maintenance of

Internal Security Act as amended. According to that section, no person,
including a foreigner, in respect of whom an order is made or purported to
be made under Section 3 shall have any right to personal liberty by virtue of
natural law or common law, if any. This Section would not, in my opinion,
detract from my conclusion that Article 21 is not the sole repository of the
right to personal liberty. It has been pointed out above that the principle
that no one shall be deprived of ins life and personal liberty without the
authority of laws follows not merely from common law, it flows equally from
statutory law like the penal law in force in India. The above principle, as
would appear from what has been discussed elsewhere, is also an essential
facet of the rule of law. Section 18, therefore, cannot be of much assistance
to the appellants. I am also unable to subscribe to the view that Section 18
would have the effect of enlarging the ambit of the power of the detaining
authority for the purpose of passing an order for detention. There has been,
it needs to be emphasised, no amendment of Section 3 of the Act. Section
18 cannot be construed to mean that even if an order for detention is made
on grounds not warranted by Section 3 of the Act, it shall be taken to be an
order under Section 3 of the Act. Apart from the fact that such an inference
is not permissible on the language of Section 18, the acceptance of this view
would also render the validity of Section 18 open to question on the ground
that it suffers from the vice of excessive delegation, of legislative power. The
legislature is bound to lay down the legislative policy by prescribing the
circumstances in which an order for detention can be made. It is not
permissible for the legislature to confer, a power of detention without laying
down guidelines and prescribing the circumstances in which such order
should be made. To do so would be tantamount to abdication of legislatitve
function for in such an event it would be open to the detaining authority to
detain a person on any ground whatsoever.

165. I agree with the learned Attorney General that if we are to accept ins
argument about the scope of the Presidential order of June 27, 1975, in that
event we have to accept it in its entirety and go the whole hog; there is no

25-06-2021 (Page 69 of 305) www.manupatra.com SOAS Library Library

half way house in between. So let us examine the consequences of the
acceptance of the above argument. This would mean that if any official,
even a head constable of police, capriciously or maliciously, arrests a person
and detains him indefinitely without any authority of law, the aggrieved
person would not be able to seek any relief from the courts against such
detention during the period of emergency. This would also mean that it
would not be necessary to enact any law on the subject and even in the
absence of any such law, if any official for reasons which have nothing to do
with the security of State or maintenance of public order, but because of
personal animosity, arrests and puts behind the bar any person or a whole
group or family of persons, the aggrieved person or persons would not be
able to seek any redress from a court of law. The same would be the
position in case of threat of deprivation or even actual deprivation of life of a
person because Article 21 refers to both deprivation of life as well as
personal liberty. Whether such things actually come to pass is not the
question before us; it is enough to state that all these are permissible
consequences from the acceptance of the contention that Article 21 is the
sole repository of the right to life and personal liberty and that consequent
upon the issue of the Presidential order, no one can approach any court and
seek relief during the period of emergency against deprivation of life or
personal liberty. In order words, the position would be that so far as
executive officers are concerned, in matters relating to life and personal
liberty of citizens, they would not be governed by any law, they would not
be answerable to any court and they would be wielding more or less
despotic powers.

166. To take another illustration. Supposing the Presidential order under

Article 359(1) were to mention Article 21 but not Article 22. The acceptance
of the above submission advanced on behalf of the appellants would mean
that if the State does not release a detenu despite the opinion of the
Advisory Board that there is no sufficient cause for ins detention and thus
keeps him in detention in flagrant violation of the provisions of Article 22, no
habeas corpus petition would be maintainable and this would be so even
though Article 22 itself is a fundamental right.

167. The right to move a court for enforcement of a right under Article 19
has now been suspended by the President under an order issued under
Article 359(1). The effect of that, on a parity of reasoning advanced on
behalf of the appellant would be, that no one can file a suit during the
period of emergency against the State for recovery of property or money
(which is a form of property) because such a suit, except in some
contingencies, would be a suit to enforce the right contained in Article 19.

25-06-2021 (Page 70 of 305) www.manupatra.com SOAS Library Library

168. Not much argument is needed to show that if two constructions of
Presidential order were possible, one leading to startling results and the
other not leading to such results, the court should lean in favour of such
construction as would not lead to such results.

169. Equally well established is the rule of construction that if there be a

conflict between the municipal law on one side and the international law or
the provisions of any treaty obligations on the other, the courts would give
effect to municipal law. If, however, two constructions of the municipal law
are possible, the court should lean in favour of adopting such construction
as would make the provisions of the municipal law to be in harmony with
the international law or treaty obligations. Every statute, according to this
rule, is interpreted, so far as its language permits, so as not to be
inconsistent with the committee of nations or the established rules of
international law, and the court will avoid a construction which would give
rise to such inconsistency unless compelled to adopt it by plain and
unambiguous language. But if the language of the statute is clear, it must be
followed notwithstanding the conflict between municipal and international
law which results (see page 183 of Maxwell on the Interpretation of
Statutes, Twelfth Edition.) As observed by Oppenheim's International law,
although municipal courts must apply Municipal Law even if it conflicts with
the law of Nations, there is a presumption against the existence of such a
conflict. As the Law of Nations is based upon the common consent of the
different States, it is improbable that an enlightened State would
intentionally enact a rule conflicting with the Law of Nations. A rule of
Municipal Law, which ostensibly seems to conflict with the Law of Nations,
must, therefore, if possible, always be so interpreted as to avoid such
conflict (see Vol. I, pages 45-46), Lord Denning gave expression to similar
view in the case of Corocraft Ltd. v. Pan American Airways Inc. [1969] 1 All
E. R. 80 when he observed:

The Warsaw Convention is an international convention which is

binding in international law on all the countries who have ratified it:
and it is the duty of these courts to construe our legislation so as to
be in conformity with international law and not in conflict with it.

The rule about the construction of municipal law also holds good" when
construing the provisions of the Constitution as would appear from
International Law by Fenwick, Third Edition, page 90, wherein is observed:

But while in the case of a direct conflict between national and

international law, the rule of national law will of necessity take

25-06-2021 (Page 71 of 305) www.manupatra.com SOAS Library Library

 priority until changed to conform to the international obligations of
the state, there are numerous cases in which the provisions of the
national Constitution of the provisions of a particular legislative act
are not so explicit but that they may be interpreted so as to enable
the executive and the judicial agencies of the state to act in-
accordance with the obligations (of international law.

According to Article 51 our Constitution, the State shall endeavor to inter

alia foster respect for international law and treaty obligations in the dealings
of organised peoples with one another. Relying open that article, Sikri CJ.
observed in the case of Kesavananda Blwrathi v. State of Kerala
MANU/SC/0114/1972 : 1972CriLJ1526:

it seems to me that, in view of Article 51 of the directive principles,

this Court must interpret language of the Constitution, if mot
intractable, which is after all a municipal law, in the light of the
United Nations Charter and the solemn declaration subscribed to by
India.

Articles 8 and 9 of the Universal Declaration of Human Rights in respect of

which resolution was passed by the United Nations and was supported by
India read as under:

ARTICLE 8

Everyone has the right to an effective remedy by the competent

national tribunals for acts violating the fundamental rights granted
him by the Constitution or by law.

ARTICLE 9

No one shall be subjected to arbitrary arrest, detention or exile.

170. While dealing with the Presidential order under Article 359(1), we
should adopt such a construction as would, if possible, not bring it in conflict
with the above Articles 8 and 9. From what has been discussed elsewhere, it
is plain that such a construction is not only possible, it is also preeminently
reasonable. The Presidential order, therefore, should be so construed as not
to warrant arbitrary arrest or to bar right to an effective remedy by
competent national tribunals for acts violating basic right of personal liberty
granted by law.

25-06-2021 (Page 72 of 305) www.manupatra.com SOAS Library Library

171. It has been argued that suspending the right of a person to move any
court for the enforcement of right to life and personal liberty is done under a
constitutional provision and therefore it cannot be said that the resulting
situation would mean the absence of the rule of law. This argument, in my
opinion, cannot stand close scrutiny for it tries to equate illusion of the rule
of law with the reality of rule of law. Supposing a law is made that in the
matter of the protection of life and liberty, the administrative officers would
not be governed by any law and that it would be permissible for them to
deprive a person of life and liberty without any authority of law. In one
sense, it might in that event be argued that even if lives of hundreds of
persons are taken capriciously and maliciously without the authority of law,
it is enforcement of the above enacted law. As observed by Friedman on
page 500 of Law in Changing Society, 2nd Ed., in a purely formal sense, any
system of norm based on a hierarchy of orders, even the organised mass
murders of Nazi regime qualify as law. This argument cannot however,
disguise the reality of the matter that hundreds of innocent lives have been
taken because of the absence of rule of law. A state of negation of rule of
law would not cease to be such a state because of the fact that such a state
of negation of rule of law has been brought about by a statute. Absence of
rule of law would nevertheless be absence of rule of law even though it is
brought about by a law to repeal all laws. In the words of Wade,
Government under the rule of law demands proper legal limits on the
exercise of power. This does not mean merely that acts of authority must be
justified by law, for if the law is wide enough it can justify a dictatorship
based on the tyrannical but perfectly legal principle quod principal placuit
legis habet vigorem. The rule of law requires something further. Powers
must first be approved by Parliament, and must then be granted by
Parliament within definable limits (see Administrative Law, Third Edition,
page 46). It is no doubt true that Dicey's concept of rule of law has been
criticised by subsequent writers since it equates the rule of law with the
absence not only of arbitrary but even of wide discretionary power. The
following reformulation of Dicey's ideas as applicable to modern welfare
state given by H.W. Jones eliminates the equation of arbitrary and wide
discretionary powers:

There are, I believe, ideas of universal validity reflected in Dicey's

'three meanings' of the rule of law.....(1) in a decent society it is
unthinkable that government, or any officer of government,
possesses arbitrary power- over the person or the interests of the
individual; (2) all members of society, private persons and
governmental officials alike, must be equally responsible before the
law; and (3) effective judicial-remedies are more important than

25-06-2021 (Page 73 of 305) www.manupatra.com SOAS Library Library

 abstract constitutional declarations in securing the rights of the
individual against encroachment by the State" (see Law in a
Changing Society by Friedmann, 2nd Ed., page 501).

172. One of the essential attributes of the rule of law is that executive
action to the prejudice of or detrimental to the right of an individual must
have the sanction of some law. This principle has now been well settled in a
chain of authorities of this Court.

173. In the case of Rai Sahib Ram Jawaya Kapur and Ors. v. The State of
Punjab MANU/SC/0011/1955 : [1955]2SCR225 Mukherjea C.J. speaking for
the Constitution Bench of this Court observed:

Specific legislation may indeed be necessary if the Government

require certain powers in addition to what they possess under
ordinary law, in order to carry on the particular trade or business.
Thus when it is necessary to encroach upon private rights in order
to enable the Government to carry on, their business, a specific
legislation sanctioning such course would have to be passed.

174. The above attribute of the rule of law has been specially highlighted in
the decision of this Court1 in the case of State of Madhya Pradesh and Anr.
v. Thakur Bharat Singh MANU/SC/0043/1967 : [1967]2SCR454 . In that
case the State Government made an order under Section 3 of the Madhya
Pradesh Public Security Act, 1959, directing that the respondent (i) shall not
be in any place in Raipur District, (ii) shall immediately proceed to and
reside in a named town, and (iii) shall report daily to a police station in that
town. The respondent challenged the order by a writ petition under Articles
226 and 227 of the Constitution on the ground inter alia, that Section 3
infringed the fundamental rights guaranteed under Article 19 of the
Constitution. The High Court declared Clauses (ii) and (iii) of the order
invalid on the ground that Clauses (b) and (c) of Section 3 (i) of the Madhya
Pradesh Public Security Act on which they were based contravened Article
19. On appeal this Court held that Section 3 (i) (b) violated Article 19 and
as it was a pre-emergency enactment, it must be deemed to be void when
enacted. Section 3 (i) (b) was further held not to have revived as a result of
the proclamation of emergency by the President. Counsel for the State
submitted in the alternative that even if Section 3 (i) (b) was void, Article
358 protected action, both legislative and executive, taken after
proclamation of emergency, and therefore any executive action taken by the
State would not be liable to be challenged on the ground that it infringed the

25-06-2021 (Page 74 of 305) www.manupatra.com SOAS Library Library

fundamental freedoms under Article 19; This contention was repelled. Shah
J. (as he then was) speaking for the Court observed:

All executive action which operates to the prejudice of any person

must have the authority of law to support it, and the terms of
Article 358 do not detract from that rule. Article 358 expressly
authorises the State to take legislative or executive action provided
such action was competent for the State to make or take, but for
the provisions contained in Part III of the Constitution. Article 358
does not purport to invest the State with arbitrary authority to take
action to the prejudice of citizens and others: it merely provides
that so long as the proclamation of emergency subsists laws may
be enacted, and executive action may be taken in pursuance of
lawful authority, which if the provisions of Article 19 were operative
would have been invalid. Our federal structure is founded on certain
fundamental principles: (1) the sovereignty of the people with
limited Government authority i. e. the Government must be
conducted in accordance with the will of the majority of the people.
The people govern themselves through their representatives,
whereas the official agencies of the executive Government possess
only such powers as have been conferred upon them by the people;
(2) There is distribution of powers between the three organs of the
State-legislative, executive and judicial-each organ having some
check direct or indirect on the other: and (3) the rule of law which
includes judicial review of arbitrary executive actions. As pointed
out by Dicey in ins 'Introduction to the study of the Law of the
Constitution', 10th Edn., at p. 202 the expression 'rule of law' has
three meanings, or may be regarded from three different points of
view. 'It means in the first place, the absolute supremacy or
predominance of regular law as opposed to the influence of
arbitrary power, and excludes the existence of arbitrariness, of
prerogative or even of wide discretionary authority on the part of
government.' At p. 188 Dicey points out:

In almost every continental community the executive

exercises far wider discretionary authority in the matter of
arrest, of temporary imprisonment, of expulsion from its
territory, and the like, than is either legally claimed or in
fact exerted by the government in England : and a study of
European polities now and again reminds English readers
that wherever there is discretion there is room for
arbitrariness, and that in a republic no less than under a

25-06-2021 (Page 75 of 305) www.manupatra.com SOAS Library Library

 monarchy discretionary authority on the part of the
government must mean insecurity for legal freedom ion the
part of its subjects.' We have adopted under our
Constitution not the Continental system but the British
system under which the rule of law prevails. Every act done
by the Government or by its officers must, if it is to operate
to the prejudice of any person, be supported by some
legislative authority.

175. In Chief Settlement Commissioner, Rehabilitation Department, Punjab

and Ors. etc. v. Om Parkash and Ors. MANU/SC/0138/1968 :
[1968]3SCR655 a Division Bench of this Court observed:

In our constitutional system, the central and most characteristic

feature is the concept of the rule of law which means, in the
present context, the authority of the law courts to test all
administrative action by the standard of legality.. The administrative
or executive action that does not meet the standard will be set
aside if the aggrieved person brings the appropriate action in the
competent court.

176. In District Collector of Hyderabad and Ors. v. M/s. Ibrahim & Co. etc.
MANU/SC/0070/1970 : [1970]3SCR498 the respondents who were
recognized dealers in sugar were prevented by an executive order from
carrying on the business. The question which actually arose for decision
before this Court was whether the said order was protected under Articles
358 and 359 because of the declaration of state of emergency by the
president. Shah j. speaking for Bench of six Judges of this Court observed:

But the executive order immune from attack is only that order
which the State was competent, but for the provisions contained in
Article 19, to make. Executive action of the State Government
which is otherwise invalid is not immune from attack, merely
because a proclamation of emergency is in operation when it is
taken. Since the order of the State Government was plainly
contrary to the statutory provisions contained in the Andhra
Pradesh Sugar Dealers Licensing Order and the Sugar Control order,
it was not protected under under Article 358 of the Constitution.

Nor had it the protection under Article 259.

177. In Bennett Coleman & Co. and Ors. v. Union of India

MANU/SC/0038/1972 : [1973]2SCR757 Ray J. (as he then was) speaking

25-06-2021 (Page 76 of 305) www.manupatra.com SOAS Library Library

for the majority of the Constitution Bench jelled upon Thakur Bharat Singh
and M/s. Ibrahim & Co. cases (supra) and observed:

Executive action which is unconstitutional is not immune during the

proclamation of emergency. During the proclamation of emergency
Article 19 is suspended. But it would not authorise the taking of
detrimental executive action during the emergency affecting the
fundamental rights in Article 19 without any legislative authority or
in purported exercise of power conferred by any per-emergency law
which was invalid when enacted.

178. In Shree Meenakshi Mills Ltd. v. Union of India MANU/SC/0064/1973 :

[1974]2SCR398 this Court dealt with petitions challenging the validity of the
fixation of price of cotton yarns under an executive order. Objection was
raised to the maintainability of the petitions on the score of proclamation of
emergency. This objection was repelled and reliance was placed on the
decision of the Court in the case of Bennett Coleman & Co.

179. In Naraindas Indurkhya v. The State of Madhya Pradesh

MANU/SC/0066/1974 : [1974]3SCR624 the Constitution Bench of this Court
to which three of us (Ray C. J, Khanna and Bhagwati JJ.) were parties
placed reliance on the decisions in the cases of Ram Jawaya Kapur, Thakur
Bharat Singh and Bennett Coleman & Co. (surpa)

180. These authorities clearly highlight the principle that executive

authorities cannot under the rule of law take any action to the prejudice of
an individual unless such action is authorised by law. A fortiori it would
follow that under the rule of law it is not permissible to deprive a person of
ins life or personal liberty without the authority of law.

181. It may be appropriate at this age to refer to other cases in which stress
has been laid on rule of law by this Court.

182. Wanchoo J. in the case of Director of Rationing and Distribution v. The

Corporation of Calcutta and Ors. MANU/SC/0061/1960 : 1960CriLJ1684
stated that in our country the rule of law prevails and our Constitution has
guaranteed it by the provisions contained in Part III thereof as well as other
provisions in other Parts.

183. In Bishan Das and Ors. v. The State of Punjab and Ors.
MANU/SC/0348/1961 : [1962]2SCR69 S. K. Das J. speaking for the
Constitution Bench of this Court deprecated action taken by the State and

25-06-2021 (Page 77 of 305) www.manupatra.com SOAS Library Library

its officers on the ground that it was destructive of the basic principles of
the rule of law.

184. In G. Sadanandan vi. State of Kerala and Anr. (supra) Gajendragadkar

CJ. speaking for the Constitution bench observed that the paramount
requirement of the Constitution was that even during emergency the
freedom of Indian citizens would not be taken away without the existence' of
justifying necessity specified by the Defence of India Rules.

185. In S. G. Jaisinghani v. Union of India and Ors. MANU/SC/0361/1967 :

[1967]65ITR34(SC) , Ramaswami J. speaking for the Constitution Bench of
this Court observed as under:

In this context it is important to emphasise that the absence of

arbitrary power is the first essential of the rule of law upon which
our whole constitutional system is based. In a system governed by
rule of law, discretion, when conferred upon executive authorities,
must be confined within clearly defined limits. The rule of law from
this point of view means that decisions should be made by the
application of known principles and rules and, in general, such
decisions should be predictable and the citizen should know where
he is. If a decision is taken without any principle or without any rule
it is unpredictable and such a decision is the antithesis of a decision
taken in accordance with the rule of law. (See Dicey--'Law of the
Constitution'--Tenth Edn., Introduction ex). 'Law has reached its
finest moments', stated Douglas, J. in United States v. Wunderlick
342 U. S. 98, 'when it has freed man from the unlimited discretion
of some ruler...
Where discretion is absolute, man has always suffered'. It is in this
sense that the rule of law may be said to be sworn enemy of
caprice. Discretion, as Lord Mansfield stated it in classic terms in
the case of John. Wilkes (1770) 4 Burr. 2528 at 2539, 'means sound
discretion guided by law. It must be governed by rule, not by
humour : It must not be arbitrary, vague and fanciful.

186. In the case of Shrimati Indira Nehru Gandhi v. Shri Raj Naraia
MANU/SC/0304/1975 : [1976]2SCR347 both Ray CJ. and Chandrachud J.
laid stress on the rule of Jaw in our constitutional scheme.

187. It would not, in my opinion, be correct to consider rule of law as a

vague or nebulous concept because of its description as an unruly horse by
Ivor Jennings. Indeed, according to Jennings, the rule of law demands in the

25-06-2021 (Page 78 of 305) www.manupatra.com SOAS Library Library

first place that the powers of the Executive should not only be derived from
law, but that they should be limited by law. Whatever might be the position
in peripheral cases, there are certain aspects which constitute the very
essence of the rule of law. Absence of arbitrariness and the need of the
authority of law for official acts affecting prejudicially rights of individuals is
one of those aspects. The power of the courts to grant relief against
arbitrariness or absence of authority of law in the matter of the liberty of the
subject may now well be taken to be a normal feature of the rule of law. To
quote from Halsbury's Laws of England, Third Edition, Vol. 7, para 416, the
so-called liberties of the subject are really implications drawn from the two
principles that the subject may say or do what he pleases, provided he does
not transgress substantive law, or infringe the legal rights of others,
whereas public authorities including the Crown) may do nothing but what
they are authorised to do by some rule of common law or statute. The
essence of rule of law., according to Prof. Goodhart, is that public officers
are governed by law, which limits their powers. It means Government under
law--the supremacy of law over the Government, as distinct from
Government by law--the mere supremacy of law in society generally--which
would apply also to totalitarian states (See page 42 of constitutional and
Administrative Law by Hood Phillips, Third Edition).

188. I may mention that there has been an amendment of Article 359
inasmuch as Clause (1A) has been added in that article. The effect of the
insertion of that clause in Article 359 is that while an order made under
Clause (1) mentioning any of the rights conferred by Part III is in operation,
nothing in that Part conferring those rights shall restrict the power of the
State 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 in competency, cease
to have effect as soon as the order aforesaid ceases to operate, except as
respects thing done or omitted to be done before the law so ceases to have
effect. Clause (1A) thus protects laws and executive actions from any attack
on validity on the score of being violative of the fundamental rights
mentioned in the Presidential order in the same way as Article 358 protects
the laws and executive actions from being challenged on the ground of
being violative of Article 19 during the period of emergency. If the existence
of Article 358 did not have the effect of dispensing with the necessity for an
executive action operating to the prejudice of the right of a citizen of the
authority of law, the same must necessarily be the position after the
insertion of Clause (1A) in Article 359. It is significant that the language of
Clause (1A) of Article 359 in material respect is substantially the same as
that of Article 358. The language of Clause (1A) of Article 359 makes it clear

25-06-2021 (Page 79 of 305) www.manupatra.com SOAS Library Library

that the protection which is afforded by that clause is to such law or
executive action as the State would but for the provisions contained in Part
III of the Constitution be competent to make or take. The word "competent"
has a significance and it is apparent that despite the Presidential order
under Article 359(1), in the case of executive action the competence of the
State to take such action would have to be established. Such competence
would, however, be judged ignoring the restriction placed by the provisions
of Part III of the Constitution. To put it in other words, Clause (1A) of Article
359 does not' dispense with the necessity of competence to make law or
take executive action. The only effect of that clause is that during the period
of emergency, the restriction placed upon the competence by fundamental
rights would not be there. But it would still be necessary to establish the
competence dehors the restrictions of the fundamental rights.

189. The matter can also be looked at from another angle. Before any public
authority can deprive a person of ins life or personal liberty, two
requirements are to be satisfied:

(1) Power must be conferred by law upon such authority to deprive

a person of ins life or liberty; and

(2) Law must also prescribe the procedure for the exercise of such
power.

Suspension of the right to move any court for the enforcement of the right
under Article 21 can at the best impinge upon the second requirement; it
cannot affect the first requirement which is a cardinal principle of the rule of
law. I am conscious of the fact that though Article 21 refers to procedure
established by law, there are observations in (Gopalan's case that the Article
would also cover substantive law for affording protection to life and liberty.
What Article 21 lays down is that no person shall be deprived of ins life or
personal liberty except according to procedure established by law. Procedure
about the exercise of power of depriving a person of ins life or personal
liberty necessarily presupposes that the substantive power of depriving a
person of ins life or personal liberty has been vested in an authority and that
such power exists. Without the existence of such substantive power, no
question can arise about the procedure for the exercise of that power. It
has, therefore, been held that though there is no reference to substantive
power in Article 21, the said Article would cover both the existence of the
substantive power of depriving a person of ins life and personal liberty as
well as the procedure for the exercise of that power. The question with
which we are concerned is as to what is the effect of the suspension of the

25-06-2021 (Page 80 of 305) www.manupatra.com SOAS Library Library

right to move a court for the enforcement of the right contained in Article
21. The effect, it may possibly be argued, is that consequent upon such
suspension, if a person is deprived of ins life or personal liberty under a law
not satisfying the second requirement indicated above, he cannot seek
judicial redress on that score. Would it, however, follow from the suspension
of such right that no judicial remedy would be available if a person is
deprived by an authority of ins life or personal liberty even though such an
authority has not been vested with the substantive power of deprivation of
life and personal liberty. The answer to this question in my opinion, should
plainly be in the negative. The suspension of the right to move a court for
the enforcement of the right contained in Article 21 cannot have the effect
of debarring an aggrieved person from approaching the courts with the
complaint regarding deprivation of life or personal liberty by an authority on
the score that no power has been vested in the authority to deprive a
person of life or liberty. The presupposition of the existence of substantive
power to deprive a person of ins life or personal liberty in Article 21 even
though that Article only mentions the procedure, would not necessarily point
to the conclusion that in the event of the suspension of the right to move
any court for the enforcement of Article 21, the suspension would also
dispense with the necessity of the existence of the substantive power. The
coexistence of substantive power and; procedure established by law for
depriving a person of ins life and liberty which is implicit in Article 21 would
not lead to the result that even if there is suspension of the right regarding
procedure, suspension would also operate upon the necessity of substantive
power. What is true of a proposition need not be true of the converse of that
proposition. The suspension of the right to move any court for the
enforcement of the right contained in Article 21 may have the effect of
dispensing with the necessity of prescribing procedure for the exercise of
substantive power to deprive a person of ins life or personal liberty, it can in
no case have the effect of permitting an authority to deprive a person of ins
life or personal liberty without the existence of substantive power. The close
bond which is there between the existence of substantive power of depriving
a person of Ms life or personal liberty and the procedure for the exercise of
that power, if the right contained in Article 21 were in operation, would not
necessarily hold good if that right were suspended because the removal of
compulsion about the prescription of procedure for the exercise of the
substantive power would not do away with the compulsion regarding the
existence of that power.

190. It is significant that there is a difference in the language of Article 21

and that of Article 31(1) wherein the framers of the Constitution said that no
one shall be deprived of ins property save by the authority of law. In

25-06-2021 (Page 81 of 305) www.manupatra.com SOAS Library Library

considering the effect of Presidential order suspending the right of a person
to move any court for enforcement of right guaranteed by Article 21, we
should not treat the words "except according to procedure established by
law" to be synonymous with "save by authority of law".

191. The President can in exercise o£ powers conferred by Article 359(1)

suspend when the proclamation of emergency is in operation, the right/to
move any court for the enforcement of such of the fundamental rights as
may be mentioned in the order. On the plain language of; Article 359(1), the
President has no power to suspend the right to move any court for the
enforcement of rights which are not fundamental rights conferred by Part III
of the Constitution. Rights created by statutes are not fundamental rights
conferred by Part III of the Constitution and as such enforcement of such
statutory rights cannot be suspended under Article 359(1). Likewise, Article
359(1) does not deal with obligations and liabilities which flow from
statutory provisions, and it would follow that an order under Article 359(1)
cannot affect those obligations and liabilities arising out of statutory
provisions. Nor can a Presidential order under Article 359(1) nullify or
suspend the operation of any statute enacted by a competent legislature.
Any redress sought from a court of law on the score of breach of statutory
provisions would be outside the purview of Article 359(1) and the
Presidential order made hereunder. The Presidential order cannot put the
detenu in a worse position than that in which he would be if Article 21 were
repealed. It cannot be disputed that if Article 21 were repealed, a detenu
would not be barred from obtaining relief under a statute in case there is
violation of statutory4 provisions. Likewise, in the event of repeal of Article
21, a detenu can rightly claim in a court of law that he cannot be deprived
of has life or personal liberty without the authority of law. Article 359(1)
ousts the jurisdiction of the court only in respect of matters specified therein
during the period of emergency. So far as matters not mentioned in Article
359(1) and the Presidential order thereunder are concerned, the jurisdiction
of the court is not ousted. A provision which has the effect of ousting the
jurisdiction of the courts should be construed strictly. No inference of the
ouster of the jurisdiction of the court can be drawn unless such inference is
warranted by the clear language of the provision ousting such jurisdiction. I
may in this context refer to the observations of the Constitution Bench of
this Court in the case of K. Anandan Nambiar and Anr. v. Chief Secretary,
Government of Madras and Ors. Gajendragadkar J. speaking for the
Constitution Bench observed:

In construing the effect of the Presidential order, it is necessary to

bear in mind the general rule of construction that where an order

25-06-2021 (Page 82 of 305) www.manupatra.com SOAS Library Library

 purports to suspend the fundamental rights guaranteed to the
citizens by the Constitution, the said order must be strictly
construed in favour of the citizens' fundamental rights.

192. I am also unable to accede to the argument that though the position
under law may be that no one can be deprived of ins right to life or personal
liberty without the authority of law, the remedy to enforce the right to life or
personal liberty is no longer available during the period of emergency
because of the suspension of right to move any court for enforcement of
right conferred by Article 21. The basic assumption of this argument is that
Article 21 is the sole repository of right to life and personal liberty. Such an
assumption, as already stated above, is not well founded. This apart, a
Presidential order under Article 359(1) cannot have the effect of suspending
the right to enforce rights flowing from statutes, nor can it bar access to the
courts of persons seeking redress on the score of contravention of statutory
provisions. Statutory provisions are enacted to be complied with and it is
not permissible to contravene them. Statutory provisions cannot be treated
as mere pious exhortations or words of advice which may be abjured or
disobeyed with impunity. Nor is compliance with statutory provisions
optional or at the sufferance of the official concerned. It is the presence of
legal sanctions which distinguishes positive law from other systems of rules
and norms. To be a legal system a set of norms must furnish sanctions for
some of its precepts. A legal sanction is usually thought of as a harmful
consequence to induce compliance with law. Non-compliance with statutory
provisions entails certain legal consequences. The Presidential order cannot
stand in the way of the courts giving effect to those consequences. To put it
differently, the executive authorities exercising power under a statute have
to act in conformity with its provisions and within the limits set out therein.
When a statute deals with matters affecting prejudicially the rights of
individuals, the ambit of the power of the authorities acting under the
statute would be circumscribed by its provisions, and it would not be
permissible to invoke some indefinite general powers of the executive. As
observed by Lord Atkinson in the case of Attorney General v. De Keyser's
Royal Hotel Ltd. [1920] A. C. 508, the constitutional principle is that when
the power of the Executive to interfere with the property or liberty of
subjects has been placed under Parliamentary control, and directly regulated
by statute, the Executive no longer derives its authority from the Royal
Prerogative of the Crown but from Parliament, and that in exercising such
authority the Executive is bound to observe the restrictions which
Parliament has imposed in favour of the subject. It is also not the result of
the Presidential order, as discussed elsewhere, that because of the
suspension of the right to move any court for enforcement of right under

25-06-2021 (Page 83 of 305) www.manupatra.com SOAS Library Library

Article 21, the remedy of a writ of habeas corpus ceases to be available
against the State. The Presidential order would not preclude a person from
challenging the validity of a law or order on grounds other than violation of
Articles 14, 19, 21 and 22. It may be pertinent to refer to a decision of this
Court in the case of Jaichand Loll Sethia v. State of West Bengal [1966] Su.
S .C. R. 464 wherein the Constitution Bench of this Court observed after
referring to the case of Makhan Singh (supra):

It was pointed out that during the pendency of the Presidential

order the validity of the Ordinance or any rule or order made
thereunder cannot be questioned on the ground that it contravenes
Articles. 14, 21 and 22. But this limitation cannot preclude a citizen
from challenging the validity of the Ordinance or any rule or order
made thereunder on any other ground. If the appellant seeks to
challenge the validity of the Ordinance, rule or order made
thereunder on any ground other than the contravention of Articles
14., 21 and 22, the Presidential order cannot come into operation.
It is not also open to the appellant to challenge the order on the
ground of contravention of Article 19, because as soon as a
Proclamation of emergency is issued by the President under Article
358 the provision of Article 19 are automatically suspended. But the
appellant can challenge the validity of the order on a ground other
than those covered by Article 358, or the Presidential order issued
under Article 359(1). Such a challenge is outside the purview of the
Presidential order. For instance, a citizen will not be deprived of the
right to move an appropriate Court for a writ of habeas corpus on
the ground that ins detention has been ordered mala fide. -
Similarly, it will be open to the citizen to challenge the order of
detention on the ground that any of the grounds given in the order
of detention is irrelevant and there is no real and proximate
connection between the ground given and the object which the
legislature has in view. It may be stated in this context that a mala
fide exercise of power does not necessarily imply any moral
turpitude as a matter of law. It only means that the statutory power
is exercised for purposes foreign to those for which it is in law
intended. In other words, the power conferred by the statute has
been utilized for some indirect purpose not connected with the
object of the statute or the mischief it seeks to remedy.

Similar view was expressed in the case of Durgadas Shirali v. Union of India
and Ors. MANU/SC/0092/1965 : 1966CriLJ812 In G. Sadanandan v. State of
Kerala and Anr. MANU/SC/0076/1966 : 1966CriLJ1533 the Constitution

25-06-2021 (Page 84 of 305) www.manupatra.com SOAS Library Library

Bench of this Court speaking through Gajendragadkar CJ. struck down a
detention order on the ground that it was mala fide.

193. Our founding fathers made Article 226 which confers power on the
High Court to issue inter alia writes in the nature of habeas corpus an
integral part of the Constitution. They were aware that under the US
Constitution in accordance with Article 1 Section IX the privilege of the writ
of habeas corpus could be suspended when in cases of rebellion or invasion
the public safety may require it. Despite that our founding fathers made no
provision in our Constitution for suspending the power of the High Courts
under Article 226 to issue writs in the nature of habeas corpus during the
period of emergency. They had perhaps in view the precedent of England
where there had been no suspension of writ of habeas corpus since 1881
and even during the course of First and Second World Wars. It would, in my
opinion, be not permissible to bring about the result of suspension of habeas
corpus by a strained' construction of the Presidential order under Article
359(1) even though Article 226 continues to remain in force during the
period of emergency.

194. The writ of habeas corpus ad subjiciendum, which is commonly known

as the writ of habeas corpus, is a process for securing the liberty of the
subject by affording an effective means or immediate release from unlawful
or unjustifiable detention, whether in prison or in private custody. By it the
High Court and the judges of that Court, at the instance of a subject
aggrieved, command the production of that subject, and inquire into the
cause of ins imprisonment. If there is no legal justification for the detention,
the party is ordered to be released. Release on habeas corpus is not,
however, an acquittal, nor may the writ be used as a means of appeal (see
Halsbury's Laws of England,, Vol. 11, Third Edition, page 24).

195. In Greene v. Secretary of State for Home Affairs [1942] A.C. 284 Lord
Wright observed:

It is clear that the writ of habeas corpus deals with the machinery
of justice, not the substantive law, except in so far as it can be said
that the right to have the writ is itself part of substantive law. It is
essentially a procedural writ, the object of which is to enforce a
legal right .... the inestimable value of the proceedings is that it is
the most efficient mode ever devised by any system of law to end
unlawful detainments and to secure a speedy release where the
circumstances and the law so required.

25-06-2021 (Page 85 of 305) www.manupatra.com SOAS Library Library

196. Writ of habeas corpus was described as under by Lord Birkenhead in
the case of Secretary of State for Home Affairs v. O'Brien [1923] A.C. 603
(609):

It is perhaps the most important writ known to the constitutional,

law of England, affording as it does a swift and imperative remedy
in all cases of illegal restraint or confinement. It is of immemorial
antiquity, an instance of its use occurring in the thirty third year of
Edward I. It has through the ages been jealously maintained by
courts of law as a check upon the illegal usurpation of power by the
executive at the cost of the liege.

197. The existence of the power of the courts to issue a writ of habeas
corpus is regarded as one of the most important characteristic of democratic
states under the rule of law. The significance of the writ for the moral health
of the society has been acknowledged by all jurists. Hallam described it as
the "principal bulwark of English liberty". The uniqueness) of habeas corpus
in the procedural armory of our law cannot be too often emphasised. It
differs from all others remethes in that it is available to bring into question
the legality of a person's restraint and to require justification for such
detention. Of course, this does not mean that prison doors may readily be
opened. It does mean that explanation may be exacted why they should
remain closed. It is not the boasting of empty rhetoric that has treated the
writ of habeas corpus as the basic safeguard of freedom. The great writ of
habeas corpus has been for centuries esteemed the best and sufficient
defence of personal freedom (see Human Rights & Fundamental Freedoms
by Jagdish Swarup, page 60).

198. As Article 226 is an integral part of the Constitution, the power of the
High Court to enquire in proceedings for a writ of habeas corpus into the
legality of the detention of persons cannot,, in my opinion, be denied.
Although the Indian Constitution, as mentioned by Mukherjea CJ. in the case
of Ram Jawaya Kapur (supra), has not recognised the doctrine of separation
of powers in its absolute rigidity, the functions of the different parts or
branches of the Government have been sufficiently differentiated and
consequently it can very well be said that our Constitution does not
contemplate assumption* by one organ or part of the State, of functions
that essentially belong to another. The executive can exercise the powers of
departmental or subordinate legislation when such powers are delegated to
it by the legislature. It can also, when so empowered exercise judicial
functions in a limited way. The executive however, can never go against the

25-06-2021 (Page 86 of 305) www.manupatra.com SOAS Library Library

provisions of the Constitution or of any law. To quota the words of Dr.
Ambedkar in the Constituent Assembly:

Every Constitution, so far as it relates to what we call parliament

democracy, requires three different, organs of the State, the
executive, the judiciary and the legislature. I have not anywhere
found in any Constitution a provision saying that the executive shall
obey the legislature, nor have I found anywhere in any Constitution
a provision that the executive shall obey the judiciary. Nowhere is-
such a provision to be found. That is because it is generally
understood that the provisions of the Constitution are binding upon
the different organs of the State. Consequently, it is to be presumed
that those who work the Constitution, those who compose the
Legislature and those who compose the executive and the judiciary
know their functions, their limitations and their duties. It is
therefore to be expected that if the executive is honest in working
the Constitution, then the executive is bound to obey the
Legislature without any kind of compulsory obligation laid down in
the Constitution.

Similarly, if the executive is honest in working the Constitution, it

must act in accordance with the judicial decisions given by the
Supreme Court. therefore my submission is that this is a matter of
one organ of the State acting within its own limitations and obeying
the supremacy of the other I organs of the State. In so far as the
Constitution gives a supremacy to that is a matter of constitutional
obligation which is implicit in the Constitution itself.

It was further observed by him:

No constitutional Government can function in any country unless

any particular constitutional authority remembers) the fact that its
authority is limited by the Constitution and that if there is any
authority created by the Constitution which has to decided between
that particular authority and any other authority, then the decision
of that authority shall be binding upon any other organ. That is the
sanction which this Constitution gives in order to see that the
President shall follow the advice of ins Ministers, that the executive
shall not exceed in its executive authority the law made by
Parliament and that the executive shall not give its own
interpretation of the law which is in conflict with the interpretation
of the judicial organ created by the Constitution.

25-06-2021 (Page 87 of 305) www.manupatra.com SOAS Library Library

Article 226 of the Constitution confers power upon the High Courts of issuing
appropriate writs in case it is found that the executive orders are not in
conformity with the provisions of the Constitution and the laws of the land.
Judicial scrutiny of executive orders with a view to ensure that they are not
violative of the provisions of the Constitution and the laws of the land being
an integral part of our constitutional scheme, it is not permissible to exclude
judicial scrutiny except to the extent such exclusion is warranted by the
provisions of the Constitution and the laws made in accordance with those
provisions.

199. There is, as already mentioned, a clear demarcation of the spheres of

function and power in our Constitution. The acceptance of the contention
advanced on behalf of the appellants would mean that during the period of
emergency, the courts would be reduced to the position of being helpless
spectators even if glaring and blatant instances of deprivation of life and
personal liberty in contravention of the statute are brought to their notice. It
would also mean that whatever may be the law passed by the legislature, in
the matter of life and personal liberty of the citizens, the executive during
the period of emergency would not be bound by it and would be at liberty to
ignore and contravene it. It is obvious that the acceptance of the contention
would result in a kind of supremacy of the executive over the legislative and
judicial organs of the State, and thus bring about a constitutional imbalance
which perhaps was never in the contemplation of the framers of the
Constitution. The fact that the government which controls the executive has
to enjoy the confidence of the legislature does not detract from the above
conclusion. The executive under our constitutional scheme is not merely to
enjoy the confidence of the majority in the legislature, it is also bound to
carry out the legislative intent as manifested by the statutes passed by the
legislature. The Constitution further contemplates that the function of
deciding whether the executive has acted in accordance with the legislative
intent should be performed by the courts.

200. The cases before us raise questions of utmost importance and gravity,
questions which impinge not only upon the scope of the different
constitutional provisions, but have impact also upon the basic values
affecting life, liberty and the rule of law. More is at stake in these cases than
the liberty of a few individuals or the correct construction of the wording of
an order. What is at stake is the rule of law. If it could be the boast of a
great English judge (Lord Mansfield in the case of James Sommersett) that
the air of England is too pure for a slave to breathe, cannot we also say with
justifiable pride that this sacred land shall not suffer eclipse of the rule of
law and that the Constitution and the laws of India do not permit life and

25-06-2021 (Page 88 of 305) www.manupatra.com SOAS Library Library

liberty to be at the mercy of absolute power of the executive, a power
against which there can be no redress in courts of law, even if it chooses to
act contrary to law or in an arbitrary and capricious manner. The question is
not whether there can be curtailment of personal liberty when there is
threat to the security of the State. I have no doubt that there can be such
curtailment, even on an extensive scale, in the face of such threat. The
question is whether the laws speaking through the authority of the courts
shall be absolutely silenced and rendered mute because of such threat.

201. No one can deny the power of the State to assume vast powers of
detention in the interest of the security of the State. It may indeed be
necessary to do so to meat the peril facing the nation. The considerations of
security of the State must have a primacy and be kept in the forefront
compared to which the interests of the individuals cart only take a
secondary place. The motto has to be "Who lives, if the country these".
Extraordinary powers are always assumed by the government in all
countries in times of emergency because of the extraordinary nature of the
emergency. The exercise of the power of detention, it is well-settled,,
depends upon the subjective satisfaction of the detaining authority and the
courts can neither act as courts of appeal over the decisions of the detaining
authority nor can they substitute their own opinion for that of the authority
regarding the necessity of detention. There is no antithesis between the
power of the State to detain a person without trial under a law of preventive
detention and the power of the court to examine the legality of such
detention. As observed by Lord Atkin in Rex v. Haluday [1917] A.C. 260
while dealing with the argument that the Defence of Realm Consolidation
Act of 1914 and the regulation made under it deprived the subject of ins
right under the several Habeas Corpus Acts,, that is an entire
misconception. 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. To quote the words of Lord Macmillan in the case of
Liversidge v. Anderson [1942] A.C. 206.

It is important to have in mind that the regulation in question is a

war measure. This is not to say that the Court sought to adopt in
war time canons of construction different from those 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. Rather the contrary.

25-06-2021 (Page 89 of 305) www.manupatra.com SOAS Library Library

In dealing with an application for a writ of habeas corpus, the court only
ensure that the detaining authorities act in accordance with the law of
preventive detention.

The impact upon the individual of the massive and comprehensive powers of
preventive detention with which the administrative officers are armed has to
be cushioned with legal safeguards against arbitrary deprivation of personal
liberty if the premises of the rule of law is not to lose its content and
become meaningless.
The chances of an innocent person being detained under a law providing for
preventive detention on the subjective satisfaction of an administrative
authority are much greater compared to the possibility of an innocent
person being convicted at trial in a court of law. It would be apposite in this
context to refer to the observations of Professor Alan M. Dershowite:

The available evidence suggest that our system of deter mining

past guilt results in erroneous conviction of relatively few innocent
people. We really do seem to practice what we preach about
preferring the acquittal of guilty men over the conviction of innocent
men.

But the indications are that any system of predicting future crimes
would result in a vastly larger number of erroneous confinements--
that is, confinements of persons predicted to engage in violent
crime who would not, in fact, do so. Indeed, all the experience with
predicting violent conduct suggests that in order to spot a
significant proportion of future violent criminals, we would have to
reverse the traditional maxim of the criminal law and adopt a
philosophy that it is 'better to confine ten people who would not
commit predicted crimes, than to release one who would.

(see p. 313 Crime, Law and Society by Goldstein and Gold-stein) .

It would, therefore, seem to be a matter of melancholy reflection if the

courts were to stay their hand and countenance laxity or condone lapses in
relation to compliance with requirements prescribed by law for preventive
detention.

202. In England there was no suspension of the power of the courts to issue
a writ of habeas corpus during the First World War and the Second World
War. In India also there was no absolute bar" to approaching the courts
during the Sino-Indian hostilities of 1962 and the Indo-Pak wars of 1965
and 1971. It has not been suggested that because of the existence of the

25-06-2021 (Page 90 of 305) www.manupatra.com SOAS Library Library

powers of the court to issue writs of habeas corpus war efforts were in any
way prejudicially affected. The United Nations' Economic and Social Council
endorsed the general agreement reached at the Baguio Seminar that "the
writ of habeas corpus or similar remedy of access to the courts to test to
legality and bona-fides of the exercise of the emergency powers should
never be denied to the citizen". It drew attention to the following passage
from the report of the seminar ; "All members recognised that in times of
emergency it might be necessary to restrict temporarily the freedom of the
individual. But they were firmly of the view that, whatever temporary
restrictive measures might be necessary, recourse to the courts through the
right of habeas corpus or other similar remedy should never be suspended.
Rather the legislature could, if necessary,, subject to well defined
procedures safeguarding human dignity, authorise the temporary detention
of persons for reasons specified in the law. By that means 'the executive can
act as emergency may require but the ultimate judicial protection of
individual liberty is preserved. Members hold strongly that it is a
fundamental principle that the individual should never be deprived of the
means of testing the legality of ins arrest or custody by recourse to judicial
process even in times of emergency. If that principle is departed from, the
liberty of the individual is immediately put in great peril".

203. I am, therefore, of the view that there is no sufficient ground to

interfere with the view taken by all the nine High Courts which went into the
matter, that the Presidential order of June 27, 1975 did not affect the
maintainability of the habeas corpus petitions to question the legality of the
detention orders and that such petitions could be proceeded with despite
that order.

204. We may now deal with the second question regarding the scope and
extent of judicial scrutiny in petitions for writ of habeas corpus relating to
persons detained under MISA. For this purpose it would be appropriate to
first deal with the position under the above law so far as cases not covered
by Section 16A are concerned.

205. According to Section 3(1) of MISA, the authorities specified in the Sub-
section may if satisfied with respect to any person (including a foreigner)
that with a view to preventing him from acting in any manner prejudicial to
(i) the defence of India, the relations of India with foreigner powers, or the
security of India, or (ii) the security of the State or the maintenance of
public order, or (iii) the maintenance of supplies and services essential to
the community, it is necessary so to do make an order that such person be
detained. The words "if satisfied" indicate that the satisfaction of the

25-06-2021 (Page 91 of 305) www.manupatra.com SOAS Library Library

authority concerned is a condition precedent to the making of a detention
order. Unless therefore the authority concerned is satisfied on the material
before it that it is necessary to detain a person with a view to prevent him
from indulging in any of the specified prejudicial activities, it has no power
to make an order for ins detention. Section 3 also contains an implied
injunction that the said authority shall not detain a person under that
Section for reasons other than those specified therein. Although the
satisfaction contemplated by the Sub-section is the subjective satisfaction of
the authority concerned, it is necessary that it should be arrived at in an
objective manner. It is consequently essential that the facts on the basis of
which file authority concerned reaches the conclusion that it is necessary to
detain a person should have a rational nexus or probative value and be
germane to the object for which such detention is allowed under Section
3(1) of MISA. In case the facts which are taken into account are extraneous,
not germane or do not have any live link or reasonable connection with the
object for which the detention order can be made, the order would be liable
to be quashed. Even if one out of the many grounds on which a detention
order is based is not germane or legally not tenable, the detention order
would be quashed because it is difficult to predicate that the detaining
authority would have come to the requisite satisfaction even in the absence
of that ground. It is plainly not possible to estimate as to how far the
irrelevant or untenable ground operated on the mind of the appropriate
authority and contributed to the creation of the satisfaction on the basis of
which the detention order was made. To say that the other ground which
still remains is quite sufficient to sustain the order would be to substitute an
objective judicial test for the subjective decision of the executive authority
which is against the legislative policy underlying the statute.

206. A law of preventive detention is not punitive but precautionary and

preventive. The power of detention under such law is based on circumstance
of suspicion and not on proof of allegations is required at a regular trial for
the commission of an offence. Such a power is exercised because of
apprehension of future prejudicial activity on the part of the person ordered
to be detained judged in the light of ins past conduct and propensity. The
order for preventive detention in such cases postulates prior restraint so
that the mischief apprehended at the hands of the person ordered to be
detained might not materialise. The consequences of waiting and declining
to take action against that person till the mischief is actually done would
quite often be disastrous and the nation may in some cases have to pay a
heavy price for such abstention. The quantum of material available
regarding the conduct and propensity of a person may not be sufficient to
warrant ins conviction in a court of law for an offence and yet if the material

25-06-2021 (Page 92 of 305) www.manupatra.com SOAS Library Library

is germane to the object for which detention order can legally be made and
the detaining authority is satisfied in view of that material regarding the
necessity of making a detention order, such order-made by that authority
would be upheld as being in accordance with law. It is also not difficult to
visualise a situation wherein serious, crimes are committed in broad daylight
and yet the witnesses to the, crime are so much terrified and awestricken
that they dare not depose against the culprits in a court of law. In such
cases also because of the difficulty of securing the conviction of the culprits,
the courts have upheld the detention orders, if the activities of the culprits
are of such a nature as has a nexus with the object for which detention
order can be made. In a petition for a writ of habeas corpus the courts do
not normally question the veracity and sufficiency of the material on the
basis of which the authority concerned arrives at the conclusion regarding
the necessity of detention. In case the detenu challenges the correctness, or
'truth of the allegations on the basis of which the detention order is made,
he should normally do so by means of representation contemplated by
Clause (5) of Article 22. It is legitimate to expect that the authority
concerned and the advisory board when the matter comes up before them
shall take into account the stand taken by the detenu regarding those
allegations. It would be also their function to give consideration to any fresh
material which may be produced before them regarding the truth and
correctness of those allegations. In a habeas corpus petition, if it becomes
apparent on the record from, the admission made by the detaining authority
in the return or some other evidentiary material of unquestioned
authenticity and probative value that some of the alleged facts upon the
basis of which detention order is made are non-existent, the court would be
well justified in quashing the detention order. A court apart from that cannot
go behind the truth of the alleged facts. If the material is germane to the
object for which detention is legally permissible and an order for detention is
made on the basis of that material, the courts cannot sit as a court of
appeal and substitute their own opinion for that of the authority concerned
and hold that the authority concerned should not have arrived at the
conclusion regarding the necessity of detention. At the same time, it is
necessary that the authority concerned before deciding to detain a person
should apply its mind to the facts before it in a fair and reasonable manner.
If the conclusion arrived at is so unreasonable that no reasonable authority
could ever come to it, the legitimate inference would be that the authority
concerned did not apply its mind to the relevant facts and did not honestly
arrive at the conclusion. To use the words of Lord Halsbury in Shrape v.
Wakefield [1891] A.C. 172:

25-06-2021 (Page 93 of 305) www.manupatra.com SOAS Library Library

 ...when it is said that something is to be done within the discretion
of the authorities that something is to be done according to the
rules of reason and justice, not according to private opinion ....
according to law and not humour. It is to be, not arbitrary, vague,
fanciful, but legal and regular.

Likewise, if there were no grounds, as observed by Lord Morton in Ross v.

Papadopollos [1958] 2 All. E..R. 23, or which the authority concerned could
be satisfied, the court might infer either that the authority did not honestly
form that view or that in forming it, the authority could not have applied its
mind to the relevant facts. The courts would also interfere if the power of
detention is exercised malafide, not in good faith or for an ulterior purpose.
It would follow from the above that if the power of detention is exercised for
an improper purpose, i.e., a purpose not contemplated by the statute, the
order for detention would be quashed.

207. Between malice in fact and malice in law, as observed by Viscount

Haldane L.C. in the case of Shearer v. Shields [1914] A. C. 808, there is a
broad distinction which is not peculiar to any particular system of
jurisprudence. A person who inflicts an injury upon another person in
contravention of the law is not allowed to say that he did so with an
innocent mind; he is taken to know the law, and he must act within the law.
He may, therefore, be guilty of malice in law, although, so far as the state of
ins mind is concerned, he acts ignorantly, and in that sense innocently.
Malice in fact is quite a different thing; it means an actual malicious
intention on the part of the person who has done the wrongful act, and it
may be, in proceedings based on wrongs independent of contract, a very
material ingredient in the question of whether a valid cause of action can be
stated. The above principle was applied by this Court in detention matters in
Bhut Nath v. State of West Bengal MANU/SC/0412/1974 : 1974CriLJ690 .

208. Normally, it is the past conduct or antecedent history of a person which

shows a propensity or a tendency to act in a particular manner. The past
conduct or antecedent history of a person can, therefore, be appropriately
taken into account in making a detention order. It is indeed largely from the
past events showing tendencies or inclinations of a person that an inference
can be drawn that he is likely in the future to act in a particular manner. In
order to justify such an, inference, it is necessary that such past conduct or
antecedent history should ordinarily be proximate in point of time. It would,
for instance, be normally irrational to take into account the conduct an
activities of a person which took place ten years, before the date of ins
detention and say that even though after the said incident took place*

25-06-2021 (Page 94 of 305) www.manupatra.com SOAS Library Library

nothing is known against the person indicating ins tendency to act in a
prejudicial manner, even so on the strength of the said incident which is ten
years old, the authority is satisfied that ins detention is necessary. It is both
inexpedient and undesirable to lay down an inflexible test as to how far
distant the past conduct or the antecedent history should be for reasonably
and rationally justifying the conclusion that the person concerned if not
detained may indulge in prejudicial activities. The nature of the activity
would have also a bearing in deciding the question of proximity. If, for
example, a person who has links with a particular' foreign power is known to
have indulged in subversive activities when hostilities broke out with that
foreign power and hostilities again break out with that foreign power after
ten years, the authorities concerned, if satisfied on the basis of the past
activities that it is necessary to detain him with a view to preventing him
from acting; in a manner prejudicial to the security of India, might well pass
a detention order in respect of that person. The fact that in such a case
there is a time lag of ten years between the activities of the said person and
the making of the detention order would not vitiate such an order. Likewise,
a remote prejudicial activity may be so similar to a recent prejudicial activity
as may give rise to an inference that the two are a part of chain of
prejudicial activities indicative of a particular inclination. In such an event
the remote activity taken along with the recent activity would retain its
relevance and reliance upon it would not introduce an infirmity. If, however,
in a given case and in the context of the nature of activity the time lag
between the prejudicial activity of a detenu and the detention order made
because of that activity is ex facie long, the detaining authority should
explain the delay in the making of the detention order with a view to show
that there was proximity between the prejudicial activity and the) detention
order. If the detaining authority fails to do so, in spite of an opportunity
having been afforded to it, a serious infirmity would creep into the detention
order (see Rameshwar Singh v. District. Magistrate Burdwan and Anr.
MANU/SC/0041/1963 : 1964CriLJ257 and Sk. Abdul Munnaf v. State of West
Bengal MANU/SC/0210/1974 : 1974CriLJ1233 .

209. One other requirement of a valid order of detention is that the grounds
of detention which are communicated to the detenu should not be vague so
that he may not be handicapped in making an effective representation
against the detention order. Both Article 22(5) of the Constitution and
Section 8(1) of MISA refer to such representation and provide that the
detaining authority shall as soon as may be, and in any case not later than
the prescribed period, communicate to the person detained the grounds on
which the detention order has been made "and shall afford him the earliest
opportunity of making representation against the order". In view of the

25-06-2021 (Page 95 of 305) www.manupatra.com SOAS Library Library

Presidential order suspending the right of a person to move any court for
enforcement of specified fundamental rights, including the one under Article
22(5), it may with plausibility be argued that the vagueness of grounds of
detention would not warrant the quashing of such detention order during the
pendency of the Presidential order on the score of violation of Article 22(5).
The Presidential order would, however, not stand in the way of the court
quashing the detention order on the score of the infirmity of the vagueness
of grounds of detention because of the contravention of Section 8(1) of
MISA.

210. Every law providing for preventive detention contains certain

procedural safeguards. It is imperative that there should be strict
compliance with the requirements of those procedural safeguards to sustain
the validity of detention. Detention without trial results in serious inroads
into personal liberty of an individual. In such cases it is essential to ensure
that there is no deviation from the procedural safeguards provided by the
statute. In the matter of even a criminal trial, it is procedure that spells out
much of the difference between the rule of law and the rule by whim and
caprice. The need for strict adherence to strict procedural safeguards is
much greater when we are dealing with preventive detention which
postulates detention of a person even though he is not found guilty of the
commission of an offence. To condone or allow relaxation in the matter of
compliance with procedural requirements would necessarily have the effect
of practically doing away with even the slender safeguards provided by the
legislature against the arbitrary use of the provisions relating to preventive
detention. The history of personal liberty,, we must bear in mind, is largely
the history of insistence upon procedure. I am, therefore, of the view that it
would be wholly inappropriate to countenance any laxity in the matter of
strict compliance with procedural requirements prescribed for preventive
detention. The observations made in the case of Kishori Mohan v. State of
West Bengal A. I. R. 1974 S. C. 1749 have relevance. It was observed by
this Court in that case:

The Act confers extraordinary power on the executive to detain a

person without recourse to the ordinary laws of the land and to trial
by courts. Obviously, such power places the personal liberty of such
a person in extreme peril against which he is provided with a
limited right of challenge only. There can, therefore, be no doubt
that such a law has to be strictly construed. Equally also, the power
conferred by such a law has to be exercised with extreme care and
scrupulously within the bounds laid down in such a law.

25-06-2021 (Page 96 of 305) www.manupatra.com SOAS Library Library

211. Question then arises as to how far are the recitals in the order of
detention binding upon the court, and upon whom and to what extent does
the onus lie in a petition for a writ of habeas corpus relating to a detained
person. In this respect I find that in the case of King Emperor v. Sibnath
Banerji 71 I. A. 241 the Judicial Committee, speaking through Lord
Thankerton,, approved the following observation of the learned Chief Justice
of the Federal Court:

It is quite a different thing to question the accuracy of a recital

contained in a duly authenticated order, particularly where the
recital purports to state as a fact the carrying out of what I regard
as a condition necessary to the valid making of that order. In the
normal case the existence of such a recital in a duly authenticated
order will, in the absence of any evidence as to its accuracy, be
accepted by a court as establishing that the necessary condition
was fulfilled. The presence of the recital in the order will place a
difficult burden on the detenu to produce admissible evidence
sufficient to establish even a prima facie case that the recital is not
accurate.

The matter was considered by this Court by the Constitution Bench of this
Court in- the case of G. Sadanandan v. State of Kerala and Anr. (supra) and
it was observed' as under:

After all, the detention of a citizen in every case is the result of the
subjective satisfaction of the appropriate authority; and so, if a
prima facie case is made by the petitioner that ins detention is
either mala fide, or is the result of the casual approach adopted by
the appropriate authority, the appropriate authority should place
before the Court sufficient material in the form of proper affidavit
made by a duly authorised person to show that the allegations
made by the petitioner about the casual character of the decision'
or its mala fides, are not well-founded. The failure of respondent
No. 1 to place any such material before us in the present
proceedings leaves us no alternative but to accept the plea made by
the petitioner that the order of detention against him on the 20th
October, 1965,, and more particularly, ins continued detention after
the 24th October, 1965, are totally invalid and unjustified.

The initial burden is on the detenu to show that ins detention is mala fide or
not in accordance with law. If the detenu makes out a prima facie case, the
burden shifts on the State and it becomes essential for the State to file a

25-06-2021 (Page 97 of 305) www.manupatra.com SOAS Library Library

good return. Once substantial disquieting doubts are raised by the detenu in
the mind of the court regarding the validity of ins detention, it would be the
bounden duty of the State to dispel those doubts by placing sufficient
material before the court with a view to satisfy it about the validity of the
detention. In case the detenu fails to discharge the initial burden, ins
petition for writ of habeas corpus would be dismissed. Even if the detenu
discharges the initial burden and makes out a prima facie case against the
validity of ins detention, but the State files a good return and adduces
sufficient material before the court to show that ins detention is valid, the
detenu's petition would be dismissed. In case, however,, the detenu
discharges the initial burden and makes out a prima facie case against the
validity of ins detention and the State fails to file a good return and does not
place sufficient material on the record to show that the detention is valid, a
serious infirmity would creep into the State case as might justify
interference by the court and release of the detenu. More than that, it is not
necessary to say for everything in the final analysis would depend upon the
individual facts of the case.

212. We may now turn to the newly added Section 16A of MISA. This
Section was inserted by Section 6 of Act 39 of 1975 with effect from June
29, 1975. Subsequently, there was a further amendment of Section 16A by
Act 14 of 1976 which was published on January 25, 1976. According to Sub-
section (1) of Section 16A, the provisions of the Section would have effect
notwithstanding anything contained in MISA or any rules of natural justice
during the period of emergency proclaimed on December 3, 1971 and June
25, 1975 or a period of 12 months from June 25,, 1975 whichever period
was the shortest. Sub-sections (2) and (3) provides for the making of a
declaration to that effect by the authorities concerned if they are so satisfied
on consideration that it is necessary to detain a person for effectively
dealing with the emergency. Sub-section (2) deals with cases of persons
against whom orders of detention were made under the Act on or after June
25, 1975 but before the combine into force of this section, viz., June 29,
1975, while Sub-section (3) deals with cases of detention in respect of
persons against whom orders for detention were made after the coming into
force of the section. The proviso to Sub-section (3) provides for review and
the necessity of confirmation within fifteen days of the declaration by the
State Government in case such declaration is made by an officer
subordinate to the State Government. Sub-section (2A) provides for deemed
approval of a detention order made by an officer subordinate to the State
Government in case the State Government makes a declaration that the
detention of the person ordered to be detained is necessary for dealing
effectively with the emergency. Sub-section (4) provides for reconsideration

25-06-2021 (Page 98 of 305) www.manupatra.com SOAS Library Library

at intervals not exceeding four months of the necessity of detention of a
person in respect of whom a declaration is made under Sub-section (2) or
(3). According to Sub-section (5), in making any review, consideration or
reconsideration under Sub-sections (2), (3) or (4), the appropriate
Government or officer may act on the basis of the information and materials
in its or ins possession without communicating or disclosing any such
information or materials to the person concerned or affording him any
opportunity of making any representation against the making under Sub-
section (2)M or the making or confirming under Sub-section (3), or the non-
revocation under Sub-section (4), of the declaration in respect of him. Sub-
sections (6) and (7) provide inter alia that Sections 8 to 12 shall not apply
in the case of a person detained under a detention order to which the
provisions of Sub-sections (2) and (3) apply. Sub-section (8) authorises the
Central Government whenever it considers it necessary so to do to require
the State Government to furnish to the Central Government the information
and materials on the basis of which declaration has/ been made or
confirmed' or not revoked and such other information and materials as the
Central Government may deem necessary.

213. It would appear from what has been stated above that once a
declaration is made with respect to a detenu under Sub-sections (2). or (3)
of Section 16A of MISA, the provisions of Sections 8 to 12 of MISA would not
apply to such a detenu. The result would be that the grounds of the order of
detention would not be disclosed to the person affected by the order. There
would also be no reference of the case of such a person to the Advisory
Board.

214. We may now turn to Sub-section (9) of Section 16A. According to this
Sub-section, notwithstanding anything contained in any other law or any
rule haying the force of, law, the grounds on which an order of detention is
made or purported to be made under Sections against any person in respect
of whom a declaration is made under Sub-section (2) or Sub-section (3) and
any information or materials on which such grounds or a declaration under
Sub-section (2) or a declaration or confirmation under Sub-section (3) or
the non-revocation under Sub-section (4) of a declaration are based, shall
be treated as confidential, and shall be deemed to refer to matters of State
and to be against the public interest to disclose and save as otherwise
provide-ed in this Act, no one shall communicate or disclose any such
ground information or material or any document containing such ground
information or material. According to Clause (b) of Sub-section (9) no
person against whom an order of detention is made or purported to be
made under Section 3 shall be entitled to the communication or disclosure

25-06-2021 (Page 99 of 305) www.manupatra.com SOAS Library Library

of any such ground, information or material as is referred to in Clause (a) or
the production to him of any document containing such ground, information
or material.

215. So far as the impact of Section 16A(9) is concerned on the extent of

the power of judicial scrutiny in writs of habeas corpus relating to persons
detained under MISA, I am of the view that the matter should not be gone
into in these appeals for the following reasons.

216. Out of the nine High Courts which dealt with the question of
maintainability of petitions for writs of habeas corpus, only two, namely,
Rajasthan High Court and Nagpur Bench of Bombay High Court have gone
into this aspect, while the other seven have not expressed any view in the
matter. Both Rajasthan High Court and Nagpur Bench of the Bombay High
Court have upheld the validity of; Section 16A(9). While Rajasthan High
Court has not read down the provisions of Section 16A(9), the Nagpur
Bench of the Bombay High Court has expressed the view that it would be
permissible for the High Court to call for and peruse the grounds in certain
circumstances. The Nagpur Bench, it may be pointed out, dealt with the
provisions of Section 16 A(9), as they then existed before its amendment by
Act 14 of 1976.

217. Before; us arguments have been addressed on behalf of the

respondents challenging the validity of Section 16A(9) on the ground that it
is violative of Article 226 inasmuch as it prevents, the High Court from
effectively exercising the jurisdiction under that Article to issue writs of
habeas corpus. In my opinion, it would not be permissible in these appeals
against orders disposing of preliminary objection to decide the question of
validity of Section 16A(9). It is manifest that any decision on the question of
the validity of Section 16A(9) would result either in upholding the validity of
the provision or in; striking it down. The latter course is out of question for
it would be plainly impermissible to strike down the provision in appeal by
the State when the validity of such provision has been upheld by the High
Court. Likewise, it would be impermissible in these appeals to record a
finding that the ambit of judicial scrutiny is greater than that found by the
High Court even though this Court on consideration of the relevant
provisions comes to that conclusion. There is no appeal before us by the
detenu-respondents. This Court in appeal by the State cannot enlarge the
area of the unfavorable decision qua the State and make its position worse
compared to what it was before the filing of the appeal. Procedural propriety
in matters relating to appeals forbids such a course. The appeals before us
are primarily against the orders of the High Court disposing of the

25-06-2021 (Page 100 of 305) www.manupatra.com SOAS Library Library

preliminary objections relating to the maintainability of petitions under
Article 226 for writs of habeas corpus in view of the Presidential order. The
question of extent of judicial scrutiny in the light of Section 16A should, in
ray opinion, be gone into when the whole matter is at large before us and
we are not inhibited by procedural and other constraints from going into
certain aspects which have a vital bearing. It is primarily for the High Courts
before which the matters are pending to decide the question of area of
judicial scrutiny in the light of Section 16A(9), as amended by Act 14 of
1976. A course which has the effect of bypassing the High Courts and
making this Court in appeals from orders on preliminary objection to decide
the matter even before tile matter has been considered by the High Court in
the light of Section 16A, as amended by Act 14 of 1976,, should, in my
opinion, be avoided.

218. The observations on pages 658 and 659 in the case of K. Synthetics
Ltd. v. J. K. Synthetics Mazdoor Union MANU/SC/0495/1971 :
(1972)IILLJ552SC can be of no assistance in this case because what has
been laid down there is that the respondent can support an award of an
Industrial Tribunal on a ground not adopted by the Tribunal so long as in the
final result the amount awarded is not exceeded. The observations in that
case do not warrant the enlargement of the area of unfavourable decision
against an appellant in the absence of an appeal by the respondent. Nor
does that decision justify adoption of a course which might conceivably lead
to such result. Likewise, no assistance can be derived from Clause (3) of
Article 132 of the Constitution because of the fact that the appeal against
the order of the Rajasthan High Court has been filed in pursuance of a
certificate of fitness granted under that article. The only point on which the
Rajasthan High Court has decided against the appellant is regarding the
maintainability of the petition under Article 226. The effect of Article 132(3)
would only be that it would be permissible to assail the order of the High
Court on the question of maintainability of the petition under Article 226 not
only on the ground relating to the question of law as to the interpretation of
the Constitution mentioned in the order granting the certificate but also with
the leave of this Court on other grounds. It is, however, not the effect of
Article 132(3) that if the High Court in the impugned order decides two
distinct preliminary issues, one in favour of one party and the other in
favour of the opposite party, this Court in an appeal by only one party
against that order of the High Court can also go into the correctness of the
issue which has been decided in favour of the appellant. The fact that the
respondents in these appeals have as a matter of abundant caution
addressed arguments on sub-section (9) of Section 16A, so that the
submissions of the appellants on that point may not remain unanswered,

25-06-2021 (Page 101 of 305) www.manupatra.com SOAS Library Library

would not justify departure from the principle that this Court cannot, in the
absence of an appeal by the respondent, adopt a course which might
conceivably enlarge the area of unfavourable decision against the appellant.

219. I am, therefore, of the view that the appropriate occasion for going
into the question of the constitutional validity of Section 16A(9) of MISA and
its impact on the power and extent of judicial scrutiny in writs of habeas
corpus would' be when the State or detenu, whosoever is aggrieved, comes
up in appeal against the final judgment in any of the petitions pending in the
High Courts. The whole matter would then be at large before us and we
would not be inhibited by procedural and other constraints referred to
above. It would not, in my opinion, be permissible or proper to short circuit
the whole thing and decide the matter by bypassing the High Courts who
are seized of the matter.

220. I may now summaries my conclusions:

(1) Article 21 cannot be considered to be the sole repository of the

right to life and personal liberty.

(2) Even in the absence of Article 21 in the Constitution, the State

has got no power to deprive a person of ins life or personal liberty
without the authority of law. That is the essential postulate and
basic assumption of the rule of law in every civilised society.

(3) According to law in force in India before the coming into force of
the Constitution, no one could be deprived of Ms life or personal
liberty without the authority of law. Such a law continued to be in
force after the coming into force of the Constitution, in view of
Article 372 of the Constitution.

(4) Startling consequences would follow from the acceptance of the

contention that consequent upon, the issue of the Presidential order
in question no one can seek relief from courts during the period of
emergency against deprivation of life and personal liberty. If two
constructions of the Presidential order were possible, the court
should lean in favour of a view which does not result in such
consequences. The construction which does not result in such
consequences is not only possible, it is also preeminently
reasonable.

(5) In a long chain of authorities this Court has laid stress upon the
prevalence of the rule of law in the country, according to which the

25-06-2021 (Page 102 of 305) www.manupatra.com SOAS Library Library

 executive cannot take action prejudicial to the right of an individual
without the authority of law. There is no valid reason to depart from
the rule laid down in those decisions,, some of which were given by
Benches larger than the Bench dealing with these appeals.

(6) According to Article 21, no one can be deprived of ins life or

personal liberty except in accordance with procedure established by
law. Procedure for the exercise of power of depriving a person of ins
life or personal liberty necessarily postulates the existence of the
substantive power. When Article 21 is in force, law relating to
deprivation of life and personal liberty must provide both for the
substantive power as well as the procedure for the exercise of such
power. When right to move any court for enforcement of right
guaranteed by Article 21 is suspended, it would have the effect of
dispensing with the necessity of prescribing procedure for the
exercise of substantive power to deprive a person of ins life or
personal liberty, it cannot have the effect of permitting an authority
to deprive a person of ins life or personal liberty without the
existence of such substantive power.

(7) A Presidential order under Article 359(1) can suspend during the
period of emergency only the right to move any court for
enforcement of the fundamental rights mentioned in the Order.
Rights created by statutes being not fundamental rights can be
enforced during the period of emergency despite the Presidential
order. Obligations and liabilities flowing from statutory provisions
likewise remain unaffected by the Presidential order. Any redress
sought from a court of law on the score of breach of statutory
provisions would be outside the purview of Article 359(1) and the
Presidential order made thereunder.

(8) Article 226 under which the High Courts can issue writs of
habeas corpus is an integral part of the Constitution. No power has
been conferred upon any authority in the Constitution for
suspending the power of the High Court to issue writs in the nature
of habeas corpus during the period of emergency. Such a result
cannot be brought about by putting some particular construction on
the Presidential order in question.

(9) There is no antithesis between the power of the State to detain

a person without trial under a law of preventive detention and the
power of the court to examine the legality of such detention. In

25-06-2021 (Page 103 of 305) www.manupatra.com SOAS Library Library

 exercising such power the courts only ensure that the detaining
authority acts in accordance with the law providing for preventive
detention.

(10) There is no sufficient ground to interfere with the view taken

by all the nine High Courts which went into the matter that the
Presidential order dated June 27, 1975 did not affect the
maintainability of the habeas corpus petitions to question the
legality of the detention orders.

(11) The principles which should be followed by the courts in

dealing with petitions for writs of habeas corpus to challenge the
legality of detention are well-established.

(12) The appropriate occasion for this Court to go into the

constitutional validity of Section 16A(9) of MISA and its impact on
the power and extent of judicial scrutiny in writs of habeas corpus
would be when the State or a detenu, whosoever is aggrieved,
comes up in appeal against the final judgment in any of the
petitions pending in the High Courts. The whole matter would then
be at large before this Court and it would not be inhibited by
procedural and other con straits. It would not be permissible or
proper for this Court to short circuit the whole thing and decide the
matter by by-passing the High Courts who are seized of the matter.

221. Before I part with the case, I may observe that the conscious ness that
the view expressed by me is at variance with that of the majority of my
learned brethren has not stood in the way of my ex pressing the same. I am
aware of the desirability of unanimity, if possible. Unanimity obtained
without sacrifice of conviction comments the decision to public confidence.
Unanimity which is merely formal and which is recorded at the expense of
strong conflicting views is not desirable in a court of last resort. As observed
by Chief Justice Hughes Prophets' with Honor by Alan Earth 1974 Ed. p. 3-6
judges are not there simply to decide cases, but to decide them as they
think they should be decided, and while if may be regrettable that they
cannot always agree, it is better that their independence should be
maintained and recognized than that unanimity should be secured through
its sacrifice, A dissent in a court of last resort to use ins words, is an appeal
to the brooding spirit of the law. to the intelligence of a future day, when a
later decision may possibly correct the error into which the dissenting judge
believes the court to have been betrayed.

25-06-2021 (Page 104 of 305) www.manupatra.com SOAS Library Library

222. The appeals are disposed of accordingly.

-------------------------------------------------

M. Hameedullah Beg, J.

223. The two principal questions placed before us for determination in these
appeals from decisions given by various High Courts, on certain preliminary
objections to the maintainability and hearing of Habeas Corpus petitions,
under Article 226 of our Constitution, have been stated as follows by the
Attorney General of India:

1. Whether, in view of the Presidential Order dated June 27, 1975,

under Clause (1) of Article 359, any writ petition is maintainable
under Article 226, before a High Court for Habeas Corpus to enforce
the right to personal liberty of a person detained under the
Maintenance of Internal Security Act on the ground that the order
of detention or the continued detention is, for any reason, not
under or in compliance with Maintenance of Internal Security Act ?

2. If such a petition is maintainable, what is the scope or extent of

judicial scrutiny, particularly, in view of the aforesaid Presidential
Order which covers, inter alia, Clause (5) of Article 22, and also in
view of Sub-section (9) of Section 16A of the Maintenance of
Internal Security Act?

224. If the only reason on which a detention is assailed, could be that the
provisions of the Maintenance of Internal Security Act 26 of 1971
(hereinafter referred to as 'the Act') have not been complied with, there
could be little difficulty in holding, having regard to the natural and obvious
meaning of the suspension of "the right to move any Court for the
enforcement" of the fundamental right to personal liberty, protected by
Article 21 of the Constitution, that this right, with whatever it evolved from;
or embraced, could not be the basis for any claim to its enforcement during
the emergency. All that would then remain to consider would be the exact
point at which and the form in which the order of the Court denying the
petitioner an enforcement of the right could be passed. The last part of the
first question, however, also brings into the area of discussion the case
where a petitioner alleges that "for any reason" ins detention falls
completely outside the Act. Detenues allege not merely infraction of some
provision of the Act, under which a detention is ordered, but, more often,
that the detention is for extraneous reasons falling either entirely or partially
outside the Act. "Mala fides" is almost invariably alleged presumably on the

25-06-2021 (Page 105 of 305) www.manupatra.com SOAS Library Library

assumption that almost everything the detenue considers either wrong or
erroneous or improper must be "mala fide".

225. Arguments addressed to us on behalf of the detenues have raised a

host of hypothetical questions, such as : What would be the position if the
order of detention, on the face of it, either falls outside the provisions of the
Act or is made mala fide ? Would a detention order, by any Government
servant without even an ostensible or purported statutory authority to
support it, not stand on the same footing as a detention by a private
person? Would remedy against detention which may be patently illegal,
without need for any real investigation into facts at all also be barred ?
Could remedy by way of a writ of Habeas Corpus against any illegal
detention by any one in this country, under any circumstances, be held to be
suspended during the emergency ? The next steps in the argument on
behalf of detenues consisted of attempts to show that there could be no
distinction in principle, between an order which is, prima facie, ultra vires or
made mala fide and one which can be shown to be that only if the facts and
circumstances surrounding a detention were fully investigated in a Court.
Processes of reasoning, based on hypothetical cases put forward for
consideration by us, by learned Counsel for the detenus seek, by stages to
so expand the area of maintainability and investigation on claims for writs of
Habeas Corpus in the High Courts that, if we accept them, the result would
be that Article 359 of the Constitution and the Presidential orders of 1975
made under it would become entirely meaningless and in fructuous.

226. It seems to me that the two questions set out above, could very well
be compressed into a single question : To what extent, if at all, can a, High
Court be moved to assert a right to personal liberty, by means of a petition
under Article 226 for a writ of Habeas Corpus during the operation of the
Presidential order of 27th June, 1975 ?

227. Speaking for myself, I am extremely reluctant to embark on a

consideration and decision of any "pure" question of law. In cases coming up
before Courts, no question of law can be "pure" in the sense that it has no
bearing on the facts of a particular case to which it must necessarily be
related. Neither Article 136 nor Article 226 of the Constitution is meant for
the exercise of an advisory jurisdiction. Attempts to lay down the law in an
abstract form, unrelated to the facts of particular cases, not only do not
appertain to the kind of jurisdiction exercised by this Court or by the High
Courts under the provisions mentioned above, but may result in
misapplications of the law declared by Courts to situations for which they
were not intended at all.

25-06-2021 (Page 106 of 305) www.manupatra.com SOAS Library Library

228. Learned Counsel for the detenus have tried to induce us to answer
many questions which may arise in purely hypothetical situations some of
which seem to me to be far removed from the realms of reality. We cannot
assume that those who exercise powers of detention are bound to do so, as
a rule, as though they were demented repots--without any regard for law,
justice, reason, or honesty of purpose, solely for achieving objects other
than those which are really meant to be served by the Act. Both sides,
however, desire that we should answer questions indicated above on the
assumption that the provisions of law contained in the Act have been
infringed, in some way, by the detaining authorities in a particular case.
They want us to indicate degrees of transgression of the provisions, of the
Act, if any, which can justify interference by the High Courts in Habeas
Corpus proceedings. As the facts of no particular case are before us. we can
only answer the questions before us with the help, where necessary, of
appropriate hypothetical examples.

229. The learned Attorney General has, very frankly and honestly, submitted
that there was no need to bestow upon actions of the detaining authorities
the protections given to them only for the duration of the emergency
proclaimed under Article 352(1) of the Constitution, if the President did not
really intend to confer certain immunities from judicial scrutiny and
interference upon detentions by executive authorities, even if some of them
were contrary to the letter of the law, so that certain over-riding interests of
national security and independence may not be jeopardized. The Attorney
General's submission is that the risks of misuse of powers by the detaining
officers and authorities, which are certainly there, must be presumed to
have been over-ridden by the higher claims of national security which the
proclamation of emergency denotes. It was pointed out that a citizen, or
other person who may have been unfairly or illegally detained due to some
unfortunate misapprehension or error, does not loose ins remedy altogether.
Only ins right to move a Court for the enforcement of any of the rights
conferred by Part III .of the Constitution would be suspended for the time
being. He could always approach higher Governmental authorities. All of
them could not be so unreasonable as to deny redress in a case of genuine
injustice.

230. The propositions thus stated appear to be so reasonable and are so

well founded, as I shall endeavour to show later, in the course of this
judgment, in the Constitutional and legal history and the case law of other
countries, during periods of emergency, from whose constitutions what has
been described as the "ancient writ of Habeas Corpus" has been taken and
transplanted into our Constitution that it may seem somewhat surprising

25-06-2021 (Page 107 of 305) www.manupatra.com SOAS Library Library

that their correctness should be doubted or denied at all. The propositions
have, however, not only been vehemently assailed but the attacks upon
them were sought to be supported by attempts to engraft theories upon our
Constitution which, if accepted, will destroy the basic principle of the
supremacy of the written Constitution which I attempted, in Smt. Indira
Nehru Gandhi v. Shri Raj Narain MANU/SC/0304/1975 : [1976]2SCR347 to
explain at some length.

231. If the clear and unequivocal language of Article 359(1) of our

Constitution is the bed-rock on which the Attorney General's arguments to
sustain the preliminary objections to the maintainability of Habeas Corpus
petitions during the emergency rest, learned Counsel for the detenus have
put forward theories of a nebulous natural law and a common law which, on
close scrutiny, appear to me to resolve themselves into what, according to
the notions of learned Counsel for the detenus, the law ought to be.
Strenuous attempts have been made to dress up these notions in the
impressive garb of the "Rule of Law" which evokes the genuine and our and
respectful devotion of lawyers and public spirited citizens. But, the mere
veneration of a caption, without an understanding of what it really denoted
in the past and what it means or should mean today, is another name for
obfuscation of thought.

232. Even in England, the reputed home of the Rule of Law, the rather
loose, general, and in exact meaning given to the term by Dicey to describe
and glorify certain assumedly special characteristics of the English
Constitution, have given place to more realistic, critical, and scientific views
of the "Rule of Law" and what Dicey meant by it. Sir Ivor Jennings, in "The;
Law and the Constitution" (3rd Edn. p. 296) pointed out:

Dicey honestly tried (in The Law of the Constitution, not in ins
polemical works) to analyse, but, like most, he saw the Constitution
through ins own spectacles, and ins vision was not exact. The
growth of the new functions of the State has made much of ins
analysis irrelevant. Moreover, the argument "from history or, what is
the same thing, from the Constitution must be used with discretion.
To say that a new policy is 'unconstitutional' is merely to say that it
is contrary to tradition, and it must always be considered whether
the tradition is relevant to new circumstances. Even if the rule of
law as Dicey expounded it had been exact, it would not be a
sufficient argument to say of any proposal, as the Committee on
Ministers' Powers said on a minor point, that it was contrary to the
rule of law.

25-06-2021 (Page 108 of 305) www.manupatra.com SOAS Library Library

233. Those who glibly talk of the Rule of Law, as expounded by Dicey, forget
that Prof. Dicey had made a very gallant and effective (I would not like to
use here a colloquial expression, "desperate", to describe it) attempt to
repel the correctness of what he called "the dark saying" of de Tocqueville
that the largely conventional "English Constitution has no real existence
'ellen existe point)" (See : page 22 of the Dicey's "Introduction to the Study
of the Law of the Constitution"--10th Edn.). He was at pains to show that
the Constitutional Law of England did exist. It lived and functioned not only
in the hearts and minds of Englishmen, also reflected in Parliament, but
through the force of healthy conventions and highly disciplined habits of life
and thought of the British people. These conventions and habits had, behind
them, the sanction not only of a powerful and intelligent public opinion but
also of the control by the Houses of Parliament, wrested from the Crown in
the course of instoric constitutional struggles, over the finances of the
nation. Dicey distinguished this peculiarly British Constitutional Law from
"political ethics" which, according to him, was "mis-called Constitution Law".
It was not, he pointed out, like: International law, the "vanishing point" of
law.

234. Dicey succeeded, at least so far as his statement of the Rule of Law is
concerned, in doing nothing more than indicating, under this heading,
certain common guiding principles for Courts as well as Legislators to follow
when they needed these. Hence, he said that the Rule of law and the legal
Sovereignty of Parliament were allies in England. According to him, both
these principles so operated as to always support and strengthen each
other. This idealistic rosy optimism, reflecting the Whig tradition of minimum
interference with individual freedoms and representing the Constitutional
jurisprudence of the hey-day of a laissez faire British economic prosperity,
was destined to be displaced by the more "down to the earth" pragmatism
of the Twentieth Century Britain, attempting to meet economic difficulties
and distress through socialistic planning and to build a welfare State by
making laws which appeared to those brought up on the traditional
postulates of Dicey's Rule of Law to deny the validity of its basic
assumptions.

235. The first of these assumptions or meanings was that any deprivation of
personal liberty or property must not only be for a "distinct breach of law"
but ''established in the ordinary legal manner before the ordinary Courts of
the land". He contrasted this "with every system of government based on
the exercise by persons in authority of wide, arbitrary, or discretionary
powers of constraint". He concluded, from what he regarded as a basic
feature of the British Constitution, that all modes of dispensing justice,

25-06-2021 (Page 109 of 305) www.manupatra.com SOAS Library Library

through specialised administrative authorities and bodies, must necessarily
be autocratic and unfair. He compared the British system with the one under
which Voltaire, in 1717, was "sent to the Bastille for a poem which he had
not written, of which he did not know the author, and with the sentiments of
which he did not agree". The second assumption of Dicey's Rule of Law was
: "Every man, whatever be his rank or condition, is subject to the ordinary
law of the realm and amenable to the jurisdiction of the ordinary tribunals".
He overlooked the not infrequent injustice caused in England of his time,
due to want of adequate remedies against the servants of the Crown, by
applications of the maxim : "The King can do no wrong". He wrote "With us
every official, from the Prime Minister down to a constable or a collector of
taxes, is under the same responsibility for every act done without legal
justification as any other citizen". The third assumption on which Dicey's
Rule of Law rested was what he called "the predominance of the legal spirit"
which he described "as a special attribute of English Institutions". He
explained:

We may say that the Constitution is pervaded by the rule of law on

the ground that the general principles of the Constitution was for
example the right to personal liberty, or the right of public meeting)
are with us the result of judicial decisions determining the rights of
private persons in particular cases brought before the Courts;
whereas under many foreign constitutions the security (such as it
is) given to the rights of individuals results, or appears to result
from the general principles of the constitution.

Dicey observed:

There is in the English Constitution an absence of these declarations

or definitions of rights so dear to foreign constitutionalists. Such
principles, moreover, as you can discover in the English Constitution
are, like all maxims established by judicial legislation, mere
generalisations drawn either from the decisions or dicta of judges,
or from statutes which, being passed to meet special grievances,
bear a close resemblance to judicial decisions, and are in effect
judgments pronounced by the High Court of Parliament. To put
what is really the same thing in a somewhat different shape, the
relation of the rights of individuals to the principles of the
Constitution is not quite the same in countries like Belgium, where
the Constitution is the result of a legislative act, as' it is in England,
where the Constitution itself is based upon legal decisions.

25-06-2021 (Page 110 of 305) www.manupatra.com SOAS Library Library

236. Thus, Dicey depicted the British Parliament, while performing even its
legislative functions, as if it was a Court following the path shown by judges
filled with the spirit of law and with meticulous concern for all the canons of
justice. He concluded : "Our Constitution, in short, is a Judge-made
Constitution and it bears on its face all the features, good and bad, of judge
made law".

237. Dicey thought that the difference between the unwritten British
Constitution and a written Constitution, such as that of Belgium, was not
merely a formal one, but revealed entirely differing approaches to basic
freedoms. He observed:

The matter to be noted is, that where the right to individual

freedom is a result deduced from the principles of the constitution,
the idea readily occurs that the right is capable of being suspended
or taken away. Where, on the other hand, the right to individual
freedom is part of the Constitution because it is inherent in the
ordinary law of the land, the right is one which can hardly be
destroyed without a thorough revolution in the institutions and
manners of the nation.

238. After making the distinction mentioned above, Dicey deals with "the
so-called suspension of the Habeas Corpus Act". He said that it bears "a
certain similarity to what is called in foreign countries 'suspending the
constitutional guarantees'".. He euphemistically, explained:

But, after all, a statute suspending the Habeas Corpus Act falls very
far short of what its popular name seems to imply; and though a
serious measure enough, is not, in reality, more than a suspension
of one particular remedy for the. protection of personal freedom.
The Habeas Corpus Act may be suspended and yet Englishmen may
enjoy almost all the rights of citizens. The Constitution being based
on the rule of law, the suspension of the constitution, as far as such
a thing can be conceived possible, would mean with us nothing less
than a revolution.

239. If Dicey, bewitched by the beauties of an unwritten British Constitution

could have been shocked by any modern transgressions of the basic
principles of his "Rule of Law"--in the Introduction to later editions of his
book, Dicey modified his earlier views, to some extent, about the nature and
purposes of "Droit Administratif", accepted the inevitability of change, and
noticed the logical consequences of what he himself had described, in his

25-06-2021 (Page 111 of 305) www.manupatra.com SOAS Library Library

"Law and Opinion in England", as the Collectivist or Socialistic trend--he
would have been even more shocked by the proposition that the cherished
principles of his Rule of Law could override the statute law which the British
Parliament could make and unmake in the exercise, of what Dicey called the
"Sovereignty of Parliament". The truth is that Dicey did not, at first,
visualise the possibility of any conflict between the Rule of Law and the
principles of Parliamentary Sovereignty in England. And, correctly
understood and applied, there should not be serious conflict between them.
But, are principles always correctly understood and applied ?

240. Jennings critically commented upon Dicey's views (See : "The Law and
the Constitution" 3rd Edn. p. 294) as follows:

The rules which in foreign countries naturally form part of a

constitutional code "mostly do not exist in England, for the
recognised (or legal) supremacy of Parliament prevents any
fundamental distribution of powers and forbids the existence of
fundamental rights. The supremacy of Parliament is the
Constitution. It, is recognised as fundamental law just as a written
Constitution is recognised as fundamental law. Various Public
authorities--the Crown, the Houses of Parliament, the courts, the
administrative authorities--have powers and duties. Most of them
are determined by statute. Some are traditional, and so are
'determined' by the common law. The powers of administrative
authorities in respect of 'fundamental liberties' are mainly contained
in statutes. But even if they were not, I do not understand how it is
correct to say that "the rules are the consequence of the rights of
individuals and not their source. The powers of the Crown and of
other administrative authorities are limited by the rights of
individuals; or the rights of individuals are limited by the powers of
the administration. Both statements are correct; and both powers
and rights come from the law--from the rules.

241. Thus, Jennings pointed out that what was material was the existence of
rules, as a part of Constitutional law, and not their sources or forms. He
tried to show that the basic rule being the supremacy of Statutory law that
was "The Constitution" in Britain. No other rule could compete with it or
stand in its way or be a substitute for it. Dicey, on the other hand, believed
that the difference in sources and forms of rules made a great difference in
approach and outlook. But, Dicey also treated the judge-made Rule of Law
and the rights "guaranteed" by a written Constitution as alternatives or
different modes of protecting same species of rights. He never dreamt of

25-06-2021 (Page 112 of 305) www.manupatra.com SOAS Library Library

looking upon them both as simultaneously existing and available under a
written Constitution in addition to what such a Constitution contained.

242. Dicey, indicated the basic distinction between the Constitutional

position in England,, with an unwritten Constitution where the supremacy of
Parliament prevailed, and that in the United States of America, with a
written Constitution which was supreme. But, despite the differences in the
logical consequences of an unwritten constitution, in a country so largely
governed by its conventions and disciplined habits of life and thought as
Dicey's England, and those of the written Constitution of the U.S.A.., one
common feature, shared by both English and American systems, was the
large amount of judicial Constitutional law making which took place in both
countries.

243. In Britain, although the Parliament is the supreme law-giver, yet, as

Dicey pointed out, there was, out of respect for the judicial function and the
Rule of Law, an acceptance of judge made law as the constitutional law of
the land which the Parliament could alter, whenever it liked, but did not
think of altering presumably because it served very well, the needs of British
people who took pride in their judge-made law. Of course, if Parliament did
make a law on any subject-- and it has made some laws on Constitutional
matters also--the Courts could not think of questioning the validity of the
law so made.

244. In America, not only was the doctrine of judicial review of legislation,
established by Marshall, C. J., in Marbury v. Madison (1803)-(1 Cranch 137),
but the "due process" clauses, introduced by the 5th amendment (1791)
and by the 14th amendment (1868) of the American Constitution, became
the most prolific sources of judicial law-making. They gave to the American
Courts an amplitude of power to indulge in what is called "judicial
legislation" which our Constitution makers, after considerable debate,
deliberately eschewed by using the expression "procedure established by
law" instead of the "due process of law". Willis, adverting to the very
skeletal character of the American Constitution, said:

Our original Constitution was not an anchor but a rudder. The

Constitution of one period has not been the Constitution of another
period. As one period has succeeded another, the Constitution has
become larger and larger.

245. In A. K. Gopalan v. The State of Madras MANU/SC/0012/1950 :

1950CriLJ1383 , the earliest case in which a comprehensive discussion of

25-06-2021 (Page 113 of 305) www.manupatra.com SOAS Library Library

fundamental guaranteed freedoms in our Constitution took place, Kania, C.
J., after referring to observations of Munro, of James Russell Lowell, of
Willis, and of Cooley, on the American Constitution, noted about the nature
of our Constitution (at p. 109):

The Constitution itself provides in minute details the legislative

powers of the Parliament and the State Legislatures. The same
feature is noticeable in the case of the judiciary, finance, trade,
commerce and services. It is thus quite detailed and the whole of it
has to be read with the same sanctity, without giving undue weight
to Part III or Article 246, except to the extent one is legitimately
and clearly limited by the other.

246. The position in this country is clearly one in which the fundamental law
found in the Constitution is paramount. The Constitution provides the test
for the validity of all other laws. It seeks to determine the spheres of
executive and legislative and judicial powers with meticulous care and
precision. The judicial function, though wider in range when interpreting or
applying other Articles of the Constitution, particularly Articles 14 and 19,
the enforcement of which is also suspended during the current emergency,
is especially constricted by the elaborate provisions of Articles 21 and 22,
which deal with personal liberty and preventive detention. The wider the
sweep of the provisions of Article 21 and 22 the more drastic must be the
effect of suspending their enforcement. After all, suspension does not and
cannot mean retention under a disguise.

247. The only Rule of Law which can be recognised by Courts of our country
is what is deducible from our Constitution itself. The Constitution is, for us,
the embodiment of the highest "positive law" as well as the reflection of all
the rules of natural or ethical or common law lying behind it which can be
recognised by Courts. It seems to me to be legally quite impossible to
successfully appeal to some spirit of the Constitution or to any law anterior
to or supposed to lie behind the Constitution to frustrate the objects of the
express provisions of the Constitution. I am not aware of any Rule of Law or
reason which could enable us to do that. What we are asked to do seems
nothing short of building some imaginary parts of a Constitution, supposed
to lie behind our existing Constitution, which could take the place of those
parts of our Constitution whose enforcement is suspended and then to
enforce the substitutes.
And, we were asked by some learned Counsel, though not by all, to perform
this ambitious task of judicial Constitution making without even using the
crutches of implied imperatives of our Constitutional provisions as though

25-06-2021 (Page 114 of 305) www.manupatra.com SOAS Library Library

we had some plenary legislative Constituent powers. Fortunately, Judges in
this country have no such powers. And, those who are meant to so function
as to keep the other authorities and organs of State within the limits of their
powers cannot themselves usurp powers they do not possess. That is the
path of descent into the arena of political controversy which is so damaging
for the preservation of the impartiality and prestige of the judicial function.
We cannot, therefore, satisfy those who may feel the urge, as Omar
Khayyam did "to shatter" what they regard as "this sorry scheme of things
entire" and to "remould" it nearer their "heart's desire". I think we must
make it clear that the spirit of law or the Rule of Law, which we recognise,
cannot, however ominously around like some disembodied ghost serving as
a substitute for the living Constitution we actually have. It has to be found
always within and operating in harmony with and never outside or in conflict
with what our Constitution enjoins. All that we can do is to faithfully explain
what the Constitution and its spirit mean. We cannot alter or twist these.

248. The distinction made above between law as it exists and as it has to be
recognised and enforced by the State's judicial organs, and "the law", if we
may call it that at all, which could only constitute some rules of ethics but
could not been forced at all, whatever may be its moral worth, was thus
stated by John Codman Hurd in ins "Law of Freedom and Bondage in the
United States" (Negro Universities Press, New York (Vol. I, at p. 3):

Now, jurisprudence is taken to be the science of a rule not merely

existing, but one which is actually operative or enforced in or by the
will of society or the state. The Science of what rule ought to be
made operative by the will of the state is a different thing; it is a
science of rules regarded only as existing, whether operative in civil
society--that is enforced--or not.

A rule made operative by the authority of society, or of the state, is

a rule identified with the expressed will of society or of the State.
The will of the state, indicated in some form of expression, is the
law, the subject of jurisprudence, and no natural rule which may
exist, forms a part of the law unless identified with the will of the
state so indicated. What the state wills is the conterminous
measure of law, no preexisting rule is the measure of that will.

249. John Codman Hurd went on to point out that judicial authorities
constituted by the State can only carry out the mandates of the positive law
which, for purposes of enforcement, must be deemed to embody all the pre-
existing enforceable natural and ethical values.

25-06-2021 (Page 115 of 305) www.manupatra.com SOAS Library Library

250. Enforceability, as an attribute of a legal right, and the power of the
judicial organs of the State to enforce the right, are exclusively for the
State, as the legal instrument of Society, to confer or take away in the
legally authorised manner. It follows from these basic premises of our
Constitutional jurisprudence that Courts cannot, during a constitutionally
enjoined period of suspension of the enforceability of Fundamental Rights
through Courts, enforce what may even be a "fundamental right" sought to
be protected by Part III of the Constitution. The Attorney General has, very
fairly and rightly, repeatedly pointed out that no substantive right, whether
declared fundamental or not, except the procedural rights converted into
substantive ones by Article 32, could be suspended. Even the enforcement
in general, of all such rights is not suspended. Only the enforcement of
specified rights through Courts is suspended for the time being.

251. The enforceability of a right by a constitutionally appointed judicial

organ has necessarily to depend upon the fulfilment of two conditions :
firstly, its recognition by or under the Constitution as a right; and, secondly,
possession of the power of its enforcement by the judicial organs. Now, if a
right is established, on facts, as a right, it will certainly satisfy the first
condition. But, if the right is unenforceable, because the power-of its
enforcement by Courts is constitutionally suspended or inhibited, for the
duration of the emergency, its mere recognition or declaration by Courts,
either as a right or as a fundamental right, could not possibly help a
petitioner to secure ins personal liberty. Article 226 of the Constitution is not
meant for futile and unenforceable declarations of right. The whole purpose
of a writ of Habeas Corpus is to enforce a right to personal freedom after
the declaration of a detention as illegal when it is so found upon
investigation.

252. It may be that many moral and natural obligations exist outside the
Constitution and even outside any positive law--this is not denied by the
learned Attorney General at all--but, their existence is not really relevant for
purposes of petitions for writs of Habeas Corpus which lie only to enforce
legally enforceable rights. Neither the existence nor the possibilities of
denials of any rights by the detaining officers of the State, due to fragilities
of human nature and errors of judgment, are denied by the Attorney
General. All that is denied is the correctness of the assertion that they are
enforceable, during the period of emergency, through Courts, if they fall
within the purview of rights whose enforcement is suspended.

253. The result of the few very general observations made above by me,
before examining, in greater depth, any of the very large number of

25-06-2021 (Page 116 of 305) www.manupatra.com SOAS Library Library

connected questions and side issues raised--I doubt whether it is necessary
or of much use, in view of my opinion on the preliminary issue of
enforceability, to consider all of them even if it were possible for me to do
so--may be summarised as follows:

Dicey's Rule of Law, with special meanings given to it, was meant to
prove the existence and peculiarities of the unmodified English
Constitutional Law. According to Dicey himself, these features either
did not exist elsewhere or were the very objectives of .provisions of
written Constitutions of other countries. On Dicey's very exposition,
no ordinary Judge-made law or common law could survive in
opposition to statutory law in England, or, in conflict with a written
Constitution where there was one. Enforceability of rights, whether
they are constitutional or common law or statutory, in
constitutionally prescribed ways by constitutionally appointed
judicial organs, is governed solely by the terms of the written
instrument in a Constitution such as ours. The scope for judicial law
making on the subject of enforcement of the right to personal
freedom was deliberately restricted by our Constitution makers. In
any case, it is difficult to see any such scope when "enforcement"
itself is suspended. All we can do is to determine the effect of this
suspension. We have now to consider in greater detail: What is it
the enforcement of which is suspended and what, if anything,,
remains to be enforced ?

254. In this country, the procedure for the deprivation as well as

enforcement of a right to personal freedom is governed partly by the
Constitution and partly by ordinarily statutes. Both fall within the purview of
"procedure". Article 21 of the Constitution guarantees, though the guarantee
is negatively framed, that "no person shall be deprived of ins life or personal
liberty except according to procedure established by law". If an enforcement
of this negatively framed right is suspended, a deprivation contrary to the
prescribed procedure is not legalised. The suspension of enforcement does
not either authorise or direct any authority to violate the procedure. It has
to be clearly understood that what is suspended is really the procedure for
the enforcement of a right through Courts which could be said to flow from
the infringement of a statutory procedure. If the enforcement of a right to
be free, resulting derivatively from both the Constitutional and statutory
provisions, based on an infraction of the procedure, which is statutory in
cases of preventive detention, is suspended, it seems to me to be
impossible to lay down that it becomes enforceable when that part of the
procedure which is mandatory is violated but remains unenforceable so long

25-06-2021 (Page 117 of 305) www.manupatra.com SOAS Library Library

as the part of the procedure infringed is directory. Such a view would, in my
opinion, introduced a distinction which is neither warranted by the language
of Article 359 of the Constitution nor by that of the Presidential Orders of
1975. If the claim to assert the right is one based on violation of procedure,
the degree of violation may affect the question whether the right to be free
is established at all, but, it should not, logically speaking, affect the result
where the enforcement of the right, even in a case in which it has become
apparent, is suspended.

255. The question, however, which has been most vehemently argued is :
Does Article 21 exhaust every kind of protection given to rights to personal
freedom ? Another way in which this question was put is : Is Article 21 of
the Constitution "the sole repository" of the substantive as well as
procedural rights embraced by the expression "personal liberty" ? One of the
contentions before us was that Article 21 does not go beyond the procedural
protection to persons who may be deprived of personal liberty.

256. Mr. Jethmalani, learned Counsel appearing for one of the detenues,
contended that personal freedom was a by-product of the removal of
constraints or hindrances to the positive freedom of action of the individual.
The contention seemed to be that procedure for deprivation of personal
liberty being one of the ways of imposing positive constraints, the removal
of a negative procedural protection could not dispense with the necessity to
establish a right of the detaining authority under some positive or statutory
law to deprive a person detained of ins liberty whether the authority
concerned followed the right procedure or not in doing so. The argument is
that proof of a just and reasonable cause, falling within the objects of the
Act so as to create a liability to be detained, must precede the adoption of
any procedure to detain a person under the Act. A "satisfaction" that one of
the grounds of detention, prescribed by Section 3 of the Act, is there, was
thus said to be a "condition precedent" to the exercise of jurisdiction to
detain. This argument obviously proceeded on a restricted meaning given to
the "procedure established by law". It is very difficult to see why the
satisfaction, required by Section 3 of the Act, is not really part of "procedure
established by law".

257. There is, however, an even more formidable difficulty in the way of this
argument. If, as it is undeniable, the procedure under Article 226 is the
direct procedural protection, which is suspended by the terms of the
Presidential Order, read with Article 359, Article 226 will not be available to
the detenue at all, for the time being, for showing absence of the required
"satisfaction", as a condition precedent to a valid detention order under

25-06-2021 (Page 118 of 305) www.manupatra.com SOAS Library Library

Section 3 of the Act. If the "right to move any Court" can be suspended--
Article 359 is very clear on the point--there remains no right, for the time
being, to an inquiry into conditions which may enable a party to secure
release in assertion of rights guaranteed either by Article 21 or by other
Articles whose "enforcement" is suspended. Indeed, the clear object of such
a suspension seems to me to be that Courts should not undertake inquiries
into the violations of the alleged right.

258. If the fundamental rights in Part III of the Constitution are not
suspended, as they obviously are not, but only their enforcement can be
and is suspended what is really affected is the power conferred on Courts by
Articles 32 and 226 of the Constitution. The power of the Courts is the direct
and effective protection of the rights sought to be secured indirectly by
Article 21, and perhaps less indirectly, by some other Articles and laws.
Indeed, it is the basic protection because other protections operate through
it and depend on it. If this is curtailed temporarily, the other affected
protections become automatically inoperative or ineffective so far as Courts
are concerned.

259. It is no answer to say that the Constitutional power of High Courts

cannot be affected by a Presidential order under Article 359 which is as
much a part of the Constitution as Article 226. Both Articles were there from
the commencement of the Constitution. 1 do not see how it can be
reasonably urged that our Constitution makers did not visualise and intend
that the Presidential order under Article 359 must, for the duration of the
emergency, necessarily limit the powers of High Courts under Article 226
albeit indirectly by suspending rights to enforcement of fundamental rights.

260. It is also not possible for a detenue to fall back upon the last part of
Article 226 of the Constitution which enables the use of powers given by this
Article "for any other purpose". Sq long as that purpose is enforcement of a
right which is covered by Articles 14 or 19 or 21 or 22 either separately or
conjointly, as the enforcement of each of these is now suspended, the
inhibition will be there. Moreover, we have no case before us in which a
detenu asks for an order for any purpose other than the one which can only
be served by the issue of a writ of Habeas Corpus. Each detenu asks for that
relief and for no other kind of writ or order. therefore, there is no need to
consider "any other purpose".

261. It is true that some of the learned Counsel for the detenus have
strongly relied upon "any other purpose", occurring at the end of Article
226, for enabling the High Court to undertake an investigation suo motu into

25-06-2021 (Page 119 of 305) www.manupatra.com SOAS Library Library

the question whether the executive is performing its duties. Other Counsel
have submitted that such an enquiry suo motu can be undertaken by this
Court or by a High Court in exercise of powers to issue writs of Habeas
Corpus quite apart from the enforcement of the right of a detenu to any writ
or order. As I have indicated earlier, I am not prepared to answer purely
hypothetical questions, except within certain limits, that is to say, only so far
as it is necessary for the purposes of illustrating my point of view. I do not
think that the powers of Courts remain unaffected by the suspension of
rights or locus standi of detenus. A Court cannot, in exercise of any
supposed • inherent or implied or unspecified power, purport to enforce or in
substance enforce a right the enforcement of which is suspended. To permit
such circumvention of the suspension is to authorise doing indirectly what
law does not allow to be done directly. Assuming, for purposes of argument,
that there is some unspecified residue of judicial power in Courts of Record
in this country, without deciding what it could be, as that question does not
really arise in cases before us, there must be undeniable facts and
circumstances of some very grave, extraordinary, and exceptional character
to justify the use of such powers, if they exist at all, either by this Court or
by the High Courts. So long as the powers of Government are exercised by
the chosen representatives of the people, their exercise is presumed to be of
the people and for the people. It has to be borne in mind that the validity of
the declaration of emergency under Article 352 has neither been nor can it
be constitutionally challenged in view of Article 352(5) of the Constitution.
And, the validity of Presidential Orders of 1975 under Article 359 has not
been questioned.

262. So far, I have only indicated the nature of the problems before us and
my general approach to them. Before specifically answering questions,
stated at the outset, I will deal, as briefly as possible, under the following
Six main heads, with such of the very large number of points raised and
authorities cited before us as appear to me to be really necessary for
answering the questions calling for our decision:

(A) "Rights conferred by Part III" of our Constitution from the point
of view of Personal Freedom.

(B) Power to issue writs of Habeaus Corpus and other powers of

High Courts under article 226 of the constitution.

(C) The objects of the Maintenance of Internal Security Act ('the

Act') and the amendments of it.

25-06-2021 (Page 120 of 305) www.manupatra.com SOAS Library Library

 (D) The purpose and meaning of emergency provisions, particularly
Article 359 of our Constitution.

(E) The effect of the Presidential orders, particularly the order of

27th June, 1975, on the rights of Detenus.

(F) The Rule of Law, as found in our Constitution, and how it

operates during the emergency.

(A) "Rights conferred by Part III" from the point of view of personal
freedom.

263. It is somewhat difficult to reconcile the language of ^a purported

conferment of rights upon themselves by citizens of India with their political
sovereignty. The language of the preamble to the Constitution recites that it
is they who were establishing the legally Sovereign Democratic Republic
with the objects given there. Of course, some rights are "conferred" even on
non-citizens, but that does not remove the semantic difficulty which gave
rise to some argument before us. It seems to me that if, as this Court has
already explained earlier (e.g. by me in Shrimati Indira Nehru Gandhi's case
(supra), the Constitution, given unto themselves by the people, is legally
supreme, it will not be difficult to assign its proper meaning to the term
"conferred". I do not find the theory unacceptable that there was a notional
surrender by the people of India of control over their several or individual
rights to a sovereign Republic by means of a legally supreme Constitution to
which we owe allegiance. It only means that we recognise that the
Constitution is supreme and can confer rights and powers. We have to look
to it alone and not outside it for finding out the manner in which and the
limits subject to which individual citizens can exercise their separate
freedoms. There has to be necessarily, as a result of such a process of
Constitution making, a notional surrender of individual freedom so as to
convert the possibility of "licence" to all, which ends in the exploitation and
oppression of the many weak by the few strong, into the actuality of a
freedom for all regulated by law or under the law applicable to all. This
seems to me to be a satisfactory explanation of the language of conferment
used with reference to rights.

264. Apart from the explanation given above, of the language of

conferment, the meaning of placing some rights in Part III, whatever be the
language in which this was done, is surely to select certain rights as most
essential for ensuring the fulness of lives of citizens.

25-06-2021 (Page 121 of 305) www.manupatra.com SOAS Library Library

The whole object of guaranteed fundamental rights is to make those basic
aspects of human freedom, embothed in fundamental rights, more secure
than others not so selected. In thus recognising and declaring certain basic
aspects; of rights as fundamental by the Constitution of the country, the
purpose was to protect them against undue encroachments upon them, by
the legislative, or executive, and, sometimes even judicial (e.g. Article 20)
organs of the State. The encroachments must remain within permissible
limits and must take place only in prescribed modes. The intention could
never be to preserve something concurrently in the field of Natural Law or
Common Law. It was to exclude all other control or to make the Constitution
the sole repository of ultimate control over those aspects of human freedom
which were guaranteed there.

265. I have already referred to Dicey's attempt to show that one of the
meanings of the Rule of Law in England was that the law made by the
ordinary Courts served purposes sought to be achieved in other countries by
means of written Constitutions. This meant that one of the two systems
governs the whole field of fundamental rights but not both. This very idea is
thus put by Keir & Lawson in "Cases in Constitutional Law (5th Edn. p. 11)
:"

The judges seem to have, in their minds an ideal constitution,

comprising those fundamental rules of common law which seem
essential to the liberties of the subject and the proper government
of the country. These rules cannot be repealed but by direct and
unequivocal enactment. In the absence of express words or
necessary intendment, statutes will be applied subject to them.
They do not override the statute, but are treated, as it were, as
implied terms of the statute. Here may be found many of those
fundamental rights of man which are directly and absolutely
safeguarded in the American Constitution or the Declaration des
droits de I homme.

266. In the passage quoted above, Rules of Natural Justice, which are
impliedly read into statutes from the nature of functions imposed upon
statutory authorities or bodies, are placed on the same footing as
"fundamental fights of men which are directly and absolutely safeguarded"
by written Constitutions. There is, however, a distinction between these two
types of basic rights. The implied rules of natural justice do not, as has been
repeatedly pointed put by us, over-ride the express terms of a statute. They
are only implied because- the functions which the statute imposes are
presumed to be meant to the exercised in accordance with these rules.

25-06-2021 (Page 122 of 305) www.manupatra.com SOAS Library Library

Hence, they are treated as though they were parts of enacted law. This
Court has repeatedly applied this principle (see : e.g. State of Orissa v. Dr.
(Miss) Binapani Dei and Ors. MANU/SC/0332/1967 : (1967)IILLJ266SC

267. The principles of natural justice which are so implied must always
hang, if one may so put it, on pegs of statutory provisions or necessarily
follows from them. They can also be said sometimes to be implied as
necessary parts of the protection of equality and equal protection of laws
conferred by Article 14 of the Constitution where one of the pillars of Dicey's
principles of the Rule of Law is found embodied. Sometimes, they may be
implied and read into legislation dealing with rights protected by Article 19
of the Constitution. They could, at times, be so implied because restrictions
on rights conferred by Article 19 of the Constitution have to be reasonable.
Statutory provisions creating certain types of functions may become
unreasonable, and, therefore, void unless rules of natural justice were
impliedly annexed to them. And, the well known method of construction is :
"ut res magis valeat guam pereat"--to prefer the construction which upholds
rather than the one which invalidates. Thus, rules of natural justice, even
when they are read into statutory provisions, have no independent
existence. They are annexed to statutory duties or fundamental rights so
long as they are not expressly excluded. Their express exclusion by statute
may, when the enforcement of fundamental rights is not suspended, affect
the validity of a statute: But, that is so because of the requirements of
Articles 14 and 19 of the Constitution and not because they are outside the
Constitution altogether.

268. It is also very difficult for me to understand what is meant by such

"Common Law" rights as could co-exist and compete with constitutional
provisions or take their place when the constitutional provisions become
unenforceable or temporarily inoperative. The whole concept of such alleged
Common Law is based on an utter misconception of what "Common Law"
means. The origin of Common Law in England is to be found in the work
done by the King's Judges, who, through their judicial pronouncements,
gave to the people of that country a law common to the whole country in
the place of the peculiar or conflicting local customs. Let me quote here
from a recent book by Prof. George W. Keeton on "English Law--The Judicial
Contribution" (at p. 68-69), about what Judges appointed by Henry the II of
Anjou did:

It is in his reign that something recognisable as a Common Law

begins to emerge. It is an amalgam of Anglo-Saxon and Danish
customs and Norman laws governing military tenures, both of which

25-06-2021 (Page 123 of 305) www.manupatra.com SOAS Library Library

 are about to be transformed by several mighty agencies--the ever-
expanding body of original writs, of which Glanville wrote; the
assizes which Henry introduced; and finally, by the activities of his
judges, whether at Westminster or on Circuit. It is significant that
although for some centuries to come, English law was to remain
remarkably rich in local customs, we no longer hear, after Henry's
reign, of the laws of Mercia, Wessex and Northum-bria, but of a
Common Law of England--that is to say, the law of the king's
courts, about which treatises of the calibre of Bracton and Fleta
would be written almost exactly a century later, and as the
concluding words of Pollock and Maitland's great work remind us,
they and their judicial colleagues were building, not for England
alone but for king-less common-wealths on the other shore of the
Atlantic Ocean'--and now, one can perhaps add, for many other
commonwealths, too. This we owe ultimately, not to a Norman
Conqueror, nor even to a distinguished line of Saxon , kings, but to
a bow-legged and unprepossessing prince of Anjou, of restless
energy and great constancy of purpose who built, perhaps, a good
deal better than even he knew.

269. Such were the origins of the Common Law in England. It is true that
Common Law did try to dig its tentacles into Constitutional Law as well.
Chief Justice Coke not only denied to King James the 1st the power to
administer justice directly and personally, but he went so far as to claim for
the King's Courts the power to proclaim an Act of Parliament invalid, in Dr.
Bonham's case, if it sought to violate a principle of natural law. Such claims,
however, were soon abandoned by Common Law Courts.

270 It is interesting to recall that, after ins dismissal, by King James the 1st,
in 1616, Sir Edward Coke entered politics and became a Member of the
House of Commons in Liskeard. He led a group which resisted Royal claims.
He was the principal advocate of the Petition of Rights which Parliament
compelled a reluctant King of England to accept in 1628. Courts of justice,
unable to withstand Royal onslaughts on their authority, joined hands with
Parliament and laid down some of the rules which, according to Dicey, gave
the Rule of Law to England. Thus, the judge-made fundamental rights,
which Parliament would not disturb, out of innate respect for them, existed,
legally speaking, because Parliament, representing the people, wanted
them. They could not compete with or obstruct the legal authority of
Parliament. Coke's doctrine, however, found expression in a Constitution
which enabled judges to test the validity of even legislation with reference
to fundamental rights. This is also one of the primary functions of Chapter

25-06-2021 (Page 124 of 305) www.manupatra.com SOAS Library Library

III of our own Constitution. Another function of provisions of this chapter is
to test the validity of the State's executive action.

271. So far as Article 21 of the Constitution is concerned, it is abundantly

clear that it protects the lives and liberties of citizens primarily from legally
unwarranted executive action. It secures rights to 'procedure established by
law'. If that procedure is to be established by statute law, as it is meant to
be, this particular protection could not, on the face of it, be intended to
operate as a restriction upon legislative power to lay down procedure
although other Articles affecting legislation on personal freedom might.
Article 21 was only meant, on the face of it, to keep the exercise of
executive power, in ordering deprivations of life or liberty, within the bounds
of power prescribed by procedure established by legislation.

The meaning of the expression "procedure established by law" came in for

discussion at considerable length, by this Court, in A. K. Gopalan's case
(supra). The majority of the learned Judges clearly held there that it
furnishes the guarantee of "Lex", which is equated with statute law only,
and not of "Jus" or a judicial concept of what procedural law ought really to
be. The whole idea, in using this expression, taken deliberately from the
Japanese Constitution on the advice, amongst others, of Mr. Justice Felix
Frankfurter of the American Supreme Court, was to exclude judicial
interference with executive action in dealing with lives and liberties of
citizens and others living in our country on any ground other than that it is
contrary to procedure actually prescribed by law, which, according to the
majority view in Gopalan's case, meant only statute law. The majority view
was based on the reason, amongst others, that, according to well
established canons of statutory construction, the express terms of "Lex"
(assuming, of course, that the "Lex" is otherwise valid), prescribing
procedure, will exclude "Jus" or judicial notions of "due process" or what the
procedure ought to be.

272. Appeals to concepts of "Jus" or a just procedure were made in

Gopalan's case (supra), as implied by Article 21, in an attempted application
of "Jus" for testing the validity of statutory provisions. Although, no such
question of validity of the procedure established by the Act in ordering
actual deprivations of personal liberty has arisen before us, yet, the
argument before us is that we should allow use of notions of "Jus" and the
doctrine of ultra vires by the various High Courts in judging the correctness
of applications of the established procedure by executive authorities to each
case at a time when the Presidential Order of 27th June 1975 precludes the
use of Article 21 by Courts for enforcing a right to personal liberty.

25-06-2021 (Page 125 of 305) www.manupatra.com SOAS Library Library

therefore, the question which arises here is whether "Jus" held by this
Court, in Gopalan's case, to have been deliberately excluded from the
purview of procedure established by law", can be introduced by Courts,
through a back door, as though it was an independent right guaranteed by
Chapter III or by any other Part of the Constitution. I am quite unable to
accede to the suggestion that this could be done.

273. We have been referred to the following passage in R. C. Cooper v,

Union of India MANU/SC/0011/1970 : [1970]3SCR530 , to substantiate the
submission that the decision of this Court in Gopalan's case (supra), on the
question mentioned above, no longer holds the field:

We have found it necessary to examine the rationale of the two

lines of authority and determine whether there is anything in the
Constitution which justifies this apparently inconsistent
development of the law. In our judgment, the assumption in A.K.
Gopalan's case that certain Articles in the Constitution exclusively
deal with specific matters and ' in determining whether there is
infringement of the individual's guaranteed rights, the object and
the form of the State action alone need be considered, and effect of
the laws on fundamental rights of the individuals in general will be
ignored cannot be accepted as correct. We hold that the validity 'of
law' which authorises deprivation of property and 'a law' which
authorises compulsory acquisition of property for a public purpose
must be adjudged by the application of the same tests. A citizen
may claim in an appropriate .case that the law authorising
compulsory acquisition of property imposes fetters upon ins right to
hold property which are not reasonable restrictions in the interests
of the general public.

274. It seems to me that Gopalan's case (supra) was merely cited, in

Cooper's case (supra), for illustrating a line of reasoning which was held to
be incorrect in determining the validity of "law" for the acquisition of
property solely with reference to the provisions of Article 31. The question
under consideration in that case was whether Articles 19(1)(f) and 31(2) are
mutually exclusive. Even if, on the strength of what was held in Cooper's
case (supra), we hold that the effects of deprivation upon rights outside
Article 21 have also to be considered in deciding upon the validity of "Lex",
and that the line of reasoning in Gopalan's case (supra), that the validity of
a law relating to preventive detention must be judged solely with reference
to the provisions of Article 21 of the Constitution, is incorrect, in view of the
opinion of the majority of learned Judges of this Court in Cooper's case

25-06-2021 (Page 126 of 305) www.manupatra.com SOAS Library Library

(supra), it seem to me that this is hardly relevant in considering whether
any claims based on natural law or common law can be enforced. There is
no challenge before us based on Article 19, to any provision of the Act.
Moreover, now that the enforcement of Article 19 is also suspended, the
question whether a law dealing with preventive detention may directly or
indirectly infringe other rights contained in Article 19 of the Constitution is
not relevant at all here for this additional reason.

275. Mr. Shanti Bhushan, appearing for some of the detenu, seems to have
seriously misunderstood the meaning of the majority as well as minority
views of Judges of this Court in His Holiness Kesava-nanda Bharati
Sripadagalavaru v. State of Kerala [1973] Supp. S. C. R. 1 918 when he
submitted that, as the majority view there was not that natural rights do not
exist, these rights could be enforced in place of the suspended guaranteed
fundamental rights. One learned Judge after another in that case
emphatically rejected the submission that any theory of natural rights could
impliedly limit powers of Constitutional amendment contained in Article 368
of the Constitution. In doing so, none of us held that any natural rights
could impliedly become legally enforceable rights.

276. Dwivedi, J., in Kesavananda Bharti's case (supra) said about what
could be characterised as a far more "unruly horse" than public policy (at p.
918):

Natural Law has been a sort of religion with many political and
constitutional thinkers. But it has never believed in a single
Godhead. It has a perpetually growing pantheon. Look at the
pantheon, and you will observe there : 'State of Nature'. 'Nature of
Man'. 'Reason', 'Cod', 'Equality', 'Liberty', 'Property', 'Laissez Faire',
'Sovereignty', 'Democracy', 'Civilised Decency', 'Fundamental
Conceptions of Justice' and even 'War'.

The religion of Natural Law has its illustrious Priestly Heads such as
Chrysippus, Cicero, Seneca, St. Thomas Acquinas, Grotius, Hobbes,
Locke, Paine, Hamilton, Jefferson and Trietschke. The pantheon is
not a heaven of peace. Its gods are locked in constant internecine
conflict.

Natural Law has been a highly subjective and fighting faith. Its
bewildering variety of mutually warring gods has provoked Kelson
to remark : "Outstanding representatives of the natural law doctrine
have proclaimed in the name of Justice or Natural Law principles

25-06-2021 (Page 127 of 305) www.manupatra.com SOAS Library Library

 which not only contradict one another, but are in direct opposition
to many positive legal orders. There is no positive law that is not in
conflict with one or the other of these principles; and it is not
possible to ascertain which of them has a better claim to be
recognised than any other. All these principles represent the highly
subjective value judgments of their various authors about what they
consider to be just or natural.

277. If the concepts of natural law are too conflicting to make them a secure
foundation for any alleged "right", sought to be derived from it, until it is
accepted and recognised by a positive law, notions of what Common Law is
and what it means, if anything, in this country, are not less hazy and
unsettled.

278. Mr. Setalvad, in ins Hamlyn Memorial Lectures on "Common Law in

India", treated the whole body of general or common statute law and
Constitutional Law of this country as though they represented a codification
of the Common Law of England. If this view is correct, Common Law could
not be found outside the written Constitution and statute law although
English Common Law could perhaps be used to explain and interpret our
statutory provisions where it was possible to do so due to some uncertainty.

279. Sometimes, Judges have spoken of the principles of "Justice, equity,

and good conscience" (See : Satish Chandra Chakramurthi v. Ram Dayal De
I. L. R. 48 Cal. 388 Waghela Raj Sanji v. Sheik Mashuddin and Ors. 14
Indian Appeals p. 89 @ 96 Baboo S/o Thakur Dhodi v. Mst. Subanshi W/o
Mangal MANU/NA/0024/1942, as sources of "Common Law" in this; country.
One with some knowledge of development of law in England will distinguish
the two broad streams of , law there : one supposed to be derived from the
customs of the people, but, actually based on judicial concepts of what
custom is or should properly be; and. another flowing from the Court of the
Chancellor, the "Keeper of the King's Conscience", who used to be
approached when plain demands of justice failed to be met or caught in the
meshes of Common Law, or, were actually defeated by some statute law
which was being misused. The two streams, one of Common Law and
another of Equity, were "mixed" or "fused" by statute as a result of the
Judicature Acts in England at the end of the last century in the sense that
they became parts of one body of law administered by the same Courts,
although they are still classified separately due to their separate origins. In
Stroud's Judicial Dictionary, we find (See : Vol. I, 4th Edn. p. 517) : "The
common law of England is that body of law which has been judicially
evolved from the general custom of the realm".

25-06-2021 (Page 128 of 305) www.manupatra.com SOAS Library Library

280. Here, all that I wish to indicate is that neither rights supposed to be
recognised by some" natural law nor those assumed to exist in some part of
Common Law could serve as substitutes for those conferred by Part III of
the Constitution. They could not be, on any principle of law or justice or
reason, virtually added to part III as complete replacements for rights
whose enforcement is suspended, and 'then be enforced, through
constitutionally provided machinery, as the unseen appendages of the
Constitution or as a separate group of rights outside the Constitution meant
for the emergency which suspends but does not resuscitate in a new form
certain rights.

281. A submission of Dr. Ghatate, appearing for Mr. Advani, was that we
should keep in mind the Universal Declaration of Human Rights in
interpreting the Constitution. He relied on Article 51 of the Constitution, the
relevance of which for the cases before us is not at all evident to me. He
also relied on the principle recognised by British Courts that International
Law is part of the law of the land. Similarly, it was urged, it is part of our
law too by reason of Article 372 of the Constitution. He seemed to imply
that we should read the universal declaration of human rights into our
Constitution as India was one of the signatories to it. These submissions
appear to me to amount to nothing more than appeals to weave certain
ethical rules and principles into the fabric of our Constitution which is the
paramount law of this country and provides the final test of validity and
enforceability of rules and rights through Courts. To advance such
arguments is to forget that our Constitution itself embodies those rules and
rights. It also governs the conditions of their operation and suspension.
Nothing which conflicts with the provisions of the Constitution could be
enforced here under any disguise.

282. Emergency provisions in our Constitution are, after all, a recognition

and extension of the individual's natural law right of self-defence, which has
its expression in positive laws, to the State, the legal organisation through
which society or the people in its collective aspect, functions for the
protection of the common interests of all. Such provisions or their
equivalents exist in the Constitutions of even the most advanced democratic
countries of the world. No lawyer can seriously question the correctness, in
Public International Law, of the proposition that the operation and effects of
such provisions are matters which are entirely the domestic concern of
legally sovereign States and can brook no outside interference.

283. Subba Rao, C.J., speaking for five learned Judges of this Court, in 7. C.
Golaknath and Ors. v. State of Punjab and Anr. MANU/SC/0029/1967 :

25-06-2021 (Page 129 of 305) www.manupatra.com SOAS Library Library

[1967]2SCR762:

Now, what are the fundamental rights ? They are embothed in Part
III of the Constitution and they may be classified thus : (i) right to
equality, (ii) right to freedom, (iii) right against exploitation, (iv)
right to freedom of religion, (v) cultural and educational rights, (vi)
right to property, and (via) right to constitutional remethes. They
are the rights of the people preserved by our Constitution.
"Fundamental rights" are the modern name for what have been
traditionally known as "natural rights". As one author puts : "they
are moral rights which every human being everywhere at all times
ought to have simply because of the fact that in contradistinction
with other beings, he is rational and moral". They are the primordial
rights necessary for the development of human personality. They
are the rights which enable a man to chalk out ins own life in the
manner he likes best. Our Constitution, in addition to the well-
known fundamental rights, also included the rights of the
minorities, untouchables and other backward communities, in such
rights.

284. I do not know of any statement by this Court of the relation between
natural rights and fundamental constitutional rights which conflicts with
what is stated above.

285. Hidayatullah, J., in Golaknath's case (supra) observed (at p, 877):

What I have said does not mean that Fundamental Rights are not
subject to change or modification. In the most inalienable of such
rights a distinction must be made between possession of a right and
its exercise. The first is fixed and the latter controlled by justice and
necessity. Take for example Article 21:

No person shall be deprived of ins life or personal liberty

except according to procedure established by law'. Of all
the rights, the right to one's life is the most valuable. This
Article of the Constitution, therefore, makes the right
fundamental. But the inalienable right is curtailed by a
murderer's conduct as viewed under law The deprivation,
when it takes place, is not of the right which was
immutable but of the continued exercise of the right.

286. The contents of Article 21 were considered at some length and given a
wide connotation by this Court in Gopalan's case (supra). Patanjali Sastri, J.,

25-06-2021 (Page 130 of 305) www.manupatra.com SOAS Library Library

held at pages 195-196:

It was further submitted that Article 19 declared the substantive

rights of personal liberty while Article 21 provided the procedural
safeguard against their deprivation. This view of the correlation
between the two Articles has found favour with some of the Judges
in the High Courts which have had occasion to consider the
constitutional validity of the impugned Act. It is, however, to be
observed that Article 19 confers the rights therein specified only on
the citizens of India, while Article 21 extends the protection of life
and personal liberty to all persons citizens and non-citizens alike.
Thus, the two Articles do not operate in a conterminous field, and
this is one reason for rejecting the correlation suggested. Again, if
Article 21 is to be understood as providing only procedural
safeguards, where is the substantive right to personal liberty, of
non-citizens to be found in the Constitution ? Are they denied such
right altogether ? If they are to have no right of personal liberty,
why is the procedural safeguard in Article 21 extended to them ?
And where is that most fundamental right of all, the right to life,
provided for in the Constitution? The truth is that Article 21, like its
American prototype in the Fifth and Fourteenth Amendments of the
Constitution of the United States, presents an example of the fusion
of procedural and substantive rights in the same provision. The
right to live, though the most fundamental of all, is also one of the
most difficult to define and its protection generally takes the form of
a declaration that no person shall be deprived of it save by due
process of law or by authority of law. 'Process' or 'procedure' in this
context connotes both the act and the manner of proceeding to take
away a man's life "or personal liberty. And the first and essential
step in a procedure established by law for such deprivation must be
a law made by a competent legislature authorising such
deprivation.

Mahajan, J., also observed at pages 229-230:

Article 21, in my opinion, lays down substantive law as giving

protection to fife and liberty inasmuch as it says that they cannot
be deprived except according to the procedure established by law;
in other words, it means that before a person can be deprived of ins
life or liberty as a condition precedent there should exist some
substantive law conferring authority for doing so and the law should
further provide for a mode of procedure for such deprivation. This

25-06-2021 (Page 131 of 305) www.manupatra.com SOAS Library Library

 Article gives complete immunity against the exercise of despotic
power by the executive. It further gives immunity against invalid
laws which contravene the Constitution. It gives also further
guarantee that in its true concept there should be some form of
proceeding before a person can be condemned either in respect of
ins life or ins liberty. It negatives the idea of fantastic arbitrary and
oppressive forms of proceedings. The principles therefore
underlying Article 21 have been kept in view in drafting Article 22.

Das, J., said at page 295:

If personal liberty as such is guaranteed by any of the sub-clauses

of Article 19(1) then why has it also been protected by Article 21 ?
The answer suggested by learned Counsel for the petitioner is that
personal liberty as a substantive right is protected by Article 19(1)
and Article 21 gives only an additional protection by prescribing the
procedure according to which that right may be taken away. I am
unable to accept this contention. If this argument were correct,
then it would follow that our Constitution does not guarantee to any
person, citizen or non-citizen, the; freedom of ins life as a
substantive right at all, for the substantive right to life does not fall
within any of the sub-clauses of Clause (1) of Article 19.

He also said at p. 306-307:

Article 21, as the marginal note states, guarantees to every person

'protection of life and personal liberty'. As I read it, it defines the
substantive fundamental right to which protection is given and does
not purport to prescribe any particular procedure at all. That a
person shall not be deprived of ins life or personal liberty except
according to procedure established by law is the substantive
fundamental right to which protection is given by the Constitution.
The avowed object of the article, as I apprehend it, is to define the
ambit of the right to life and personal liberty which is to be
protected as a fundamental right. The right to life and personal
liberty protected by Article 21 is not an absolute right but is a
qualified right--a right circumscribed by the possibility or risk of
being lost according to procedure established by law.

287. It will thus be seen that not only all steps leading up to the deprivation
of personal liberty but also the substantive right to personal freedom has
been held, by implication, to be covered by Article 21 of the Constitution.

25-06-2021 (Page 132 of 305) www.manupatra.com SOAS Library Library

288. In Kharak Singh v. the State of U.P. and Ors. MANU/SC/0085/1962 :
1963CriLJ329 , the wide import of personal liberty, guaranteed by Article 21,
was considered. By a majority of 4 against 2 learned Judges of this Court, it
was held that the term "personal liberty", as used in Article 21, is a
compendious one and includes all varieties of rights to exercise of personal
freedom, .other than those dealt with separately by Article 19, which could
fall under a broad concept of freedom of person. It was held to include
freedom from surveilance, from physical torture, and from all kinds of
harassment of the person which may interfere with ins liberty.

289. Thus, even if Article 21 is not the sole repository of all personal
freedom, it will be clear, from a reading of Gopalan's case (supra) and
Kharak Singh's case (Supra), that all aspects of freedom of person are
meant to be covered by Articles 19 and 21 and 22 of the Constitution. If the
enforcement of these rights by Courts is suspended during the emergency
an inquiry by a Court into the question whether any of them is violated by
an illegal deprivation of it by executive authorities of the State seems futile.

290. For the reasons indicated above I hold as follows:--

Firstly, fundamental rights are basic aspects of rights selected from what
may previously have been natural or common law rights. These basic
aspects of rights are elevated to a new level of importance by the
Constitution. Any other co-extensive rights, outside the Constitution, are
necessarily excluded by their recognition as or merger with fundamental
rights.

Secondly, the object of making certain general aspects of rights fundamental

is to guarantee them against illegal, invasions of these rights by executive,
legislative, or judicial organs of the State. This necessarily means that these
safeguards can also he legally removed under appropriate constitutional or
statutory provisions, although their suspension does not, by itself, take
away the illegalities or their legal consequences.

Thirdly, Article 21 of the Constitution has to be interpreted comprehensively

enough to include, together with Article 19, practically all aspects of
personal freedom. It embraces both procedural and substantive rights.
Article 22 merely makes it clear that deprivations of liberty by means of
laws regulating preventive detention would be included in "procedure
established by law" and indicates what that procedure should be. In that
sense, it could be viewed as, substantially, an elaboration of what is found in

25-06-2021 (Page 133 of 305) www.manupatra.com SOAS Library Library

Article 21, although it also goes beyond it inasmuch as it imposes limits on
ordinary legislative power.

Fourthly, taken by itself, Article 21 of the Constitution is primarily a

protection against illegal deprivations by the executive action of the State's
agents or officials, although, read with other Articles, it could operate also
as a protection against unjustifiable legislative action purporting to authorise
deprivations of personal freedom.

Fifthly, the most important object of making certain basic rights

fundamental by the 'Constitution is to make them enforceable against the
State and its agencies through the Courts.

Sixthly, if the protection of enforceability is validly suspended for the

duration of an emergency, declared under constitutional provisions, the
Courts will have nothing before them to enforce so as to be able to afford
any relief to a person who comes with a grievance before them.

(B) Power to issue writs of Habeas Corpus and oilier powers of High Courts
under Article 226 of the Constitution.

291. Reliance has been placed on behalf of the detenus on the following
statement of the law found in Halsbury's Laws of England (Vol. 11, p. 27,
paragraph 15), where dealing with the jurisdiction to issue such writs in
England it is said:

The right to the writ is a right which exists at common law

independently of any statute, though the right has been confirmed
and regulated by statute. At common law the jurisdiction to award
the writ) was exercised by the Court of Queen's Bench, chancery,
and Common Pleas, and, in a case of privilege, by the Court of
Exchequer.

It is, therefore, submitted that the High Courts as well as this Court which
have the same jurisdiction to issue writs of Habeas Corpus as English Courts
have to issue such writs at common law.

292. The argument seems to me to be based on several misconceptions:

293. Firstly, there are no Courts of the King or Queen here to issue writs of
Habeas Corpus by reason of any "prerogative" of the Britisk Monarch. The
nature of the writ of Habeas Corpus is given in the same volume of

25-06-2021 (Page 134 of 305) www.manupatra.com SOAS Library Library

Halsbury's Laws of England, dealing with Crown proceedings, at page 24, as
follows:

40. The prerogative writ of habeas corpus. The writ of habeas

corpus and subjiciendum, which is commonly known as the writ of
habeas corpus, is a prerogative process for securing the liberty of
the subject by affording an effective means of immediate release
from unlawful or unjustifiable detention, whether in prison or in
private custody. It is a prerogative writ by which the Queen has a
right to inquire into the causes for which any of her subjects are
deprived of their liberty. By it the High Court and the judges of that
Court, at the instance of a subject aggrieved, command the
production of that subject, and inquire into the cause of ins
imprisonment. If there is no legal justification for the detention, the
party is ordered to be released. Release on habeas corpus is not,
however, an acquittal, nor may the writ be used as a means of
appeal.

294. It will be seen that the Common Law power of issuing the writ of
Habeas Corpus is possessed by only certain courts which could issue
"prerogative" writs. It is only to indicate the origin and nature of the writ
that the writ of habeas corpus is known here as a "prerogative" writ. The
power to issue it is of the same nature as a "prerogative" power inasmuch
as the power, so long as it is not suspended, may carry with it an undefined
residue of discretionary power. Strictly speaking, it is a constitutional writ.
The power to issue it is conferred upon Courts in this country exclusively by
our Constitution. All the powers of our Courts flow from the Constitution
which is the source of their jurisdiction. If any provision of the Constitution
authorises the suspension of the right to obtain relief in any type of cases,
the power of Courts is thereby curtailed even though a general jurisdiction
to afford the relief in other cases may be there. If they cannot issue writs of
Habeas Corpus to enforce a right to personal freedom against executive
authorities during the emergency, the original nature of this writ issuing
power-comparable to a "prerogative" power, cannot help the detenu.

295. Secondly, as I have already indicated, whatever could be formerly even

said to be governed by a Common Law prerogative power becomes merged
in the Constitution as soon as the Constitution takes it over and regulates
that subject. This is a well recognised principle of law. I will only cite
Attorney-General v. De Keyser's Royal Hotel Limited [1920] A. C. 508,
where Lord Dunedin, in answer to a claim of the Crown based on
prerogative, said (at p. 526) ;

25-06-2021 (Page 135 of 305) www.manupatra.com SOAS Library Library

 None the less, it is equally certain that if the whole ground of
something which could be done by the prerogative is covered by the
statute, it is the statute that rules. On this point I think the
observation of the learned Master of the Rolls is unanswerable. He
says : "What use could there be in imposing limitations, if the
Crown could at its pleasure disregard them and fall back on
prerogative ?.

296. Thirdly, if there is no enforceable right either arising under the

Constitution or otherwise, it is useless to appeal to any general power of the
Court to issue a writ of Habeas Corpus. The jurisdiction to issue an order of
release, on a Habeas Corpus petition, is only exercisable after due enquiry
into the cause of detention. If the effect of the suspension of the right to
move the Court for a writ of Habeas Corpus is that no enquiry can take
place, beyond finding out that the cause is one covered by the prohibition,
mere possession of some general power will not assist the detenu.

297. If the right to enforce personal freedom through a writ of habeas

corpus is suspended, it cannot be said that the enforcement can be restored
by resorting to "any other purpose". That other purpose could not embrace
defeating the effect of suspension of the enforcement of a Constitutional
guarantee. To hold that would be to make a mockery of the Constitution.

298. therefore, I am unable to hold that anything of the nature of a writ of

habeas corpus or any power of a High Court under Article 226 could come to
the aid of a detenu when the right to enforce a claim to personal freedom,
sought to be protected by the Constitution, is suspended.

(C) The objects of the Maintenance of Internal Security Act the Act') and the
amendments of it.

299. As this Court has recently held, in Haradhan Saha and Anr. v. The State
of West Bengal and Ors. MANU/SC/0419/1974 : 1974CriLJ1479 preventive
detention is to be differentiated from punitive detention. Nevertheless, it is
evident, whether detention is preventive or punitive, it necessarily results in
the imposition of constraints, which, from the point of view of justice to the
detenu. should not be inflicted or continue without fair and adequate and
careful scrutiny into its necessity. This Court pointed out that Article 22 of
the Constitution was designed to guarantee these requirements of fairness
and justice which are satisfied by the provisions of the Act. It said in said
Haradhan Saha and Anr. (supra) (at p. 784):

25-06-2021 (Page 136 of 305) www.manupatra.com SOAS Library Library

 Constitution has conferred rights under Article 19 and also adopted
preventive detention to prevent the greater evil of elements
imperiling the security, the safety of a State and the welfare of the
Nation. It is not possible to think that a person who is detained will
yet be free to move or assemble or form association or unions or
have the right to reside in any part of India or have the freedom of
speech or expression.

300. Provision for preventive detention, in itself, is a departure from

ordinary norms. It is generally resorted to either in times of war or of
apprehended internal disorders and disturbances of a serious nature. Its
object is to prevent a greater danger to national security and integrity than
any claim; which could be based upon a right, moral or legal, to individual
liberty. It has been aptly described as a "jurisdiction of suspicion." See :
Khudiram Das v. State of West Bengal MANU/SC/0423/1974 :
[1975]2SCR832 , State of Madras v. V. G. Row A.I. R. 1952 S. C. 197; R. v.
Halliday [1917] A. C. 260. It enables executive authorities to proceed on
bare suspicion which has to give rise to a "satisfaction", as the condition;
precedent to passing a valid detention order, laid down as follows in Section
3 of the Act:

3 (1) (a) if satisfied with respect to any person (including a

foreigner) that with a view to preventing him from acting in any
manner prejudicial to--

(i) the defence of India, the relations of India with foreign powers,
or the security of India, or

(ii) the security of the State or the maintenance of public order, or

(iii) the maintenance of supplies and services essential to the

community, or

(b) if satisfied with respect to any foreigner that with a view to

regulating ins continued presence in India or with a view to making
arrangements for ins expulsion from India. It is necessary so to do,
make an order directing that such person is detained.

301. The satisfaction, as held consistently by a whole line of authorities of

this Court, is a "subjective" one. In other words, it is not possible to
prescribe objective standards for reaching that satisfaction. Although the
position in law, as declared repeatedly by this Court, has been very clear
and categorical that the satisfaction has to be the subjective satisfaction of

25-06-2021 (Page 137 of 305) www.manupatra.com SOAS Library Library

the detaining authorities, yet, the requirements for supply of grounds to the
detenu, as provided in Section 8 of the Act in actual practice, opened up a
means of applying a kind of objective test by Courts upon close scrutiny of
these grounds. The result has, been, according to the Attorney General,
that" the subjective satisfaction of the detaining authorities has 'tended to
be substituted by the subjective satisfaction of Court on the objective data
provided by the grounds, as to the need to detain for purposes of the Act.
The question thus arose : Did this practice not frustrate the purposes of the
Act ?

302. The position of the detenu has generally evoked the sympathy of
lawyers and law Courts,. They cherish a tradition as zealous protectors of
personal liberty. They are engaged in pointing out, day in and day out, the
essentials of fair trial. They are used to acting strictly on the rules of
evidence contained in the Indian Evidence Act. The possibility of indefinite
incarceration, without anything like a trial, not unnaturally, seems abhorrent
to those with such traditions and habits of thought and action.

303. There is an aspect which perhaps tends to be overlooked in considering

matters which are generally placed for weighment on the golden scales of
the sensitive judicial balance. It is that we are living in a world of such strain
and stress, satirised in a recent fictional depiction of the coming future, if
not of a present already enveloping us. in Mr. Alva Toffler's "Future Shock",
with such fast changing conditions of life dominated by technological
revolutions as well as recurring economic, social, and political crises, with
resulting obliterations of traditional values, that masses of people suffer
from psychological disturbances due to inability to adjust themselves to
these changes and crises. An example of such maladjustment is provided by
what happened to a very great and gifted nation within living memory. The
great destruction, the inhuman butchery, and the acute suffering and misery
which many very civilised parts of the world had to pass through, because
some psychologically disturbed people led by Adolf Hitler, were not
prevented in time from misleading and misguiding the German nation, is
still fresh in our minds. Indeed the whole world suffered, and felt the effects
of the unchecked aberrant Nazi movement in Germany and the havoc it
unleashed when it acquired a hold over the minds and feelings of the
German people with all the vast powers of modern science at their disposal.
With such recent examples before them, it was not surprising that our
Constitution makers, quite far sightedly, provided not only for preventive
detention in our Constitution but also introduced emergency provisions of a
drastic nature in it. These seem to be inescapable concomitants of
conditions necessary to ensure for the mass of the people of a backward

25-06-2021 (Page 138 of 305) www.manupatra.com SOAS Library Library

country, a life of that discipline without which the country's security,
integrity, independence, and pace of progress towards the objectives set
before us by the Constitution will not be safe.

304. I do not know whether it was a too liberal application of the principle
that courts must lean in favour of the liberty of the citizen, which is, strictly
speaking, only a principle of interpretation for cases of doubt or difficulty, or,
the carelessness with which detentions were ordered by Subordinate officers
in the Districts, or the inefficiency in drafting of the grounds of detention,
which were not infrequently found to be vague and defective, the result of
the practice developed by Courts was that detenus did, in quite a number of
cases, obtain from High Courts, and, perhaps even from this Court, orders
of release on Habeas Corpus petitions on grounds on which validity of
criminal trials would certainly not be affected.

305. In Prabhu Dayal Deorah etc etc. v. District Magistrate Kanirup and Ors.
MANU/SC/0056/1973 : 1974CriLJ286 . I ventured, with great respect, in my
minority opinion, to suggest that the objects of the Act may be frustrated if
Courts interfere even before the machinery of redress under the Act through
Advisory Boards, where questions relating to vagueness or irrelevance or
even sufficiency of grounds could be more effectively thrashed out than in
Courts in proceedings under Article 32 or 226 of the Constitution, had been
allowed to complete its full course of operation. In some cases, facts were
investigated on exchange of affidavits only so as to arrive at a conclusion
that some of the facts, upon which detention orders were passed, did not
exist at all. In other cases, it was held that even if a single non-existent or
vague ground crept into the grounds for detention, the detention order itself
was vitiated as it indicated either the effects of extraneous matter or
carelessness or non-application of mind in making the order. Courts could
not separate what has been improperly considered from what was properly
taken into account. Hence detentions were held to be vitiated by such
defects. In some cases, the fact that some matter too remote in time from
the detention order was taken into consideration, in ordering the detention,
was held to be enough to invalidate the detention. Thus, grounds supplied
always operated as an objective test for determining the question whether a
nexus could reasonably exist between the grounds given and the detention
order or whether some infirmities had crept in. The reasonableness of the
detention became the justiciable issue really decided. With great respect, I
doubt whether this could be said to be the object of preventive detention
provisions authorised by the Constitution and embothed in the Act. In any
case, it was the satisfaction of the Court by an application of a kind of
objective test more stringently than the principle of criminal procedure, that

25-06-2021 (Page 139 of 305) www.manupatra.com SOAS Library Library

a defective charge could be amended and would not vitiate a trial without
proof of incurable prejudice to the accused, which became, for all practical
purposes, the test of the correctness of detention orders.

306. I have ventured to indicate the background which seems to me to have

probably necessitated certain amendments in the Act in addition to the
reasons which led to the proclamation of emergency, the effects of which
are considered a little later below. We are not concerned here with the
wisdom of the policy underlying the amendments. It is, however, necessary
to understand the mischief aimed at so as to be able to correctly determine
the meaning of the changes made.

307. The Central Act 39 of 1975 which actually came into effect after
emergency added Section 16A to the Act, to Sub-sections of which have
been the subject matter of arguments before us. They read as follows:

(2) The case of every person (including a foreigner) against whom

an order of detention was made under [this Act on or after the 25th
day of June, 1975, but before the commencement of this section,
shall, unless such person is sooner released from detention, be
viewed within fifteen days from such commencement by the
appropriate Government for the purpose of determining whether
the detention of such person under this Act is necessary for dealing
effectively with the emergency in respect of which the
Proclamations referred to in Sub-section (1) have been issued
(hereafter in this Section referred to as the emergency) and if, on
such review, the appropriate Government is satisfied that it is
necessary to detain such person for effectively dealing with the
emergency, that Government may make a declaration to that effect
and communicate a copy of the declaration to the person
concerned.

(3) When making an order of detention under this Act against any
person (including a foreigner) after the commencement of this
section, the Central Government or the State Government or, as the
case may be, the officer making the order of detention shall
consider whether the detention of such person under this Act is
necessary for dealing effectively with the emergency and if, on such
consideration, the Central Government or the State Government or,
as the case may be, the officer is satisfied that it is necessary to
detain such person for effectively dealing with the emergency, that

25-06-2021 (Page 140 of 305) www.manupatra.com SOAS Library Library

 Government or officer may make a declaration to that effect and
communicate a copy of the declaration to the person concerned:

Provided that where such declaration is made by an officer

it shall be reviewed by the State Government to which such
officer is subordinate within fifteen days from the date of
making of the declaration and such declaration shall cease
to have effect unless it is confirmed by the State
Government, after such review, within the said period of
fifteen days.

308. Act No. 14 of 1976, which received the Presidential assent on 25th
January, 1976, added Section, 16A(9) which runs as follows:

16A(9) Notwithstanding anything contained in any other law or any

rule having the force of law,--

(a) the Grounds on which an order of detention is made or

purported to be made under Section 3 against any person
in respect of whom a declaration is made under Sub-
section (2) or Sub-section (3) and any information or
materials on which such grounds or a declaration under
Sub-section (2) or declaration or confirmation under Sub-
section (3) or the non-revocation under Sub-section (4) of
a declaration are based, shall be treated as confidential and
shall be deemed to refer to matters of State and to be
against the public interest to disclose and save as
otherwise provided in this Act, on one shall communicate or
disclose any such ground, information or material or any
document containing such ground, information or material;

(b) No person against whom an order of detention is made

or purported to be made under Section 3 shall be entitled
to the communication or disclosure of any such ground,
information or material as is referred to in Clause (a) or the
production to him of any document containing such ground,
information or material.

This Section and Section 18 of the Act are the only provisions whose validity
is challenged before us.

309. It appears to me that the object of the above mentioned amendments

was to affect the manner in which jurisdiction of Courts in considering

25-06-2021 (Page 141 of 305) www.manupatra.com SOAS Library Library

claims for relief's by detenus on petitions for writs of Habeas Corpus was
being exercised so that the only available means that had been developed
for such cases by the Courts, that is to say, the scrutiny of grounds supplied
under Section 8 of the Act., may be removed from the judicial armory for
the duration of the emergency. It may be mentioned here that Article 22(5)
and 22(6) of the Constitution provided as follows:

22(5) When any person is detained in pursuance of the order made

under any law providing for preventive detention, the authority
making the order shall, as soon as may be, communicate to such
person the grounds on which the order has been made and shall
afford him the earliest opportunity of making a representation
against the order.

22(6) Nothing in Clause (5) shall require the authority making any
such order as is referred to in that clause to disclose facts which
such authority considers to be against the public interest to
disclose.

310. The first contention, that Section 16A(9) affects the jurisdiction of High
Courts under Article 226, which an order under Article 359(1) could not do,
appears to me to be untenable. I am unable to see how a Presidential Order
which prevents a claim for the en forcement of a fundamental right from
being advanced in a Court, during the existence of an emergency, could
possibly be said not to be intended to affect the exercise of jurisdiction of
Courts at all.

311. The second argument, that Section 16A(9) amounts to a general

legislative declaration in place of judicial decisions which Courts had
themselves to give after considering, on the facts of each case, whether
Article 22(6) could be applied, also does not seem to me to be acceptable.
The result of Section 16A(9), if valid, would be to leave the presumption of
correctness of an order under Section 3 of the Act, good on the face of it,
untouched by any investigation relating to its correctness. Now, if this be
the object and effect of the amendment, it could not be said to go beyond
making it impossible for detenus to rebut a presumption of legality and
validity which an order under Section 3 of the Act, if prima facie good, would
raise in an event. The same result could have been achieved by enacting
that a detention order under Section 3, prima facie good, will operate as
"conclusive proof" that the requirements of Section 3 have been fulfilled.
But, as the giving of grounds is not entirely dispensed with under the Act
even as it now exists this may have left the question in doubt whether

25-06-2021 (Page 142 of 305) www.manupatra.com SOAS Library Library

Courts could call upon the detaining authorities to produce the grounds.
Enactment of a rule of conclusive proof is a well established form of
enactments determining substantive rights in the form of procedural
provisions.

312. In any case, so far as the rights of a detenu to obtain relief are
hampered, the question raised touches the enforcement of the fundamental
right to personal freedom. Its effect upon the powers of the Court under
Article 226 is, as I have already indicated, covered by the language of
Article 359(1) of the Constitution. It is not necessary for me to consider the
validity of such a provision if it was to be applied at a time not covered by
the emergency, or whether it should be read down for the purposes of a suit
for damages where the issue is whether the detention was ordered by a
particular officer out of "malice in fact" and for reasons completely outside
the purview of the Act itself. That sort of inquiry is not open, during the
emergency, in proceedings under Article 226.

313. On the view I take, for reasons which will be still clearer after a
consideration of the remaining questions discussed below., I think that, even
the issue that the detention order is vitiated by "malice in fact" will not be
justiciable in Habeas Corpus proceedings during the emergency although it
may be in an ordinary suit which is not filed for enforcing a fundamental
right but for other relief's. The question of bona fides seems to be left open
for decision by such suits on the language of Section 16 of the Act itself
which says:

16. No suit or other legal proceedings shall lie against the Central
Government or a State Government, and no suit, prosecution or
other legal proceedings shall lie against any person, for anything in
good faith done or intended to be done in pursuance of this Act.

314. Section 16 of the Act seems to leave open a remedy by way of suit for
damages for wrongful imprisonment in a possible case of what may be
called "malice in fact". In the cases before us, we are only concerned with
Habeas Corpus proceedings under Article 226 of the Constitution where in
my opinion, malice in fact could not be investigated as it is bound to be an
allegation subsidiary to a claim for the enforcement of a right to personal
liberty, a fundamental right which cannot be enforced during the emergency.

315. In Sree Mohan Chowdhury v. The Chief Commissioner, Union Territory

of Tripura MANU/SC/0035/1963 : 1964CriLJ132 , a Constitution Bench of
this Court, after pointing out that Article 32(4) contemplated a suspension

25-06-2021 (Page 143 of 305) www.manupatra.com SOAS Library Library

of the guaranteed right only as provided by the Constitution, said (at p.
450-451):

The order of the President dated November 3, 1962, already set

out, in terms, suspends the right of any person to move any Count
for the enforcement of the rights conferred by Articles 21 and 22 of
the Constitution, during the period of emergency. Prima facie,
therefore, the petitioner's right to move this Court for a writ of
Habeas Corpus,, as he has purported to do by this petition, will
remain suspended during the period of the emergency. But even
then it has been contended on behalf of the petitioner that Article
359 does not authorise the suspension of the exercise of the right
guaranteed under Article 32 of the Constitution and that, in terms,
the operation of Article 32 has not been suspended by the
President. This contention is wholly unfounded. Unquestionably, the
Court's power to issue a writ in the nature of habeas corpus has not
been touched by the President's Order, but the petitioner's right to
move this Court for a writ of that kind has been suspended by the
Order of the President passed under Article 359(1). The President's
Order does not suspend all the rights vested in a citizen to move
this Court but only ins right to enforce the provisions of Articles 21
and 22. Thus, as a result of the President's Order aforesaid, the
petitioner's right to move this Court, but not this Court's power
under Article 32, has been suspended during the operation of the
emergency, with the result that the petitioner has no locus standi to
enforce ins right, if any, during the emergency.

316. It is true that the Presidential Order of 1975, like the Presidential Order
of 1962, does not suspend the general power of this Court under Article 32
or the general powers of High Courts under Article 226, but the effect of
taking away enforceability of the right of a detenu to personal freedom
against executive authorities is to affect the locus standi in cases which are
meant to be covered by the Presidential Order. Courts, even in Habeas
Corpus proceedings, do not grant relief independently of rights of the person
deprived of liberty. If the locus standi of a detenu is suspended no one can
claim,, on ins behalf, to get ins right enforced. The result is to affect the
powers of Courts, even if this be an indirect result confined to a class of
cases, but, as the general power to issue writs of Habeas Corpus is not
suspended, this feature was, quite rightly, I respectfully think, pointed out
by this Court in Mohan Chowdhury's case (supra). It would not be correct to
go further and read more into the passage cited above than seems intended
to have been laid down there. The passage seems to me to indicate quite

25-06-2021 (Page 144 of 305) www.manupatra.com SOAS Library Library

explicitly, as the language of Article 359(1) itself shows., that the detenu's
right to move the Courts for the enforcement of ins right to personal
freedom, by proving an illegal deprivation of it by executive authorities of
the State, is certainly not there for the duration of the emergency. And, to
the extent that Courts do not, and, indeed, cannot reasonably, act without
giving the detenu some kind of a right or locus standi, their power to
proceed with a Habeas petition against executive authorities of the State is
itself impaired. It may be that, in form and even in substance., a general
power to issue writs of Habeas Corpus, remains with Courts. But, that could
only be invoked in cases falling entirely outside the purview of; the
Presidential Order and Article 359(1). That is how I, with great respect,
understand the effect of Sree Mohan Chowdhury's case (supra).

317. It is possible that, if a case so patently gross and clear of a detention

falling, on the face of the order of detention or the return made to a notice
from the Court outside the provisions of the Act on the ground of personal
malice of the detaining authority, or, some other ground utterly outside the
Act, arises so that no further investigation is called for, it may be possible to
contend that it is not protected by the Presidential Order of 27th June,
1975, and by the provisions of Article 359(1) of the Constitution at all. If
that could be patent, without any real investigation or inquiry at all, it may
stand on the same footing as an illegal detention by a private individual. The
mere presence of an official seal or signature on a detention order, in such a
purely hypothetical case, may not be enough to convert it into a detention
by the State or its agents or officers. That is the almost utterly inconceivable
situation or type of case which could still be covered by the general power to
issue writs of Habeas Corpus. There may, for example, be a case of a
fabricated order of detention which, the alleged detaining officer, on receipt
of notice, disclaims. It is admitted that Part III of the Constitution is only
meant to protect citizens against illegal actions of organs of the State and
not against wrongs done by individuals.

The remedy by way of a writ of Habeas Corpus is more general. It lies even
against illegal detentions by private persons although not under Article 32
which is confined to enforcement of fundamental rights (Vide : Shrimati
Vidya Verma through next friend R. V. S. Mani, v. Dr. Shiv Narain
MANU/SC/0072/1955 : 1956CriLJ283 . The Attorney General also concedes
that judicial proceedings for trial of accused persons would fall outside the
interdict of the Presidential Order under Article 359(1). therefore, it is
unnecessary to consider hypothetical cases of illegal convictions where
remethes under the ordinary law are not suspended.

25-06-2021 (Page 145 of 305) www.manupatra.com SOAS Library Library

318. Now, is it at all reasonably conceivable that a detention order would,
on the face of it, state that it is not for one of the purposes for which it can
be made under the Act or that it is made due to personal malice or animus
of the officer making it ? Can we, for a moment, believe that a return made
on behalf of the State, instead of adopting a detention order, made by an
officer duly authorised to act, even if there be a technical flaw in it, admit
that it falls outside the Act or was made mala fide and yet the State is
keeping the petitioner in detention ? Can one reasonably conceive of a case
in which, on a Habeas Corpus petition, a bare look at the detention order or
on the return made, the Court could hold that the detention by a duly
authorised officer under a duly authenticated order, stands on the same
footing as a detention by a private person? I would not like to consider
purely hypothetical, possibly even fantastically imaginary, cases lest we are
asked to act, as we have practically been asked to, on the assumption that
reality is stranger than fiction., and that because, according to the practice
of determining validity of detention orders by the contents of grounds
served, a number of detentions were found, in the past, to be vitiated, we
should not presume that executive officers will act according to law.

319. Courts must presume that executive authorities are acting in

conformity with both the spirit and the substance of the law : "Omina
praesumutur rite esse acts", which means that all official acts are presumed
to have been rightly and regularly done. If the burden to displace that
presumption is upon the detenu, he cannot, on a Habeas Corpus petition
under Article 226 of the Constitution., ask the Court to embark upon an
inquiry, during the emergency, to allow him to rebut this presumption. To do
so would, in my opinion, be plainly to countenance a violation of the
Constitution.

320. A great deal of reliance was placed on, behalf of the detenus, on the
principle stated by the Privy Council in Eshuqbayi Eleko v. Officer
Administering the Government of Nigeria and Anr. [1931] A.C. 662 where
Lord Aktin said (at p. 670):

Their Lordships are satisfied that the opinion which has prevailed
that the Courts cannot investigate the whole of the necessary
conditions is erroneous. The Governor acting under the Ordinance
acts solely under executive powers, and in no sense as a Court. As
the executive he can only act in pursuance of the powers given to
him by law. In accordance with British jurisprudence 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

25-06-2021 (Page 146 of 305) www.manupatra.com SOAS Library Library

 ins 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. The analogy of the powers of the English
Home Secretary to deport alienee was invoked in this case. The
analogy seems very close. Their Lordships entertain no doubt that
under the legislation in question, if the Home Secretary deported a
British subject in the belief that he was an alien,, the subject would
have the right to question the validity of any detention under such
order by proceedings in habeas corpus, and that it would be the
duty of the Courts to investigate the issue of alien or not.

321. The salutary general principle, enunciated above, is available, no

doubt, to citizens of this country as well in normal times. But it was certainly
not meant to so operate as to make the executive answerable for all its
actions to the Judicature despite the special provisions for preventive
detention in an Act intended to safeguard the security of the nation, and,
much less, during an emergency., when the right to move Courts for
enforcing fundamental rights is itself suspended. Principles applicable when
provisions, such as those which the Act contains, and a suspension of the
right to move Courts for fundamental rights, during an emergency, are
operative, were thus indicated, in Liversidge v. Sir John Anderson and Anr.
[1942] A. C. p. 206 by Viscount Maughan (at p. 219):

There can plainly be no presumption applicable to a regulation

made under this extraordinary power that the liberty of the person
in question will not be interfered with, and equally no presumption
that the detention must not be made to depend (as the terms of the
Act indeed suggest) on the unchallengeable opinion of the Secretary
of State.

Following the ratio decidendi of Rex v. Secretary of State for Home Affairs,
Ex parte Lees [1941] 1 K. B. 72, the learned Law Lord said (at p. 217).

As 1 understand the judgment in the Lees case it negatived the

idea that the court had any power to inquire into the grounds for
the belief of the Secretary of State (his good faith not being
impugned) or to consider whether there were grounds on which he
could reasonably arrive at his belief.

In Liversidge's case (supra), the Court's power to inquire into the

correctness of the belief of the Secretary of State was itself held to be
barred merely by the terms of a Regulation made under a statute without

25-06-2021 (Page 147 of 305) www.manupatra.com SOAS Library Library

even a constitutional suspension of the right to move Courts such as the one
we have before us.

322. In Liversidge's case (supra), Lord Wright explained Eshuqbayi Elekos'

case (supra), cited before their Lordships., as follows: (at p. 273):

The other matter for comment is the decision in Eshuqbayi Eleko v.

Officer Administering the Government of Nigeria (1931) A.C. 662 ,
where the government claimed to exercise certain powers, including
deportation, against the appellant. The appellant applied for a writ
of habeas corpus, on the ground that the ordinance relied on gave
by express terms the powers it contained only against one who was
a native chief, and who had been deposed, and where there was a
native custom requiring him to leave the area, whereas actually not
one of these facts was present in the case. It was held in effect that
the powers given by the ordinance were limited to a case in which
these facts existed. It was a question of the extent of the authority
given by the ordinance. That depended on specific facts., capable of
proof or disproof in a court of law, and unless these facts existed,
there was no room for executive discretion. This authority has, in
my opinion, no bearing in the present case, as I construe the
powers and duties given by the regulation. There are also obvious
differences between the ordinary administrative ordinance there in
question and an emergency power created to meet the necessities
of the war and limited in its operation to the period of the war. The
powers cease with the emergency. But that period still continues
and, it being assumed that the onus is on the respondents in this
action of unlawful imprisonment, the onus is sufficiently discharged,
in my opinion, by the fact of the order having been made by a
competent authority within the ambit of the powers entrusted to
him and being regular on its face.

323. Viscount Maugham, in Greene v. Secretary of State for Home Affairs

[1942] A.C. 284, after referring to a very comprehensive opinion of Wilmot
C. J. on the nature of Habeas Corpus proceedings in Common Law, pointed
out that a return, good on its face and with no affidavit in support of it,
could not be disputed on the application for a writ. At Common Law, the
"sacred" character of the return, as Wilmot C. J. called it, even without a
supporting affidavit, could not be touched except by the consent of the
parties", because the whole object of the writ was to enquire into the
existence of a legally recognised cause of detention, in a summary fashion,
and not into the truth of facts constituting the cause. By the Habeas Corpus

25-06-2021 (Page 148 of 305) www.manupatra.com SOAS Library Library

Act of 1816, the powers of Courts were extended so that it became possible
to go behind the return in suitable cases other than those where a person
was confined for certain excepted matters including criminal charges. In
these excepted matters the return was and is still conclusive so that English
Courts do not go behind them. In Greene's case, (supra), the rule of
presumptive correctness of the return was applied to the return made on
behalf of the Secretary of State to the extent of treating it as practically
conclusive. It was held that the mere production of the Home Secretary's
order, the authenticity and good faith of which were not impugned,
constituted a complete answer to an application for a writ of Habeas Corpus
and that it was not necessary for the Home Secretary to file an affidavit. It
is interesting to note that, in that case, which arose during the emergency
following the war of 1939, the failure of the Advisory Committee to supply
the correct reasons for ins detention to the petitioner were not held to be
sufficient to invalidate ins incarceration. On the other hand, in this country.,
a violation of the obligation to supply grounds of detention has been
consistently held to be sufficient to invalidate a detention before the
changes in the Act and the Presidential Order of 1975.

324. By Section 7 of the Act 39 of 1975, Section 18 was added to the Act
with effect from 25th June, 1975. This provision reads:

18, No person (including a foreigner) detained under this Act shall

have any right to personal liberty by virtue of natural law or
common law, if any.

In view of what I have pointed out earlier, this provision was not \
necessary. It appears to have been added by way of abundant caution.

325. By Section 5 of the amendment Act 14 of 1976 another amendment

was made in Section 18, substituting, for the words "under this Act" used in
Section 18, the words "in respect of whom an order is made or purported to
have been made under Section 3", retrospectively from 25th day of June,
1975.

326. These amendments are covered by Article 359(1A) of the Constitution.,

so that their validity is unassailable during the emergency on the ground of
violation of any right conferred by Part III of the Constitution. Nevertheless,
the validity of Section 18 of the Act, as it stands, was challenged on the
ground, as I understand it, that, what is described as "the basic structure''
of the Constitution was violated because, it was submitted, the Rule of Law,
which is a part of the "basic structure" was infringed by the amended

25-06-2021 (Page 149 of 305) www.manupatra.com SOAS Library Library

provisions. As I have indicated below., I am unable to subscribe to the view
that the theory of basic structure amounts to anything more than a mode of
interpreting the Constitution. It cannot imply new tests outside the
Constitution or be used to defeat Constitutional provisions. I am unable to
see any force in the attack on the validity of Section 18 of the Act on this
ground.

327. The result of the amendments of the Act, together with the emergency
provisions and the Presidential Order of 27th June, 1975, in my opinion, is
clearly that the jurisdiction of High Courts is itself affected and they cannot
go beyond looking at the prima facie validity of the return made. The
production of a duly authenticated order, purporting to have been made by
an officer competent to make it under Section 3 of the Act, is an absolute
bar to proceeding further with the hearing of a Habeas Corpus .petition.

(D) The purpose and meaning of emergency provisions, particularly Article

359 of our Constitution.

328. From the inception of our Constitution, it was evident that the framers
of it meant to establish a secular democratic system of Government with
certain objectives before it without which real democracy is a mirage.
Hence, they provided us not only with an inspiring Preamble to the,
Constitution and basic Fundamental Rights to citizens, but also with
Directive Principles of State Policy so as to indicate how not only a political,
but, what is more important, social and economic democracy, with
maximum practicable equality of status and opportunity, could be attained.
They foresaw that it may be necessary, for preserving the system thus set
up and for ensuring a rapid enough march towards the objectives placed
before the people of India, to give the executive branch of Government wide
powers, in exceptional situations, so that it may deal with all kinds of
emergencies effectively, and, thereby, safeguard the foundations of good
Government which lie in discipline and orderliness combined with speedy
and substantial justice. The late Prime Minister Jawaharlal Nehru once said :
"You may define democracy in a hundred ways, but surely one of its
definitions is self-discipline; of the community. The more the self-discipline,
the less the imposed discipline".

329. Laws and law Courts are only a part of a system of that imposed
discipline which has to take its course when self-discipline fails. Conditions
may supervene, in the life of a nation, in which the basic values we have
stood for and struggled to attain, the security, integrity, and independence
of the country, or the very conditions on which existence of law and order

25-06-2021 (Page 150 of 305) www.manupatra.com SOAS Library Library

and of law courts depend, may be imperilled by forces operating from within
or from outside the country. _ What these forces are, how they are
operating, what information exists for the involvement of various
individuals, wherever placed, could not possibly be disclosed publicly or
become matters suitable for inquiry into or discussion in a Court of Law.

330. In Liversidge v. Sir John Anderson (supra) the following passages from
Rex v. Halliday [1917] A.C. 260, were cited by Lord Romer to justify
principles adopted by four out five of their Lordships in Liversidges case in
their judgments : (1) Per Lord Atkins (at p. 271):

However precious the personal liberty of the subject may be, there
is something for which it may well be, to some extent sacrificed by
legal enactment, namely, national success in the war, of escape
from national plunder or enslavement'.

(2) Per Lord Finlay, L.C. (at p. 269).

It seems obvious that no tribunal for investigating the question

whether circumstances of suspicion exist warranting some restraint
can be imagined less appropriate than a Court of law.

After citing the two passages quoted above, Lord Romer observed, in
Liversidge''s case (supra) (at p. 281):

I respectfully agree. I cannot believe that the legislature or the

framers of the regulation ever intended to constitute the courts of
this country the ultimate judges of the matters in question.

331. If, as indicated above, the opinion of the overwhelming majority of the
Law Lords of England,, in Liversidge's case (supra), following the principles
laid down earlier also in Rex. v. Halliday Ex Pane Zadig's (supra), was that
the jurisdiction of Courts is itself ousted by a statutory rule vesting the
power of detention on a subjective satisfaction, based possibly on nothing
more than a detenu's descent from or relationship or friendship with
nationals of a country with which England may be at war, and that the
Secretary of State's order indicating that he was satisfied about one of these
matters, on hearsay information which could not be divulged in courts, in
the interests of national safety and security, was enough, I do not think that
either our Constitution in contemplating an ouster of jurisdiction of Courts in
such cases, or our parliament, in enacting provisions which have that effect,
was going beyond the limits of recognised democratic principles as they
operate during emergencies. In fact, decisions on what restraints should be

25-06-2021 (Page 151 of 305) www.manupatra.com SOAS Library Library

put and on which persons., during a national emergency, in the interests of
national security, are matters of policy as explained below, which are
outside the sphere of judicial determination.

332. Situations of a kind which could not even be thought of in England are
not beyond the range of possibility in Asian and African countries or even in
Continental Europe or in America judging from events of our own times.
Indeed, we too have had our fill of grim tragethes, including the
assassination of the father of the nation, which could rock the whole nation
and propel it towards the brink of an unfathomable abyss and the
irreparable disaster which anarchy involves.

333. Let me glance at the Constitutional History of England from where we

took the writ of Habeas Corpus.

334. Sir Erskine May wrote (See : Constitutional History of Eneland, Chapter
XI):

The writ of habeas corpus is unquestionably the first security of civil

liberty. It brings to light the cause of every imprisonment, approves
its lawfulness., or liberates the prinsoner. It exacts obedience from
the highest courts : Parliament itself submits to its authority. No
right is more justly valued. It protects the subject from unfounded
suspicions, from the aggressions of power, and from abuses in the
administration of justice. Yet, this protective law, which gives every
man security and confidence, in times of tranquility, has been
suspended, again and again, in periods of public danger or
apprehension. Rarely, however, has this been suffered without
jealousy, hesitation, and remonstrance; and whenever the perils of
the State have been held sufficient to warrant this sacrifice of
personal liberty, no Minister or magistrate has been suffered to
tamper with the law at ins discretion. Parliament alone, convinced
of the exigency of each occasion, has suspended, for a time, the
right of individuals, in the interests of the State.

The first years after the Revolution were full of danger. A dethroned
king, aided by foreign enemies., and a powerful body of English
adherents, was threatening the new settlement of the Crown with
war and treason. Hence, the liberties of Englishmen, so recently
assured, were several times made to yield to the exigencies of the
State. Again, on occasions of no less peril--the rebellion of 1715.
the Jacobite conspiracy of 1722, and the invasion of the realm by

25-06-2021 (Page 152 of 305) www.manupatra.com SOAS Library Library

 the Pretender in 1745--the Habeas Corpus Act was suspended.
Henceforth, for nearly half a century, the law remained inviolate.
During the American War, indeed, it had been necessary to
empower the king to secure persons suspected of high treason,
committed in North America, or on the high seas, or of the crime of
piracy : but it was not until 1794 that the civil liberties of
Englishmen at home were again to be suspended. The dangers and
alarms of that dark period have already been recounted. Ministers,
believing the State to be threatened by traitorous conspiracies,
once more sought power to countermine treason by powers beyond
the law.

Relying upon the report of a secret committee, Mr. Pitt moved 'for a
bill to empower ins Majesty to secure and detain persons suspected
of conspiring against ins person and Government. He justified this
measure on the ground that whatever the temporary danger of
placing such power in the hands of the Government,, it was far less
than the danger with which the Constitution and society were
threatened. If Ministers abused the power entrusted to them, they
would be responsible for its abuse. It was vigorously opposed by Mr.
Fox, Mr. Grey, Mr. Sheridan, and a small body of adherents. They
denied the disaffection imputed to the people, ridiculed the
revelations of the committee, and declared that no such dangers
threatened the State as would justify the surrender of the chief
safeguard of personal freedom. This measure would give Ministers
absolute power over every individual in the kingdom. It would
empower them to arrest, on suspicion, any maa whose opinions
were obnoxious to them--the advocates of reform., even the
members of the Parliamentary Opposition. Who would be safe,
when conspiracies were everywhere suspected, and constitutional
objects and language believed to be the mere cloak of sedition? Let
every man charged with treason be brought to justice; in the words
of Sheridan, 'where there was guilt, let the broad axe fall, but why
surrender the liberties of the innocent ?

The strongest opponents of the measure, while denying its present

necessity, admitted that when danger is imminent, the liberty of the
subject must be sacrificed to the paramount interests of the State.
Ring leaders must be seized, outrages anticipated, plots
disconcerted, and the dark haunts of conspiracy filled with distrust
and terror. And terrible indeed was the power now entrusted to the
executive. Though termed a suspension of the Habeas Corpus Act,

25-06-2021 (Page 153 of 305) www.manupatra.com SOAS Library Library

 it was, in truth, a suspension of Magna Charta, and of the cardinal
principles of the common law. Every man had hitherto been free
from imprisonment until charged with crime, by information upon
oath, and entitled to a speedy trial; and the judgment of ins peers.
But any subject could now be arrested on suspicion of treasonable
practices, without specific charge or proof of guilt, ins accusers
were unknown; and in vain might he demand public accusation and
trial. Spies and treacherous accomplices., however circumstantial in
their narratives to Secretaries of State and law officers, shrank from
the witness-box; and their victims rotted in gaol. Whatever the
judgment, temper, and good faith of the executive, such a power
was arbitrary, and could scarcely fail to be abused. Whatever the
danger by which it was justified, never did the subject; so much
need the protection of the laws, as when Government and society
were filled with suspicions and alarm.

334-A. It was not until 1801 that the Act was considered "no longer
defensible on grounds of public danger" and Lord Thurlow announced that
he could "not resist the impulse to deem, men innocent until tried and
convicted". It was urged in defence of a Bill indemnifying all those who may
have misused or exceeded their powers during the period of suspension of
the Habeas Corpus in England that, unless it was passed, "those channels of
information would be stopped on which Government relied for guarding the
public peace". Hence,, a curtain was drawn to shield all whose acts could
have been characterised as abuse or excess of power.

334-B. It is unnecessary to cite from Dicey or modern writers of British

Constitutional Law, such as M/s. Wade and Phillips, to show how, in times of
emergency, the ordinary functions of Courts, and, in particular, powers of
issuing writs of Habeas Corpus, have been curtailed. In such periods,
legislative measures known as "suspension of the Habeas Corpus Act",
followed by Acts of Indemnity, after periods of emergency are over, have
been restored to in England. But, during the first world war of 1914 and the
last world war of 1939, it was not even necessary to suspend the Habeas
Corpus Act in England. The Courts themselves, on an interpretation of the
relevant regulations under the Defence of Realm Act, abstained from judicial
interference by denying themselves power to interfere.

335. In Halsbitry's Laws of England (4th Edn. Vol. 8, para 871, page 624),
we find the following statement about the Crown's Common Law prerogative
power in an emergency:

25-06-2021 (Page 154 of 305) www.manupatra.com SOAS Library Library

 The Crown has the same power as a private individual of taking all
measures which are absolutely and immediately necessary for the
purpose of dealing with an invasion or other emergency.

And, as regards statutory powers of the Crown (See : Emergency Powers

Act., 1920, Sec. 1; Emergency Powers Act, 1964, Sec 1), we find (see para
983, page 627):

If it appears to Her Majesty that events of a specified nature have

occurred or are about to occur, Her Majesty may by proclamation
declare that a state of emergency exists. These events are those of
such a nature as to be calculated, by interfering with the supply and
distribution of food, water, fuel or light, or with the means of
locomotion, to deprive the community, or any substantial portion of
the community, of the essentials of life. No proclamation is to be in
force for more than one month., without prejudice to the issue of
another proclamation at or before the end of that period.

XXX XXX XXX XXX

Where a proclamation of emergency has been made, and so long as

it remains in force, the Crown has power by Order in Council to
make regulations for securing the essentials of life to the
Community.

336. In America also, the suspension of the right to writs of Habeas Corpus,
during emergencies, so as to temporarily remove the regular processes of
law, is permissible by legislation (See : Cooky's Constitutional Lanv", 4th
Edn. Chapter 34, p. 360), but it is limited by (Article 1. , Sec. 9, clause 2)
the American Constitution to situations in which there may be a rebellion or
an invasion (See : Willis on "Constitutional Law of United States", 1936 edn.
p. 441 and p.- 5/0). Even more drastic consequences flow from what is
known in France as declaration of a '"State of Seige", and, in other
countries, as a "Suspension of Constitutional Guarantees.

337. Under our Constitution, it will be seen, from an analysis of emergency

provisions, that there is no distinction between the effects of a declaration of
emergency, under Article 352(1), whether the threat to the security of the
State is from internal or external sources. Unlike some other countries,
powers of Presidential declarations under Article 352(1) and 359(1) of our
Constitution are immune from challenge in Courts even when the
emergency is over.

25-06-2021 (Page 155 of 305) www.manupatra.com SOAS Library Library

338. Another noticeable feature of our Constitution is that, whereas the
consequences given in Article 358, as a result of a Proclamation under
Article 352(1), are automatic, Presidential Orders under Article 359(1) may
have differing consequences, from emergency to emergency, depending
upon the terms of the Presidential Orders involved. And then, Article
359(1A), made operative retrospectively by the 38th Constitutional
amendment, of 1st August, 1975, makes it clear that both the Legislative
and Executive Organs of the State, are freed, for the duration of the
emergency, from the limits imposed by Part III of the Constitution.

339. It is unnecessary to refer to the provisions of Articles 356 and 357

except to illustrate the extremely wide character of emergency powers of
the Union Govt. which can, by recourse to these powers, make immune
from judicial review, suspend the federal features of our Constitution which
have, sometimes, been elevated to the basic level. These provisions enable
the Union Govt. to supersede both the legislative and executive wings of
Government in a State in the event of a failure of Constitutional machinery
in that State, and to administer it through any person or body of persons
under Presidential directions with powers of the State Legislature
"exercisable by or under the authority of Parliament". Article 360, applicable
only to Proclamations of financial emergencies, with their special
consequences, indicates the very comprehensive character of the
emergency provisions contained in part XVIII of our Constitution. We are
really directly concerned only with Articles 352 and 353 and 358 and 359 as
they now stand. They are reproduced below:

340. (1) If the President is satisfied that a grave emergency exists

whereby the security of India or of any part of the territory thereof
is threatened, whether by war or external aggression or internal
disturbance, he may, by Proclamation make a declaration to that
effect.

(2) A Proclamation issued under Clause (1)-

(a) may be revoked by a subsequent Proclamation;

(b) shall be laid before each House of Parliament;

(c) shall cease to operate at the expiration of two months

unless before the expiration of that period it has been
approved by resolution of both Houses of Parliament:

25-06-2021 (Page 156 of 305) www.manupatra.com SOAS Library Library

 Provided that if any such Proclamation is issued at
a time when the House of the People has been
dissolved or the dissolution of the House of the
People takes place during the period of two months
referred to in sub-Clause (c), and if a resolution
approving the Proclamation has been passed by
the Council of States, but no resolution with
respect to such Proclamation has been passed by
the House of the People before the expiration of
that period, the Proclamation shall cease to
operate at the expiration of thirty days from the
date on which the House of the People first sits
after its reconstitution unless before the expiration
of the said period of thirty days a resolution
approving the Proclamation has been also passed
by the House of the People.

(3) A Proclamation of emergency declaring that the security of India

or of any part of the territory thereof is threatened by war or by
external aggression or by internal disturbance may be made before
the actual occurrence of war or of any such aggression or
disturbance if the President is satisfied that there is imminent
danger thereof.

(4) The power conferred on the President by this Article shall

include the power to issue different Proclamations on different
grounds, being war or external aggression or internal disturbance or
imminent danger of war or external aggression or internal
disturbance, whether or not there is a Proclamation already issued
by the President under Clause (1) and such Proclamation is in
operation.

(5) Notwithstanding anything in this Constitution,--

(a) the satisfaction of the President mentioned in Clause

(1) and Clause (3) shall be final and conclusive and shall
not be questioned in any court on any ground;

(b) subject to the provisions of Clause (2), neither the

Supreme Court nor any other court shall have jurisdiction
to entertain any question, on any ground, regarding the
validity of--

25-06-2021 (Page 157 of 305) www.manupatra.com SOAS Library Library

 (i) a declaration made by Proclamation by the
President to the effect stated in Clause (1); or

(ii) the continued operation of such Proclamation.

"353. While a Proclamation of emergency is in operation, then--

(a) notwithstanding anything in this Constitution, the

executive power of the Union shall extend to the giving of
directions to any State as to the manner in which the
executive power thereof is to be exercised;

(b) the power of Parliament to make laws with respect to

any matter shall include power to make laws conferring
powers and imposing duties, or authorising the conferring
of powers and the imposition of duties, upon the Union or
officers and authorities of the Union as respects that
matter, notwithstanding that it is one which is not
enumerated in the Union List.

"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 that part be competent to
make or to take, but any law so made shall, to the extent of the in
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 as may be specified in the order.

(1A) While an order made under Clause (1) mentioning any of the
rights conferred by Part III is in operation, nothing in that Part
conferring those rights shall restrict the power of the State as
defined in the said Part 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

25-06-2021 (Page 158 of 305) www.manupatra.com SOAS Library Library

 shall, to the extent of the incompetency, cease to have effect as
soon as the order aforesaid ceases to operate, except as respects
things done or omitted to be done before' the law so ceases to have
effect.

(2) An order made as aforesaid may extend to the whole or any

part of the territory of India.

(3) Every order made under Clause (1) shall, as soon as may be
after it is made, be laid before each House of Parliament.

340. Before dealing with relevant authorities on the meaning and effects of
Article 358 and 359 of the Constitution, I will indicate the special features
and context of the Presidential Order of 27th June, 1975, as compared with
the Presidential Order of 3rd November, 1962. which was the subject matter
of earlier pronouncement of this Court on which considerable reliance has
been placed on behalf of the detenus. In fact, the next two topics are so
connected with the emergency provisions that there is bound to be a good
deal of overlapping between what I have, for the sake of convenience only,
tried to discuss under three heads. Different heads or names are not
infrequently used only to indicate different aspects of what is really one
connected subject matter. Perhaps the last and concluding topic is wide
enough to cover the scope of the whole discussion.

E. The effect of the Presidential Orders and particularly the order of 21st
June, 1975, on the rights of detenus.

341. The Presidential Order of 3rd November 1962 was issued after the
proclamation of emergency under Article 352(1) on 26th October, 1962.
That proclamation said:

...a grave emergency exists whereby the security of India is

threatened by external aggression.

On the other hand, the Presidential Order of 27th June, 1975, with which we
are concerned here was issued under a proclamation which declares "that a
grave emergency exists whereby the security of India is threatened by
internal disturbances".

342. There was also a Presidential proclamation of 3rd December, 1971,

repeating the terms of the proclamation of 26th October, 1962, as under:

25-06-2021 (Page 159 of 305) www.manupatra.com SOAS Library Library

 In exercise of the powers conferred by Clause (1) of Article 352 of
the Constitution, I, V. V. Giri, President of India, by this
Proclamation declare that a grave emergency exists whereby the
security of India is threatened by external aggression.

343. The Presidential Order of 3rd November, 1962, reads as follows:

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 daring 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 ally rule or order made thereunder.

344. The Presidential Order of 27th June, 1975, runs as follows:

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 (including a foreigner) to move any Court for the
enforcement of the rights conferred by Article 14, Article 21 and
Article 22 of the Constitution and all proceedings pending in any
court for the enforcement of the abovementioned rights shall
remain suspended for the period daring which the Proclamations of
emergency made under Clause (1) of Article 352 of the Constitution
on the 3rd December, 1971 and on the 25th June, 1975 are both in
force.

(2) This Order shall extend to the whole of the territory of India
except the State of Jammu and Kashmir.

(3) This Order shall be in addition to and not in derogation of any

order made before the date of this Order under Clause (1) of Article
359 of the Constitution.

345. The striking differences in the terms of the two Presidential Orders set
out above are:

(1) The Presidential Order of 1962 did not specify Article 14 of the
Constitution, but Article 14, guaranteeing equality before the law
and equal protection of laws to all persons in India, is mentioned in

25-06-2021 (Page 160 of 305) www.manupatra.com SOAS Library Library

 the 1975 order. To my mind, this does make some difference
between the intentions behind and effects of the two Presidential
Orders.

(2) The Presidential Order of 1962 expressly hedges the suspension

of the specified fundamental rights with the condition, with regard
to deprivations covered by Articles 21 and 22 of the Constitution
that, "if such person is deprived of such right under the Defence of
India, Act, 1962, or any rules or order made thereunder". In other
words, on the terms of the 1962 Presidential Order, the Courts were
under a duty to see whether a deprivation satisfies these conditions
or not. They could adjudicate upon the question whether a
detention was under the Act or a rule made thereunder. On the
other hand, the Presidential Order of 1975 unconditionally suspends
the enforcement of the rights conferred upon "any person including
a foreigner" to move any Court for the enforcement of the rights
conferred by Articles 14, 21 and 22 of the Constitution. The Courts
are, therefore, no longer obliged or able to test the validity of a
detention by examining whether they conform to statutory
requirements. They will have to be content with compliance shown
with forms of the law.

(3) Presidential Order of 1962 makes no mention of pending

proceedings, but the 1975 order suspends all pending proceedings
for the enforcement of the rights mentioned therein. This further
clarifies and emphasizes that the intention behind the Presidential
Order of 1975 was to actually affect the jurisdiction of Courts in
which proceedings were actually pending. The inference from this
feature also is that all similar proceedings in future will, similarly, be
affected.

346. The result is that I think that there can be no doubt whatsoever that
the Presidential Order of 27th June, 1975, was a part of an unmistakably
expressed intention to suspend the ordinary processes of law in those cases
where persons complain of infringement of their fundamental rights by the
executive authorities of the State. The intention of the Parliament itself to
bring about this result, so that the jurisdiction of Courts under Article 226,
in this particular type of cases, is itself affected for the duration of the
emergency, seems clear enough from the provisions of Section 16A(9) of
the Act, introduced by Act No. 14 of 1976, which received Presidential
assent on 25th January, 1976, making Section 16A(9) operative
retrospectively from 25th June, 1975.

25-06-2021 (Page 161 of 305) www.manupatra.com SOAS Library Library

347. The question before us is : What is the intention behind the
Presidential Order of 27th June, 1975 '? After assigning a correct meaning to
it, we have to determine whether what was meant to be done lay within the
scope of powers vested by Article 359 of the Constitution in the President.
There is no doubt in my mind that the object of the Presidential Order of
27th June, 1975, by suspending the enforcement of the specified rights, was
to affect the powers of Courts to afford relief to those the enforcement of
whose rights was suspended. A I have already indicated, this was within the
purview of Article 359(1) of the Constitution. Hence, the objection that the
powers of the Court under Article 226 may indirectly be affected is no
answer to the direct suspension of rights which was bound to have its effect
upon the manner in which jurisdiction is or could reasonably be exercised
even if that jurisdiction cannot be itself suspended for all types of cases. It
is enough if the ambit of the power to suspend under Article 359(1) is such
as to make exercise of the jurisdiction to protect guaranteed fundamental
rights not reasonably possible.

348. Section 16A(9) also appears to me, as held by My lord the Chief
Justice, to make it impossible for Courts to investigate questions relating to
the existence or absence of bona fides at least in proceedings under Article
226 of the Constitution. It is clear that the validity of Section 16A(9) cannot
be challenged on the ground of any violation of Part III of the Constitution in
view of the provisions of Article 359(1A).

349. No previous decision of this Court deals with a situation which results
from the combined effect of a Presidential Order couched in the language of
the Order of 27th June 1975, and a statutory provision, such as Section
16A(9) of the Act, the validity of which cannot be challenged. Hence, strictly
speaking, earlier decisions are not applicable. I will, however, consider them
under the next heading as considerable argument has taken place before us
on the assumption that these cases do apply to such a situation.

(F) The Rule of Law as found in our Constitution, and how it operates during
the emergency.

350. As I have indicated earlier in this judgment, the term Rule of Law is not
a magic wand which can be waved to dispel every difficulty. It is not an
Aladin's Lamp which can be scratched to invoke a power which brings to any
person in need whatever he or she may desire to have. It can only mean,
for lawyers with their feet firmly planted in the realm of reality, what the law
in a particular State or country is and what it enjoins. That law in England is
the law made by Parliament. That is why Sir Ivor Jennings said (See : Law

25-06-2021 (Page 162 of 305) www.manupatra.com SOAS Library Library

and the Con- situation-III Edn.) that "in England supremacy of Parliament is
the Constitution". And naturally, the Constitution of a country and not
something outside it contains the Rule of Law of that country. This means
that the Rule of Law must differ in shades of meaning and emphasis from
time to time and country to country. It could not be rigid, unchanging, and
immutable like the proverbial laws of the Medes and Persians. Nevertheless,
one has to understand clearly what it means in a particular context. It
cannot be like some brooding omnipotence in the skies. Its meaning cannot
be what anyone wants to make it. It has to be, for each particular situation,
indicated by the Courts which are there to tell the people what it means.

351. This Court has, in no unmistakable terms, indicated what the

Constitution means and how the Rule of Law embedded in it works even
during Emergencies.

352. A statement of the Rule of Law by Jackson, J., in Youngstown Sheet &
Tube Co. v. Sawyer 343 U.S. 579, 655, quoted with approval by this Court,
in Chief Settlement Commissioner, Rehabilitation Department Punjab and
Ors. etc. v. Om Parkcish and Ors. MANU/SC/0138/1968 : [1968]3SCR655 @
661 etc. (at page 661):

With all its defects delays and inconveniences men have discovered
no technique for long preserving free government except that the
Executive be under the law, and that the law be made by
Parliamentary deliberations.

353. It was explained there:

In our constitutional system, the central and most: characteristic

feature is the concept of the rule of law which means, in the
present context, the authority of the law courts to test all
administrative action by the standard of legality. The administrative
or executive action that does not meet the standard will be set
aside if the aggrieved person brings the appropriate action in the
competent court. The rule of law rejects the conception of the Dual
State in which governmental action is placed in a privileged position
of immunity from control of law. Such a notion is foreign to our
basic constitutional concept.

354. This statement, no doubt, includes the concept of determination by

Courts of the question whether an impugned executive action is within the
bounds of law. However, it presupposes : firstly, the existence of a fixed or
identifiable rule of law which the executive has to follow as distinguished

25-06-2021 (Page 163 of 305) www.manupatra.com SOAS Library Library

from a purely policy decision open to it under the wide terms of the statute
conferring a discretionary power to act; and, secondly, the power of the
Courts to test that action by reference to the Rule.

Even, in Emergencies, provided the power of the Court to so test the legality
of some executive act is not curtailed, Courts will apply the test of legality
"if the person aggrieved brings the fiction in the competent Court". But, if
the locus standi of the person to move the Court is gone and the
competence of the Court to enquire into the grievance is also impaired by
inability to peruse the grounds of executive action or their relationship with
the power to act, it is no use appealing to this particular concept of the Rule
of law set out above. It is just inapplicable to the situation which arises
here. Such a situation is governed by the emergency provisions of the
Constitution. These provisions contain the Rule of Law for such situations in
our country.

355. In Mohd. Yaqub etc. v. the State of Jammu & Kashmir

MANU/SC/0035/1967 : 1968CriLJ977 , a seven Judge bench of this Court
pointed out that, whereas Article 358, by its own force, suspends the
guarantees of Article 19, Article 359(1) has the effect of suspending the
operation of specified fundamental rights (strictly speaking it is enforcement
only which is suspended) so that these concepts cannot be used to test the
legality of executive action. Now, much of what Dicey meant by the Rule of
Law was certainly sought to be embothed in Part III of our Constitution. If,
however, the application of Articles 14, 19, 21 and 22 of the Constitution is
suspended, it is impossible to say that there is a Rule of Law found there
which is available for the Courts to apply during the emergency to test the
legality of executive action.

Makhan Singh v. State of Punjab MANU/SC/0039/1963 : 1964CriLJ217 , a

seven Judge decision of this Court was sought to be made a foothold for
several arguments on behalf of the detenus. It, however, seems to me to
have laid down more propositions which demolish various contentions
advanced on behalf of the detenus than those which could assist them. One
main question considered in that case was whether Section 491(1)(b) of the
CrPC could afford a statutory remedy, by an order or direction in the nature
of a writ of Habeas Corpus, at a time when enforcement of the fundamental
right to personal liberty was suspended by the Presidential Order of 1962
already set out above. The suggestion that a Common Law remedy by way
of writ of Habeas Corpus exists, even after Section 491 was introduced in
the Criminal Procedure Code in 1923, was negatived. The sweep of Article
359(1) of the Constitution, taking in the jurisdiction of "any Court", was held

25-06-2021 (Page 164 of 305) www.manupatra.com SOAS Library Library

wide enough to cover any kind of relief claimed by a petitioner for the
enforcement of a specified fundamental right. Inter alia, it was held (at p.
821-822):

If Article 359(1) and the Presidential Order issued under it govern

the proceedings taken under Section 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 ins release on the ground set 'out by him in ins petition,
the Court cannot, purporting to act suo motu, pass any order
inconsistent with the provisions of Article 359(1) and the
Presidential Order issued under it. Similarly, if the proceedings
under Section 491(1)(b) are in by Article 359(1) and the
Presidential Order, the arguments based on the provisions of Article
372 as well as Articles 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 ins specified, fundamental
rights is to suspend the jurisdiction of the Court pro tanto in that
behalf.

This is exactly the interpretation which I have adopted above of Sree Mohan
Chowdhury's case (supra).

356. It was also held in Makhan Singh's case (supra) that, as no attack on
the validity of the Defence of India Act of 1962 and the Rules framed
thereunder, on the ground of violation of fundamental rights, was open
during the emergency, no petition was maintainable on the ground of such
alleged invalidity. It was held (at p. 825-826) there:

therefore, our conclusion is that the proceedings 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 Articles 14, 21 and 22, are
incompetent for the reason that the fundamental rights which are
alleged to have been contravened are specified in the Presidential
Order and all citizens are precluded from moving any Court for the
enforcement of the said specified rights.

356-A. After having decided the questions actually calling for determination
in that case, Gajendragadkar, J., speaking for the majority, expressed some
views on the possible pleas which may still be open to petitioners in

25-06-2021 (Page 165 of 305) www.manupatra.com SOAS Library Library

hypothetical cases despite the Presidential Order of 1962, set out above,
passed under Article 359(1). He said (at page 828):

If in challenging the validity of ins detention order, the detenu is

pleading any right outside the rights specified in the order, ins right
to move any court in that behalf is not suspended, because it is
outside Article 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 ins detention is illegal
for the reason that the mandatory provisions of the Act have been
contravened. Such a plea is outside Article 359(1) and the right of
the detenu to move for ins release on such a ground cannot be
affected by the Presidential Order.

Again, it was observed (at page 828-829):

Take also a case where the detenu moves the Court for a writ of
habeas corpus on the ground that ins 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 or malafide would not be
enough, the detenu will have to prove the malafides. But in the
mala-fides are alleged, the detenu cannot be precluded from
substantiating ins plea on the ground of the bar created by Article
359(1) and the Presidential order. That is another kind of plea which
is outside the purview of Article 359(1).

356-B. The two passages set out above, stating what may be the position in
purely hypothetical cases, are the mainstrays of some of the arguments for
the petitioners. But, none of the Counsel for the petitioners has stated how
these observations are applicable to facts of the case of the particular
petitioner for whom he appears. Assuming, however, that the hypothetical
cases indicate good grounds on which a Habeas, Corpus petition could be
allowed even in an emergency, it was certainly not decided in Makhan
Singh's case (supra) what the process could be for ascertaining that one of
these grounds exist. If that process involves a consideration of evidence in
support of a plea, such as that of mala fides, in proceedings under Article
226,, the most important evidence would be grounds of detention. These
grounds constituted the lever which could have been and was used in the
past by Courts to reach decisions on various pleas, such as the plea that the

25-06-2021 (Page 166 of 305) www.manupatra.com SOAS Library Library

order was not passed after due application of mind to the facts of the
detenu's case or that the satisfaction reached was not with regard to legally
relevant grounds at all. No such means are available now. This difficulty was
certainly not in the way at the time of the decision in Makhan Singh's case
(supra).

357. I am, therefore, of the opinion that pleas which involve any adduction
of evidence would, at any rate, be entirely excluded by the combined effect
of the terms of the Presidential Order of 27th June, 1975, read with the
amended provisions of Section 16A(9) of the Act. A perusal of S. Pratap
Singh v. State of Punjab MANU/SC/0272/1963 : (1966)ILLJ458SC , will
show the kind of evidence which often becomes necessary to justify a plea
of "malice in fact". Pleas about vires of the detention order itself (e.g.
whether it is based on irrelevant grounds or was not passed after due
application of mind) often require investigation of questions of fact involving
scrutiny of actual grounds of detention which is hit by the embargo against
an assertion of a right to move for enforcement of the right to personal
freedom and prohibition against disclosure of grounds. So long as the
executive authorities of the State purport to act under the Act., their
preliminary objection against further hearing will prevail unless, of course,
the officer purporting to detain had, in fact, not been invested at all with any
authority to act in which case the detention would, in my opinion, be on the
same footing as one by a private person who has no legal authority
whatsoever to detain. But, such a defect has to be apparent either on the
face of the order or admitted in the return. Moreover, it can be cured by an
adoption of the order by the State.

358. Detentions which not only do not but could not possibly have any
apparent, ostensible., or purported executive authority of the State
whatsoever to back them, could be equated with those by private persons.
The suspension of enforcement of specified fundamental rights operates
only to protect infringements of rights by the State and its authorised
agents, acting or purporting to act, in official capacities which they could
and do hold. A claim to an order of release from such a patently illegal
detention, which is not by the State or on its behalf, could be enforced even
during the current emergency. But there is no such case before us. All the
cases before us are, as far as I know, of detentions by duly empowered
official under, prima fade, good orders. The possibility, however, of so
unlikely a hypothetical case where there is a lack of legal power to act,
which could be easily removed by the executive authorities of the State
concerned themselves, whenever they desire to do so, is only mentioned to
illustrate my view that the test of legality, applied by Courts, is not entirely

25-06-2021 (Page 167 of 305) www.manupatra.com SOAS Library Library

abrogated and abandoned in the current emergency. But, it can be only one
which should be applicable without going into facts lying behind the return.
The presumption of validity of a duly authenticated order of an officer
authorised to pass it is conclusive in Habeas Corpus proceedings during the
current emergency.

359. State of Madhya Pradesh and Anr. v. Thakur Bharat Singh

MANU/SC/0043/1967 : [1967]2SCR454 was another decision of the
Constitution Bench of this Court relied upon strongly on behalf of detenus.
In that case, an order prohibiting a petitioner from residing in a specified
area under Section 3(1) (b) of the Madhya Pradesh Public Security Act,
1959, which was found to be void, because the provision infringed Article 19
of the Constitution, was held to be challengeable during an emergency
despite the provisions of Article 358 of the Constitution. The ground of the
decision was that, although, the empowering provision could not have been
challenged if it was contained in an enactment made during the emergency,
yet, as the provision was made by an Act passed at a time when Article 19
was operative,, the invalidity of the provision could be demonstrated despite
the existence of the emergency. I do not think that there is any such case
before us. It seems to me to be possible to distinguish the case on the
ground that it was a case of patent voidness of the order passed so that the
principle of legality, which is not suspended, could be affirmed even apart
from enforcement of a specified fundamental right. I think it was placed on
such a footing by Shah J., speaking for this Court.

360. State of Maharashtra v. Prabhakar Pandurang Sangzgiri and Anr.

[1966] SU S. C. R- 702, another decision of the Constitution Bench of this
Court, was also cited. There, an illegal order prohibiting the sending out of
jail by a detenu of a book on matters of scientific interest only, for
publication, was quashed by a High Court, under Article 226 of the
Constitution, despite the Presidential order under Article 359 of the
Constitution, on the ground that there was no condition at all in the Bombay
Conditions of Detention Order, 1951, authorising the Government of
Maharashtra to prohibit the publication of a book of purely scientific interest
just because the petitioner happened to be detained under the Defence of
India Rules, 1962. The High Court's view was affirmed by this Court. This
case has nothing to do with preventive detention. It is a case in which this
Court held that an ultra vires order could be set aside. This could be done
under the residuary jurisdiction of the High Court, which could operate for
"any other purpose". The mere existence of the emergency could not, it was
held, suspend this power. The test applied was of bare illegality outside
Article 19 of the Constitution.

25-06-2021 (Page 168 of 305) www.manupatra.com SOAS Library Library

361. In Dr. Ram Manohar Lohia v. State of Bihar and Ors.
MANU/SC/0054/1965 : 1966CriLJ608 , this Court did, in a petition under
Article 32 of the Constitution apply the test of a satisfaction required on
relevant grounds, by Rule 30, Sub-rule 1, Defence of India Rules, 1962, as a
condition precedent to detention, because the grounds of detention were
mentioned in the detention order itself so that they could be used to
determine whether the detention order fell within the purposes of the Act.
The writ petition was allowed. The alleged satisfaction of the District
Magistrate, who was the detaining authority, was found, on the ground
given for detention, to fall outside Rule 30. It was held that the Presidential
Order under Article 359 was not intended to condone violations of the
Defence of India Act or the rules made thereunder and did not authorise
ultra vires or mala fide detentions. It was pointed out here that satisfaction
about the need to detain in the interests of "law and order" was not the
same thing as one in the interests of "public order". In this case, a well-
known distinction between "public order" and "law and order", was drawn by
Hidayatullah, J., in the following terms:

It will thus appear that just as "public order" in the rulings of the
Court (earlier cited) was said to comprehend disorders of less
gravity than those affecting "security of State", "law and order" also
comprehends disorders of less gravity than those affecting "public
order". One has to imagine three concentric circles. Law and order
represents the largest; circle within which is the next circle
representing public order and the smallest circle represents security
of State. It is then easy to see that an act may affect law and order
but not public order just as an act may affect public order but not
security of the State. By using the expression "maintenance of law
and order" the District Magistrate was widening ins own field of
action and was adding a clause to the Defence of India Rules.

362. I take the decision of this Court in Dr. Lohia's case to mean that. if the
order, on the face of it., is bad and does not satisfy the requirements of the
law authorising detention, the detenu may be released. Sarkar, J., pointed
out there:

The satisfaction of the Government which justifies the order under

the rule is a subjective satisfaction. A court cannot enquire whether
grounds existed which would have created; that satisfaction on
which alone the order could have been made in the mind of a
reasonable person. If that is so--and that indeed is what the
respondent State contends--it seems to me that when an order is

25-06-2021 (Page 169 of 305) www.manupatra.com SOAS Library Library

 on the face of it not in terms of the rule, a court cannot equally
enter into an investigation whether the order of detention was in
fact, that is to say, irrespective of what is stated in it, in terms of
the rule. In other words, in such a case the State cannot be heard
to say or prove that the order was in fact made., for example, to
prevent acts prejudicial to public order which would bring it within
the rule though the order does not say so. To allow that to be done
would be to uphold a detention without a proper order.

363. The case was also decided on a consideration of evidence on the

ground that there was an area of enquiry opened up by the grounds given
for entry by the Court. I do not know how any decision could have been
given in Dr. Lohia's case if grounds of detention were not found to be bad on
the very face of the order stating those grounds, or, it there was no door left
open for judicial scrutiny due to a provision such as Section 16A(9) of the
Act before Us. Thus, the law considered and applied in Dr. Lohitfs case was
different from the law we have to apply under a different set of
circumstances as explained above.

364. In K. Anandan Nambiar and Anr. v. Chief Secretary, Government of

Madras and Ors. MANU/SC/0060/1965 : 1966CriLJ586 , a writ petition
under Article 32 of the Constitution by a Member of Parliament during the
currency of an emergency and a Presidential Order, was dismissed although
ins locus standi to maintain the petition was affirmed on the following
ground:

The petitioners contend that the relevant Rule under which the
impugned orders of detention have been passed, is invalid on
grounds other than those based on Articles 14, 19, 21 and 22., and
if that plea is well-founded, the last clause of the Presidential Order
is not satisfied and the bar created by it suspending the citizens'
fundamental rights under Articles 14, 21 and 22 cannot be pressed
into service.

365. Apparently, the view adopted in Nambiar's case (supra) was that to
question the validity of the provision under which the detention order is
made could not be equated with an allegation of infringement of procedure
established by law. Moreover, this decision was also in a different context
with a different set of applicable provisions. None of the cases before us
involves the assertion that the power under which the detention order
purports to be made itself did not exist in the eye of law.

25-06-2021 (Page 170 of 305) www.manupatra.com SOAS Library Library

366. In Durga Dass Shirali v. Union of India and Ors. MANU/SC/0092/1965 :
1966CriLJ812 , a Habeas Corpus petition against a detention order under
Rule 30 of the Defence of India Rules, 1962, was again dismissed. But, it
was held that Article 358 and the Presidential Order under Article 359(1) did
not debar the petitioner from assailing ins detention on the ground of mala
fides or on the ground that any of the grounds mentioned in the order of
detention is irrelevant. This case is also distinguishable on the ground that
the context., from the point of view of the applicable law. was different.

367. In Jai Lal v. State of West Bengal [1966] Supply. S. C. R. p. 4, 64, this
Court, after taking evidence by affidavits into account and considering the
pleas of mala fides, rejected the petitioner's case although the petitioner
was held, on the strength of earlier decisions of this Court, entitled to raise
the pleas of mala fides despite the Proclamation of emergency and the
Presidential order. Again, the context and the applicable law there were
different.

368. We, however, see that, despite the Proclamation of emergency and a
Presidential Order under Article 359(1), this Court has held that High
Courts, in exercise of their supervisory jurisdiction, could entertain Habeas
Corpus petitions and enforce the principle of legality against the detaining
authorities. No doubt, the executive and the legislative organs of the State
were fully aware of the nature and effect of the decisions of this Court. It is,
therefore., not surprising that, by means of a differently phrased
Presidential Order of 17th June. 1975, and the amendment in the Act.
introducing rather drastic provisions of Section 16A of the Act, the intention
has been made clear that preventive detention should be a matter
controlled exclusively b\ the executive departments of the State.

369. It was contended by Mr. Tarkunde that the Rule of Law under our
Constitution is embothed in the principle of Separation of Powers. It is very
difficult for me to see the bearing of any such doctrine on a pure and simple
question of determination of the meaning of constitutional and statutory
provisions couched in words which leave few doubts unresolved. However,
as arguments based on this doctrine were advanced, I will deal with the
manner in which, I think, laws relating to preventive detention fit in with the
extent to which our Constitution recognises the doctrine.

370. In Rai Sahib Ram Jawaya Kapur and Ors. v. The State of Punjab
MANU/SC/0011/1955 : [1955]2SCR225 , Mukherjea, C.J., speaking for this
Court, said:

25-06-2021 (Page 171 of 305) www.manupatra.com SOAS Library Library

 The Indian Constitution has not indeed recognised the doctrine of
separation of powers in its absolute rigidity but the functions of the
different parts of branches of the Government have been
sufficiently differentiated and consequently it can very well be said
that our Constitution does not contemplate assumptions, by one
organ or part of the State, of functions that essentially belong to
another. The executive indeed can exercise the powers of
departmental or subordinate legislation when such powers are
delegated to it by the legislature.

He further added:

Our Constitution, though federal in its structure, is modelled on the

British Parliamentary system where the executive is deemed to
have the primary responsibility for the formulation of governmental
policy and its transmission into law though the condition precedent
to the exercise of this responsibility is its retaining the confidence of
the legislative branch of the State.

371. If an order of preventive detention is not quasi-judicial, as it cannot be

because of the impossibility of applying any objective standards to the need
for it in a particular case, there could be no question of violating any
principle of separation of powers by placing preventive detention exclusively
within the control of executive authorities of the State for the duration of the
emergency. That seems to me to be the effect of the emergency provisions
of the Constitution and the amendments of the Act already dealt with by
me.

372. Commenting upon Liversidge's case (supra) in "The Law Quarterly

Review" (1942) (Vol. 58-p. 2)., the celebrated jurist and authority on English
Constitutional history and law, Sir William Holds worth, supporting majority
decision there, opined:

The question turns not, as Lord Atkin says upon whether the
common law or the statute law has postulated a 'reasonable' cause
for a decision or an action, but upon the question whether or not
the decision or the action to be taken on a reasonable cause raises
a justiciable issue. Clearly the question whether a person is of
hostile origin or associations so that it is necessary to exercise
control over him, raises, not a justiciable., but a political or
administrative issue.

He added:

25-06-2021 (Page 172 of 305) www.manupatra.com SOAS Library Library

 On principle this distinction seems to me to be clearly right. If the
issue is justiciable, if, that is, it raises an issue within the legal
competence of the Court to try, the Court can decide on the facts
proved before it whether a cause or a suspicion is reasonable, for it
knows: the law as to what amounts in the circumstances to a cause
or a suspicion which is reasonable. If, on the other hand, the issue
is not justiciable, if, that is, it turns, not on a knowledge of the law
as to what amounts in the circumstances to a reasonable cause or
suspicion, but on political or administrative considerations, it can
have no knowledge of the weight to be attached to facts adduced to
prove the reasonableness or unreasonableness of the cause or
suspicion...... for it has neither the knowledge nor the means of
acquiring the knowledge necessary to adjudicate upon the weight to
be attached to any evidence which might be given as to the
existence of circumstances of suspicion or as to the reasonableness
of belief. Since, therefore, it is impossible to apply an objective
standard through the agency of the Courts, the only possible
standard to be applied is the subjective standard, so that the
Secretary of State's statement that he had a reasonable cause for
ins belief must be conclusive.

373. If the meaning of the emergency provisions in our Constitution and the
provisions of the Act is clearly that what lies in the executive field, as
indicated ..above,, should not be subjected to judicial scrutiny or judged by
judicial standards of correctness, I am unable to see how the Courts can
arrogate unto themselves a power of judicial superintendence which they do
not, under the law during the emergency, possess.

374. Dean Roscoe Pound, in the Green Foundation Lectures on "Justice

According to Law" (Yale University Press, 1951) begins ins answer to the
question as to what justice is by a reference" to the posting Pilate, who
would not stay for the answer because he knew that philosophers disagreed
so much, in their answers, that there could be no completely satisfactory
answer. He divides justice itself into three heads., according to the three
types of bodies or authorities which could administer it, and discusses the
advantages and disadvantages of each : Legislative, Executive, Judicial. He
rejects "Legislative Justice", said to be most responsive to popular will, as
too "uncertain, unequal, and capricious". He said that its history, even in
modern times, was filled with "legislative lynchings"., and that this kind of
justice was too susceptible to "the influence of personal solicitation,
lobbying, and even corruption", and subject to guests of passion, prejudice,
and partisanship. He thought that executive or administrative justice, which

25-06-2021 (Page 173 of 305) www.manupatra.com SOAS Library Library

becomes inevitable in carrying out vast schemes of modern socialistic
control and planning of economic, social, and cultural life of the people by
the State was also, despite its own mechanisms of control against misuse of
power., fraught with serious dangers indicated by him. Finally, Dean Pound
finds judicial justice, though not entirely immune from error--and,
sometimes, grievous and costly error--to be superior to the other two types
of justice despite its own inherent shortcomings as compared with executive
or administrative justice for special types of cases.

375. Now, the question before us is not whether Courts should apply the
high standards of "judicial justice" to the facts of each individual case which
are not before us for consideration at all. The question) before us is purely
one of the interpretation of laws as we find them. If, on a correct
interpretation of the legal provisions, we find that the jurisdiction of Courts
was itself meant to be ousted, for the duration of the emergency, to
scrutinise the facts or reasons behind detention orders purporting to have
been made under the Act, because the judicial process suffers from inherent
limitations in dealing with cases of this type, we are bound, by the canons of
"judicial justice" itself, to declare that this is what the laws mean.

376. It appears to me that it does not follow from a removal of the normal
judicial superintendence, even over questions of vires, of detention orders,
which may require going into facts behind the returns, that there is no Rule
of Law during the emergency or that the principles of ultra vires are not to
be applied at all by any authority except when, on the face of the return
itself, it is demonstrate in a Court of Law that the detention does not even
purport to be in exercise of the executive power or authority or is patently
outside the law authorising detention. It seems to me that the intention
behind emergency provisions and of the Act is that,, although such
executive action as is not susceptible to judicial appraisement, should not be
subjected to it, yet, it should be honestly supervised and controlled by the
hierarchy of executive authorities themselves. It enhances the powers and,
therefore, the responsibilities of the Executive.

377. A maxim of justice is sometimes said to be : "Let the heavens fall but
justice must be done ". As applied to judicial justice, it means that justice
must accord with the highest standards of objective, impartial, unruffled
dictates of a clear judicial conscience working "without rear or favour,
affection or ill-will". It does not mean that the object of "judicial justice" is
either to make "the heavens fall" or that it-should be oblivious to
consequences of judicial verdicts on the fate of the nation. It fully
recognises the legal validity of the principle adopted by the English House of

25-06-2021 (Page 174 of 305) www.manupatra.com SOAS Library Library

Lords in both Saaiq's case (supra) and Liversidge's case (supra) : "Salus
Populi Est Supreme Lex" (regard for the public welfare is the highest law).
This is the very first maxim given Broom's Legal Maxim under the first head
: "Rules founded on public policy" (See Broom's "Legal Maxims" p. 1).

378. It is not my object to animadvert here at length on any weaknesses in

our legal or judicial system. I would., however, like to point out that judicial
justice can only be "justice according to law". It tends more often to accord
with legal justice than moral justice. Not only are the fact finding powers of
Courts limited by rules of evidence and procedure, but the process of fact
finding and adjudication can miss their objects due to the buying power of
money over venel witnesses and the capacity of the wealthy to secure the
best forensic talents in the country even if we do not take into account the
liability of judges, like the) rest of human beings, to err. Ends of justice can
be frustrated by all kinds of abuses of the processes of Courts.

379. The machinery of executive justice, though not hide-bound by technical

rules of evidence and procedure, can also be and often is inordinately
dilatory. Its wheels can be clogged by red-tape and by corrupt clerical
underlings if their palms are not greased by honest citizens. Even those in
the upper echelons of the bureaucracy can be sometimes hopelessly unable
to see the true objects of an administrative scheme or of the policy
embodied in a statute. They tend to be more anxious to 'please their
superiors than to do justice so that matters in which executive heads may
not get interested are liable to be neglected for years and even forgotten,
whereas others, in which they are interested, received speedy attention.
They are not even aided by lawyers who, whatever else may be said about
them, have undoubtedly imagination, courage, independence, and devotion
to their client's interests. In any case, executive justice lacks the
appearance of detachment. Justiciable disputes between the State and the
citizen, on principles of natural justice, require independent authorities for
their resolution. It is for this reason that Article 226 of the Constitution
places administrative action and inaction, even at the highest levels, under
judicial superintendence, when it impinges on rights of persons, although
this may have given rise to problems of its own either due to misuse by
litigants of the powers of High Courts under Article 226 of the Constitution
or want of clarify in the drafting of our statutes or the difficulties
experienced by the executive officers of Government in understanding the
laws or the manner in which their own dirties are to be carried out.

380. Considerations, such as those mentioned above, arising out of alleged

carelessness with which, according to the learned Counsel for the detenus,

25-06-2021 (Page 175 of 305) www.manupatra.com SOAS Library Library

detentions are sometimes ordered, were placed before us so that we may
not deny powers of rectification of apparent errors of detaining officers to
High Courts. It was stated by one learned Counsel that a detention order
was once issued against a person who was dead. Obviously, no detention
order could be executed against a dead person and no writ petition could be
moved on behalf of such a person. I have, however., no doubt, that the
machinery of the preventive detention is not so defective as to prevent
executive authorities at the highest levels from doing justice in appropriate
cases where real injustice due to misrepresentations or mis-apprehensions
of fact is brought to their notice. Not only are the highest executive
authorities, under whose supervision the administration of preventive
detention laws is expected to take place, better able than the High Courts,
acting under Article 226 of the Constitution, to go into every question of fact
and are in a much better position to know all relevant facts, but their
knowledge of the meaning of laws to be administered and the policies
underlying them could not be less, even if they are not better, known to
them than to the High Courts on such a matter as preventive detention. As
already indicated, it raises essentially matters of policy. Courts cannot
decide what individuals with what kind of associations and antecedents
should be detained. In some cases., the associations and affiliations of
individuals with groups or organisations may certainly be matters of
common public knowledge. But, it is only the membership and associations
of persons which may be matters of public knowledge. The nature of
information, and the manner in which individuals or organisations concerned
may do something, which may constitute a danger to the security of the
State, are matters of appraisement of situations and policies on which
information could certainly not be broadcast.

381. I, therefore, think that a challenge to the validity of Section 16A(9)

based either on the submission that grounds for detention do not call for
secrecy or that the provision is an unwarranted invasion of judicial power,
even in an emergency, is not well-founded. I will indicate below the
safeguards which exist in the Act itself for obtaining redress on the
executive side in cases' of preventive detention. As was held by this Court in
Ram Jawaya Kapur's case (supra), there is no such strict separation of
powers under our Constitution as one finds in the American Constitution. No
particular provision of the Constitution could be pointed out in support of the
proposition that preventive detention is a matter in which judicial
superintendence must necessarily be preserved as a part of the doctrine of
separation of powers.

25-06-2021 (Page 176 of 305) www.manupatra.com SOAS Library Library

382. Section 3., sub. sec. 3 of the Act shows that the detaining officer has to
submit a report forthwith on a case of preventive detention, together with
grounds of detention and particulars of the case, for the approval of the
State Government. The detention order itself, unless approved by the State
Government, lapses automatically after 12 days. In special cases, covered
by Section 8 of the Act, the proviso to Section 3. sub. sec. 3, makes the
initial order, subject to the approval of the State Government., operative for
22 days. In cases covered by Section 16A(2) and (3) of the Act, in which no
grounds of detention are to be supplied to the detenu, the State
Government has to review and confirm the order if the detention is to,
continue beyond 15 days. Section 14 of the Act provides for revocation of
detention orders without prejudice to the provisions of Section 21 of the
General Clauses Act, 1897. The power of revocation may be exercised not
only by the detaining officer concerned, but by the State Government or the
Central Government also. Temporary release of persons detained is also
provided for by Section 15 of the Act on the order of the appropriate
Government, so as to prevent undue hardship and to meet special
contingencies. The provisions of Article 353(a) of the Constitution also
enable the Union Government to issue directions to a State Government
relating to the manner in which a State's executive power is to be exercised
during the emergency. Means of redress, in cases such as those of mistaken
identity or misapprehension of facts or detentions due to false and malicious
reports circulated by enemies, are thus still open to a detenu by
approaching executive authorities. There is no bar against that. What is not
possible is to secure a release by an order of a Court in Habeas Corpus
proceedings after taking the Court behind a duly authenticated prima facie
good return.

383. An argument before us, to which I would like to advert here, was that,
notwithstanding the emergency provisions., some undefined or even defined
principles of Rule of Law, outside the emergency provisions, can be enforced
by the High Courts in exercise of their powers under Article 226 of the
Constitution because the Rule of Law has been hold by this Court to be a
part of the inviolable ''basic structure" of the Constitution. It was submitted
that, as this basic structure was outside even the powers of amendment of
the Constitution under Article 368 of the Constitution, it could not be
affected by emergency provisions or by provisions of the Act. We were
asked to atleast interpret the emergency provisions and the Act in such a
way as to preserve what was represented to be the "Rule of Law" as a part
of the basic structure of the Constitution.

25-06-2021 (Page 177 of 305) www.manupatra.com SOAS Library Library

384. It seems to me that the theory of a "basic structure" of the
Constitution cannot be used to build into the Constitution an imaginary part
which may be in conflict with Constitutional provisions, The Constitution
cannot have a base cut away from the super-structure. Indeed, as explained
above, it seems to me that the emergency provisions could themselves be
regarded as part of the basic structure of ;he Constitution. At any rate, they
are meant to safeguard the basis of all orderly Government according to
law.

385. Speaking for myself, I do not look upon the theory of a basic structure
of the Constitution as anything more than a part of a well-recognised mode
of construing a document. The Constitution,, like any other document, has
to be read and construed as a whole. This is the common principle which
was applied, though in different ways and with differing results, both by
Judges taking the majority as well as minority views in Kcmvananda Bfiarti's
case (supra). Some of the learned Judges thought that, by an application of
this rule, the scope of the power of amendment, contained in Article 368 of
the Constitution, was limited by certain principles which, though not
expressly laid down in Article 8, could be read into the word "amendment"
as implied limitations upon powers under Article 368. On the other hand,
other learned Judges (including myself) took the view that, considering the
provisions of the Constitution as a whole, the powers of amendment of the
Constitution in Article 368, which operated on all parts of the Constitution
itself and embraced even the power of amending Article 8 of the
Constitution, could not reasonably be so limited. The theory, therefore, was
nothing more than a method o; determining the intent behind the
constitutional provisions. It could not and did not build and add a new part
to the Constitution.

386. It was then urged that want of bona fides was expressly left open for
determination by Courts even in an emergency in Liversidge's case. It must
no:, however, be forgotten that Liversidge's case was not u decision upon a
habeas corpus proceeding, but, it came to the House of Lords at an
interlocutory stage of a suit for damages for false imprisonment when
Liversidge was denied access to particulars of grounds of ins detention. The
question considered there was whether he could-ask for them as a matter of
right. The House of Lords denied him that right.

387. In Greene's case (supra)., which was heard with Liversidge's case
(supra) by the House of Lords, the decision was that the return made on
behalf of the Secretary of State could not be questioned. It is true that even
in Greene's case (supra), a theoretical exception was made: for a case of

25-06-2021 (Page 178 of 305) www.manupatra.com SOAS Library Library

want of bona fides. I call it "theoretical" because such a case is perhaps not
easily conceivable in England. It also requires some explanation as to what
could be meant by holding that a return is "conclusive", but the bona fides
of the order can be challenged. The explanation seems to me to be that
want of bona fides or "malice in fact" was placed on the same footing as
fraud, which nullifies and invalidates the most solemn proceedings. It may,
however, be pointed out that, in Greene's case (supra), it was not held that
mala fides or any other invalidating fact could be proved during the
emergency in habeas corpus proceedings. An explanation of an almost
forma exception for a case of want of bona fides could be that the
reservation of such a plea was meant only for such proceedings in which
"malice in fact" could reasonably be gone into and adjudicated upon. The
position before us, however., is very clear. Section 16A(9) imposes a bar
which cannot be overcome in Habeas Corpus proceedings. In addition, a
specific suspension or enforcement of the right of personal freedom against
executive authorities places the presumption arising from a duly
authenticated order of a legally authorised detaining officer on a richer
footing than a merely ordinary rebut table presumption for purposes of
proceedings under Article 226 of the Constitution. These are, as already
indicated, summary proceedings.

388. I may point out here that the term "mala fide" is often very loosely
used. Even in England, the scope of malice is wide enough to include both
"malice in law" and "malice in fact". Lord Haldane in Shearer v. Shields
[1914] A.c. 808, said:

Between 'malice in fact' and 'malice in law' there is a broad

distinction which is not peculiar to any system of jurisprudence. The
person who inflicts a wrong or an injury upon any person in
contravention of the law is not allowed to say that he did so with an
innocent mind. He is taken to know the flaw and can only act within
the law. He may, therefore, be guilty of 'malice in law', although., so
far as the state of ins mind was concerned he acted ignorantly, and
in that sense innocently. 'Malice in fact' is a different thing. It
means an actual malicious intention on the part of the person who
has done the wrongful act.

389. Now, applying the broad concepts of "malice in law", as stated above,
it has often been argued before us, in cases of preventive detention, that
the burden is upon the executive authorities of proving the strict legality and
correctness of every step in the procedure adopted in a case of deprivation
of personal liberty. To ask the executive authorities to satisfy such a

25-06-2021 (Page 179 of 305) www.manupatra.com SOAS Library Library

requirement,, in accordance with what has been called the principle in
Eshuqbayi Eleko's case (supra) would be in my opinion., to nullify the effect
of the suspension of the enforceability of the procedural: protection to the
right of personal freedom. To do so is really to make the Presidential Order
under Article 359(1) of the Constitution ineffective. therefore, no question of
"malice in law" can arise in Habeas Corpus proceedings when such a
protection is suspendend. As regards the issue of "malice in fact", as T have
already pointed out, it cannot be tried at all in a Habeas Corpus proceeding
although it may be possible to try it in a regular suit the object of which is
not to enforce a right to personal freedom but only to obtain damages for a
wrong done which is not protected by the terms of Section 16 of the Act.
The possibility of such a suit should be another deterrent against dishonest
use of these powers by detaining officers.

390. Mr. Mayakrishnan, learned Counsel for one of the detenus, contended
that state of emergency, resulting from the Presidential Order of 27th June,
1975, cannot be equated with a situation in which Martial Law has been
proclaimed. The argument seems to be that if the jurisdiction of Courts to
enforce the right to personal freedom is affected, the resulting position
would be no different from that which prevails when Martial Law is declared.

391. There is no provision in our Constitution for a declaration of Martial

Law. Nevertheless, Article 34 of the Constitution recognises the possibility of
Martial Law in this country. It provided:

34. Notwithstanding anything in the foregoing provisions of this

Part, Parliament may by law indemnify any person in the service of
the Union of a State or any other person in respect of any act done
by him in connection with the maintenance or restoration of order
in any area within * the territory of India where martial law was in
force or validate any sentence passed, punishment inflicted,
forfeiture ordered or other act done under martial law in such area.

392. As there is no separate indication in the Constitution of conditions in

which Martial Law could be "proclaimed", it could be urged that a
Presidential Order under Article 359(1) has a similar effect and was intended
to provide for situations in which Martial Law may have to be declared in
any part of the country. But, a Presidential Order under Article 359(1) of the
Constitution would, ordinarily, have a wider range and effect throughout the
country than the existence of Martial Law in any particular part of the
country. The Presidential Proclamations are meant generally to cover the
country as a whole. "Martial Law" is generally of a locally restricted

25-06-2021 (Page 180 of 305) www.manupatra.com SOAS Library Library

application. Another difference is that conditions in which what is called
"Martial Law" may prevail result in taking over by Military Courts of powers
even to try offences; and, the ordinary or civil Courts will not interfere with
this special jurisdiction under extraordinary conditions. Such a taking over
by Military Courts is certainly outside the provisions of Article 359(1) of the
Constitution taken by itself. It could perhaps fall under Presidential powers
under Articles 53 and 73 read with Article 355. Article 53(2) lays down:

53(2) Without prejudice to the generality of the foregoing provision

the supreme command of the Defence Forces of the Union shall be
vested in the President and the exercise thereof shall be regulated
by law.

And, Article 355 provider,:

It shall be the duty of the Union to protect every State against

external aggression and internal disturbance and to ensure that the
government of every State is carried on in accordance with the
provisions of this Constitution.

A similarity in results, however, between Martial Law and conditions

resulting from a Presidential Order under Article 359(1) is that, if no
provision is made by an Act of Indemnity, the civil liabilities of military or
civil officers, acting mala fide and outside the law, are not removed ipso
facto by either Martial Law or the Proclamation of emergency.

393. In Halsbury's Laws of England (4th Edn. vol. 8, para 982, page 625),
an explanation of Martial Law, as it is known in British Constitutional Law, is
given as follows:

The Crown may not issue commissions in tune of peace to try

civilians by martial law; but when a state of actual war, or of
insurrection, not or rebellion amounting to war exists, the Crown
and its officers may use the amount of force necessary in the
circumstances to restore order. This use or force is sometimes
termed "martial law". When once a state of actual war exists the
civil courts have no authority to call in question the actions of the
military authorities, but it is for the civil courts to decide, if their
jurisdiction is invoked, whether a state of war exists which justifies
the application of martial law. The powers such as they are, of the
military authorities cease and those of the civil courts resumed ipso
facto with the termination of the State of war; and in the absence
of an act of Indemnity, the civil courts may inquire into the 24-

25-06-2021 (Page 181 of 305) www.manupatra.com SOAS Library Library

 -833SCIJ76 legality of anything done during the state of war. Even
if there is an Act of Indemnity couched in the usual terms, malicious
acts will not be protected. Whether this power of using
extraordinary measures is really a prerogative of the Crow, or
whether it is merely an example of the common law right and duty
of ail, ruler and sublet alike, to use the amount of free necessary to
suppress disorder, is not uite free from doubt. It is however, clear
that so-called military courts set up under martial law are not really
courts at all and so an order of prohibition will not issue to restrain
them. Probably the correct view to take of martial law itself is that
it is no law at all.

394. It is not at all necessary for the purposes of the decision of cases
before us to determine how proclamations of emergency are related to the
more drastic conditions in which ' Martial Law" if is law at all, may come into
existence due to the very necessities of a situation It is evident that the
emergency provisions of our Constitution with situate. It is evident that the
emergency provisions of our Constitution are very comprehensive.. They are
intended not merely to deal with situations when actual out-break of
hostilities with another country has taken place and a war is going on but
also when the country's peace, prowess, security and independence are
threatened by dangers other internal or external or both. Whether there is a
"grave emergency", falling within Article 352(1), is a matter entirely for the
President to determine.

395. Attempts were made by some Seamed Counsel to paint very gloomy
pictures of possible consequences if this Court held that no relief was open
to petitioners against deprivation of their personal when a number of cases
of serious misuse of their powers by the detaining officers were said to be in
evidence. do not think that it is either responsible advocacy or the
performance of any partriotic or public duty to suggest that powers of
preventive detention are being misused in the current emergency when our
attention could not be drawn to the allegations in a single case even by way
of illustration of the alleged misuse instead of drawing upon one's own
imagination to conjure up phantoms. In fact I asked some learned Counsel
to indicate the alleged facts of any particular case before us to enable us to
appreciate how the power of preventive detention had been misused.
Mostly, the answers given were that the facts of the cases were not before
us at this stage which is true. But. it is significant that no case of alleged
"malice in fact" could be even brought to our notice.

25-06-2021 (Page 182 of 305) www.manupatra.com SOAS Library Library

396. It seems to me that Courts can safely act on the presumption that
powers of preventive detention are not being abused. The theory that
preventive detention serves a psycho-therapeutic purpose may not be
correct. But the Constitutional duty duty of every Govt. faced with threats of
wide spread disorder and chaos to meet it with appropriate steps cannot be
denied. And if one can refer to a member of common knowledge appearing
from newspaper reports a umber of detenus arrested last year have already
been released. This shows that the whole situation whole situation is
periodically reviewed. Furthermore we under stand that the care and
concern bestowed by the State authorities ' upon the welfare of detenus
who are well housed ,we fed and well treated., is almost maternal Even
parents have to take appropriate preventive action against these children
who may threaten to burn down the house they live in.

397. If there are, under our Constitution some obligations or overriding

powers or duties vested in superior Courts as learned Counsel for the
detenus seemed to be contending for , to enforce the claims of
constitutionality quite apart from the suspended powers and duties of Courts
to enforce fundamental rights. I an sure that the current emergency,
justified not only the rapid improvements due to it in the seriously
dislocated national economy and discipline but also by the grave danger of
tomorrow, apparent to those who have the eyes to see them, averted by it,
could not possibly provide the occasion for the discharge of such powers, if
any, in the courts set up by the they must always be guided by the principle
already indicated: "Sauls Populi Supreme Lex" . Indeed, as I understand
even the majority view in Golaknath's cases(supra), it was that deposit the
invalidity of constitutional amendments of provisions containing fundamental
rights, to, to give effect to the view would be contrary to this principle. The
case for the detenus before us, 'however fails on preliminary hurdles.
Despite strenuous efforts, their learned Counsel were quite unable to show
any constitutional invalidity, directly or indirectly, in any of the measures
taken, whether legislative or executive, by or on behalf of the State.

398. The real question for determination by us relates only to the meaning
and effect of the Constitutional and statutory provisions indicated above
which are applicable during the current emergency. A large number of other
questions including even some quite remotely connected with the real
question involved were permitted by this Court t to be argued because of
the went concern and anxiety of this Court when problems relating to
neuronal liberty are raised. In the interpretation of the relevant provisions
adopted by me the validity of detention orders purporting to be passed
under the Act cannot be challenged in Habeas Corpus proceedings.. Judicial

25-06-2021 (Page 183 of 305) www.manupatra.com SOAS Library Library

proceedings in criminal Courts, not meant for the enforcement of
fundamental rights, are not either at the initial or appellate or revisional
stages covered by the Presidential order of 1975. Habeas Corpus petitions
are not maintainable in such cases on another ground. It is that the prisoner
is deemed to be in proper custody under orders of a Court.

399. My answer to the two questions set out in the beginning of this
judgment.. which I compressed into one is as follows:

400. A prima facie valid detention order that is to say, one duly
authenticated and passed by an officer authorised to make it recording
purported satisfaction to detain the petitioner under the maintenance of
Internal Security Act. Which is operative either before or after its
confirmation by the Government is a complete answer to a petition for a writ
of Habeas Corpus. Once such an order is shown to exist in response to a
notice for a writ of Habeas Corpus, the High Court cannot inquire into its
validity or vires on the ground of either mala fides of any kind or of non-
compliance with any provision of the Maintenance of internal Security Act in
Habeas Corpus proceedings. The preliminary objection of the State must be
accepted in such a case.

401. The result is that the appeals before us are allowed and the judgment
and order of the High Court in each case is set aside. The High Court
concerned will itself now pass an order on each petition in accordance with
law as laid down by this Court and the provisions of Article 359(1) of the
Constitution.

Y.V. Chandrachud, J.

402. During the last few years, many questions of far-reaching

constitutional importance have engaged the attention of this Court but these
appeals, perhaps, present problems of the gravest magnitude. They involve
an adjustment between two conflicting considerations, the liberty of the
individual on one hand and exigencies of the State on the other. This
balancing of the most precious of human freedoms--the liberty of the
subject--as against the most imperative of the State's obligations--the
security of the State--gives rise to multi-dimensional problems quite beyond
the scope and compass of each right considered separately and in isolation.
Can the freedom of the individual be subordinated to the exigencies of the
State and if so, to what extent ? The Constitution concedes to the Executive
the power of Preventive detention, but in the name of national security can
that jurisdiction of suspicion be so exercised as to reduce the guarantee of

25-06-2021 (Page 184 of 305) www.manupatra.com SOAS Library Library

personal liberty to a mere husk ? Detention without trial is a serious inroad
on personal freedom but it bears the sanction of our Constitution. The
Constituent Assembly composed of politicians, statesmen, lawyers and
social workers who had attained a high status in their respective specialties
and many of whom had experienced the travails of incarceration owing
solely to their political beliefs, resolved to put Article 22, clauses (3) to (7)
into the Constitution, may be as a necessary evil. But does that mean that,
more as a rule than as an exception, any person can be detained without
disclosing the grounds of detention to him or to the Court which may be
called upon to try ins Habeas Corpus petition ? And can such grounds and
the information on which the grounds are based be deemed by a rule of
evidence to relate to the affairs of the State, therefore, confidential and
therefore privileged? Blind, unquestioning obethence does not flourish on
English soil, said Lord Simonds in Christie v. Leachinsky [1947] A.C. 573
,591 Will it flourish on Indian soil ? These broadly are the sensitive
questions for decision and importantly, they arise in the wake of *
Proclamations of emergency issued by the President

403. Part XVIII of the Constitution, called "emergency provisions", consists

of Articles 352 - 360. Article 352(1) provides that if the President is satisfied
that a grave emergency exists whereby the security of India or of any part
of the territory thereof is threatened, whether by war or external aggression
or internal disturbance, he may, by Proclamation, make a declaration to that
effect. A Proclamation issued under Clause (1) is required by Clause (2)(b)
to be laid before each House of Parliament and by reason of Clause (2) (c) it
ceases to operate at the expiration of two months unless before the
expiration of that period it has been approved by resolutions of both Houses
of Parliament. By Clause (3) of Article 352, a Proclamation of emergency
may be made before the actual occurrence of war or of external aggression
or internal disturbance, if the President is satisfied that there is imminent
danger thereof. Clause (5) (a) makes the satisfaction of the President under
Clauses (1) and (3) final, conclusive and non-justiciable. By Clause (5)(b),
neither the Supreme Court nor any other court has jurisdiction, subject to
the provisions of Clause (2), to entertain any question on any ground
regarding the validity of a proclamation issued under Clause (1) or the
continued operation thereof.

404. Article 358 provides that:

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

25-06-2021 (Page 185 of 305) www.manupatra.com SOAS Library Library

 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 in
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.

405. Article 359(1) empowers the President, while a Proclamation of

emergency is in operation, to declare by order 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.

Clause (1A), which was inserted retrospectively in Article 359 by Section 7

of the Thirty-eighth Amendment Act, 1975, provides:

While an order made under Clause (1) mentioning any of the rights
conferred by Part III is in operation, nothing. in that Part conferring
those rights shall restrict the power of the State as defined in the
said Part 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
order aforesaid ceases to operate, except as respects thinks done or
omitted to be done before the law so ceases to have effect.

Clause (3) of Article 359 requires that every order made under Clause (1)
shall, as soon as may be after it is made, be laid before each House of
Parliament.

406. Article 352 was resorted to for the first time when hostilities broke out
will) China. On October 26, 1962 the President issued a Proclamation
declaring that a grave emergency existed whereby the security of India was
threatened by external aggression. This proclamation was immediately
followed by the Defence of India Ordinance, 4 of 1962, which was later
replaced by the Defence of India Act, 196?. On November 3, 1962 the
President issued an Order under Article 359(1) of the Constitution, which
was later amended by an Order dated November 11, 1962 stating that:

25-06-2021 (Page 186 of 305) www.manupatra.com SOAS Library Library

 the right of any person to move any court for the enforcement of
the rights conferred by Article 14, 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.

(Emphasis supplied).
Article 14 was added to the Order of November 3, 1962 by the amendment
dated November 11, 1962. The emergency declared on October 26, 1962
was revoked by a Proclamation dated January 10, 1968 issued under Article
352(2)(a) of the Constitution.

407. The Defence of India Act, 1962 was to remain in force during the
period of operation of the Proclamation of emergency issued on October 26,
1962 and for a period of six months thereafter. The Act of 1962 expired on
July 10, 1968.

408. The maintenance of Internal Security Act. 26 of 1971, (MISA), was

brought into force on July 2, 1971 in the shadow of hostilities with Pakistan.
Section 3(1) of that Act provides as follows:

3. (1) The Central Government or the State Government may.--

(a) if satisfied with respect to any person (including a

foreigner) that with a view to preventing him from acting in
any manner prejudicial to--

(i) the defence of India, the relations of India with

foreign powers, or the security of India, or

(ii) the security of the State or the maintenance of

public order, or

(iii) she maintenance of supplies and services

essential to the community, or

(b) if satisfied with respect to any foreigner that with a

view to regulating his continued presence in India or with a
view to linking arrangements for his expulsion from India,

25-06-2021 (Page 187 of 305) www.manupatra.com SOAS Library Library

 it is necessary so to do make mi order directing that such
person be detained.

409. Section 8 of the Act requires that the grounds on which the order of
detention is made shall be commutate to the detenu within a certain period
but that the authority making the order may not disclose facts which it
considers to be against the public interest to disclose.

410. Consequent on the Pakistani aggression, the President issued a

Proclamation of emergency on December 3, 1971 on the ground that the
security of India was threatened by external aggression. By an order dated
December 5. 1971 issued under Article 359(1) of the Constitution, the right
of foreigners' to move any court for the enforcement of rights conferred, by
Articles 14, 21 and 22 was suspended.

411. In September 1974 the MISA was amended by Ordinance 11 of 1974

to include Sub-section (c) in Section 3(1), by which be right to detain was
given as against smugglers and offenders under the Foreign Exchange
Regulation Act, 1947. On November 16, 1974 the President issued a
Declaration under Article 359(1) suspending the right of persons detained
under Section 3(1)(c) of the MISA to move for enforcement of the rights
conferred by Article 14, Article 21 and Clauses (4), (5), (6) and (7) of Article
22 of the Constitution..

412. On June 25, 1975 the President issued a Proclamation under Article
352(1) declaring that a grave emergency existed whereby the security of
India was threatened by internal disturbance. On June 27, 1975 the
President issued an Order under Article 359(1) which reads as follows:

G.S.R. 361 (E)--In exercise of powers conferred by Clause (1) of

Article 359 of the Constitution, the President hereby declares that
the right of any person (including a foreigner) to move any court for
the enforcement of the Rich's conferred by Article 14, Article 21 and
Article 22 of the Constitution and all proceedings pending in any
court for the enforcement of the above mentioned rights shall
remain suspended for the period during which the proclamation of
emergency made under Clause (1) of Article 352 of the Constitution
on the 3rd December, 1971 and on the 25th of June, 1975 are both
in force.

The Order shall extend to the whole of the territory of India.

25-06-2021 (Page 188 of 305) www.manupatra.com SOAS Library Library

 This Order shall be in addition to and not in derogation of any Order
made before the date of this Order under Clause (1) of Article 359
of the Constitution.

413. Various persons detained under Section 3(1) of the MIS A filed
petitions in different High Courts for the issue of the writ of Habeas Corpus.
When those petitions came up for hearing, the Government raised a
preliminary objection to their maintainability on the ground that in asking
for release by the issuance of a writ of habeas corpus, the detenus were in
substance claiming that they had been deprived of their personal liberty in
violation of the procedure established by law, which plea was available to
them under Article 21 of the Constitution only. The right to move for
enforcement of the right conferred by that Article having been suspended by
the Presidential Order dated June 27, 1975 the petitions, according to the
Government, were liable to be dismissed at the threshold. The preliminary
objection has been rejected for one reason or another by the High Courts of
Allahabad, Bombay, Delhi, Karnataka, Madhya Pradesh, Punjab and
Rajasthan. Broadly, these High Courts have taken the view that despite the
Presidential Order it is open to the detenus to challenge their detention on
the ground that it is ultra vires, as for example, by showing that the order
on the face of it is passed by an authority not empowered to pass it, or it is
in excess of the power delegated to the authority, or that the power has
been exercised in breach of the conditions prescribed in that behalf by the
Act under which the order is passed, or that the order is not in strict
conformity with the prevision of the Act. Some of these High Courts have
further held that the detenus can attack the order of detention on the
ground that it is malafide, as for example, by showing that the detaining
authority did not apply its mind to the relevant considerations, or that the
authority was influenced by irrelevant considerations, or that the authority
was actuated by improper motives. Being aggrieved by the finding recorded
by these Rich Courts on the preliminary point, the State Governments and
the Government of India have filed these appeals, some under certificates
granted by the High Courts and some by special leave granted by this Court.
The High Courts of Andhra Pradesh, Kerala and Madras have upheld 'he
preliminary objection.

414. During the pendency of these appeals and while the hearing was in
progress, the President issued an order dated January 8, 1976 under Article
359(1) declaring that the right to move any court for the enforcement of the
rights conferred by Article 19 and the proceedings pending in any court for
the enforcement of those rights shall remain suspended during the operation

25-06-2021 (Page 189 of 305) www.manupatra.com SOAS Library Library

of the Proclamations of emergency dated December 3, 1971 and June 25,
1975.

415. On behalf of the appellants, the appeals were argued by the learned
Attorney-General and the learned Additional Solicitor-General. The learned
Advocates-General of various States argued in support of their contentions.
A string of counsel appeared on behalf of "the respondents, amongst them
being Shri Shanti Bhushan, Shri V. M. Tarkunde, Shri R. B. Jethmalani, Shri
S. J. Sorabji, Shri A. B. Dewan, Shri C. K. Daphtary, Dr. N. M. Ghatate, Shri
G. C. Dwivedi, Shri Santokh Singh, Shri Sharad Manohar, Shri Daniel Latin"
and Shri Mayakrishnan. The learned Advocate-General of Gujarat generally
supported their submissions.

416. The learned Attorney-General contended that Article 21 is the sole

repository of the right to life and personal liberty and if the right to move
any court for the enforcement of that right is suspended by the Presidential
Order issued under Article 359(1), the detenus have no locus standi to file
the writ petitions and therefore these petitions must be dismissed without
any further inquiry into the relevance of the material on which the grounds
of detention are based or the relevance of the grounds or the bona fides of
the detaining authority, if the MISA permits the non-disclosure of grounds
and indeed prevent their disclosure, there is no question of inquiring into the
reasons or grounds of detention and courts must accept at its face value the
subjective satisfaction of the detaining authority as recorded in the order of
detention. "There is no half-way house" asserted the Attorney-General. But,
not inconsistently with the basic submission that the detenus have no locus
standi to file the petitions for habeas corpus, he conceded that the court
may grant relief if the detention order is on the face of it bad, as for
example, if it is passed by a person not authorised to pass it, or if it is
passed for a purpose outside those mentioned in Section 3(1) of the MISA
or if it does not bear any signature at all.

417. The learned Additional Solicitor-General indicated during the course of

ins argument the limits of judicial review in the event of the court rejecting
the main submission of the Attorney-General. He contended that Section
16A(9) of MISA contains but a rule of evidence and is therefore not open to
attack on the ground that it encroached upon the jurisdiction of the High
Court under Article 226 of the Constitution. Since Section 16AC9) is not
unconstitutional, no court can ask for the production of the file relating to a
detenu or ask for the disclosure of the grounds of detention. If such
disclosure is not made, no adverse inference can be raised by holding that
by reason of non-disclosure, the detenu's case stands unrebutted. The

25-06-2021 (Page 190 of 305) www.manupatra.com SOAS Library Library

learned Additional Solicitor-General contended that there was no warrant for
reading down Section 16A(9) so as to permit disclosure to the court, to the
exclusion of the parties and if any inquiry is permissible at all into a habeas
corpus petition, the inquiry must be limited to the following points : (i)
Whether the order is made in exercise or purported exercise of power
conferred by a law; (ii) If such law was pre-emergency law, is it a valid law;
(iii) whether the authority which passed the order is duly empowered to do
so by the law; (iv) Whether the person sought to be detained is the person
named in the order of detention; (v) Whether the stated purpose of the
detention is one that comes within the law; (vi) Have the procedural
safeguards enacted by the law been followed; and (vii) Where grounds are
furnished (i.e. when 16-A does not apply) do such grounds ex-fade justify
the apprehension of the detaining authority or is it vitiated by a logical non-
sequltur ? Such an inquiry, according to the learned Counsel, can never
extend to an objective appraisal of the material and the information for the
purpose of testing the validity of the subjective satisfaction of the detaining
authority.

418. The arguments advanced on behalf of the respondents covered a wide

range but they may be summarized thus:

1. The object of Article 359(1) and the effect of an order issued

under it is to remove restraints against. The Legislature so that
during the emergency, it is free to make laws in violation of the
fundamental rights mentioned in the Presidential Order.

2. Under a Constitution which divides State functions into

Executive, Legislative and Judicial, the executive functions must be
discharged consistently with the valid laws passed by the
Legislature and the order and decrees passed by the Judiciary. The
suspension of the right to enforce fundamental right cannot confer
any right on the Executive to court the law by which it is bound as
much in times of emergency as in times of peace. Since there is a
valid law regulating preventive detention, namely, the MISA, every
order of detention . passed by the Executive must conform to the
conditions prescribed by that law.

3. Article 359(1) may remove fetters imposed by Part III but it

cannot remove those arising from the principle of rule of law or
from the principle of the limited power of the Executive under the
system of checks and balances based on separation of powers.

25-06-2021 (Page 191 of 305) www.manupatra.com SOAS Library Library

 4. The obligation cast on the Executive to act in accordance with the
law does not arise from any particular Article of the Constitution but
from the inherent compulsion arising from the principle of rule of
law which is a central feature of our constitutional system and is a
basic feature of the Constitution. The suspension of the right to
enforce Article 31 does not automatically entail the suspension of
the rule of law. Even during emergency, the rule of law is not and
cannot be suspended.

5. The Presidential Order under Article 359(1) may bar the

enforcement of fundamental rights mentioned in the order by a
petition under Article 32 before the Supreme Court. But. the
Presidential Order cannot bar the enforcement of rights other than
fundamental rights by a petition filed under Article 226 in the High
Court.

6. Common law rights as well as statutory rights to personal liberty

can be enforced through writ petitions file under Article 226, despite
the Presidential Order issued under Article 359(1). Similarly,
contractual rights, natural rights and non-fundamental
constitutional rights like those under Articles 256, 265 and 361 (3)
of the Constitution, can be enforced under Article 226. Article 226
empowers the High Courts to issue writs and directions for the
enforcement of fundamental rights, "and for any other purpose".

7. The essence of the inquiry in a Habeas Corpus petition is whether

the detention is justified by law or is ultra VIRES. the law. Such an
inquiry is not shut cut by the suspension of the rural to enforce-
fundamental rights.

8. It the Presidential Order is construed as a bar 10 the

maintainability of the writ petitions under Article 22ft of the
Constitution, that Article shall have been amended without a proper
and valid constitutional amendment,

9. Article 21 of the Constitution is not the sole repository of the

right to life or personal liberty. There is no authority for the
proposition that; on the contention; 01 fundamental right by Part
III the corresponding pre-existing rights merged with the
fundamental rights and that with the suspension OL fundamental
rights, the corresponding pre-existing rights also got suspended.

25-06-2021 (Page 192 of 305) www.manupatra.com SOAS Library Library

 10. Suspension of the right lo enforce Article 21 cannot put a citizen
in a worse position than in the pre Constitution period. The pre
Constitution right of liberty was a right in rein and was totally
dissimilar from the one created by Article 21. The pre Constitution
right was merely a right not to be detained, save under the
authority of law.

11. Civil liberty or personal liberty is not a conglomeration of

positive rights. It is a negative concept and constitutes an area of
free action because no law exists curtailing it or authorising its
curtailment.

12. Section 16A(9) of the MISA A is unconstitutional as it

encroaches upon the High Courts' powers under Article 226 of the
Constitution by creating a presumption that the grounds on which
the order of detention is made and any information or materials on
which the grounds are based shall be treated as confidential and
shall be deemed to refer to matters of State, so that it will be
against the public interest to disclose the same.

13. Section 18 of MISA as amended by Act 39 of 1975 which came

into force with effect from June 25, 1975 cannot affect the
maintainability of the present petitions which were filed before the
Amendment.

14. The dismissal of writ petitions on the ground that such '
petitions are barred by reason of the Presidential Order issued
under Article 359(1) would necessarily mean that during the
emergency no person has any right to life or personal liberty; and

15. If the detenus are denied any forum for the redress of their
grievances, it would be open to the Executive to whip the detenus
to starve them, to keep them in solitary confinement and even to
shoot them, which would be a startling state of affairs in a country
governed by a written Constitution having in it a Chapter on
Fundamental Rights. The Presidential Order cannot permit the
reduction of Indian citizens into slaves.

The validity of the 38th and 39th Constitution (Amendment} Acts was not
challenged by the respondents.

419. The key to these rival contentions can be found in the emergency
provisions contained in Chapter XVIII of the Constitution. The Presidential

25-06-2021 (Page 193 of 305) www.manupatra.com SOAS Library Library

declaration of emergency is made final, conclusive and non-justiciable by
Clause (5) of Article 352, which was introduced by the 38th Amendment
retrospectively. But apart from the fact that the Constitution itself has given
finality to declarations of emergency made by the President, it is difficult to
see how a Court of law can look at the declaration of emergency with any
mental reservations. The facts and circumstances leading to the declaration
of emergency are and can only be known to the Executive, particularly when
an emergency can be declared, as provided in Article 352(3), before the
actual occurrence of war, external aggression or internal disturbance, so
long as the President is satisfied that there is imminent danger thereof. The
actual occurrence of war or external aggression or internal disturbance can
be there for anyone to see but the imminent danger of these occurrences
depends at any given moment on the perception and evaluation of the
national or international situation, regarding which the court of law can
neither have full and truthful information nor the means to such information.
Judge and Jury alike may form their personal assessment of a political
situation but whether the emergency should be declared or not is a matter
of high State policy and questions of policy are impossible to examine in
courts of law. The High Courts whose judgments are under appeal have,
with the greatest respect, failed to perceive this limitation on the power of
judicial review, though in fairness to them it must be stated that none of
them has held that the declaration of emergency is open to judicial scrutiny.
But at the back of one's mind is the facile distrust of executive declarations
which recite threat to the security of the country, particularly by internal
disturbance. The mind then weaves cobwebs of suspicion and the Judge,
without the means to knowledge of full facts, covertly weighs the pros and
cons of the political situation and substitutes ins personal opinion for the
assessment of the Executive, which, by proximity and study, is better placed
to decide whether the security of the country is threatened by an imminent
danger of internal disturbance. A frank and unreserved acceptance of the
Proclamation of emergency, even in the teeth of one's own pre-disposition.
is conducive to a more realistic appraisal of the emergency provisions.

420. A declaration of emergency produces far-reaching consequences. While

it is in operation the executive power of the Union, by reason of Article 353,
extends to the giving of directions to any State as to the manner in which
the executive power thereof is to be exercised. Secondly, the power of
Parliament to make laws with respect to any matter includes, during
emergency, the power to make laws conferring powers and imposing duties
or authorising the conferring of power sand imposition of duties upon the
Union or officers and authorities of the Union as respects that matter,
notwithstanding that the matter is not enumerated in the Union List. Article

25-06-2021 (Page 194 of 305) www.manupatra.com SOAS Library Library

354 confers power on the President to direct that the provisions of Articles
268 to 279, which deal with distribution of revenues between the Union and
the States, shall have effect subject to such exceptions or modifications as
the President thinks fit, but not extending beyond the expiration or the
financial year in which the proclamation ceases to operate. A Proclamation
of emergency automatically curtails the operation of Article 19. As provided
in Article 358, while the Proclamation is in operation nothing in Article 19
shall restrict the power of the State to make any law or to take any
executive action which the State would but for the provisions contained in
Part III be competent to make or to take. Any law so made ceases to have
effect to the extent of the in competency as soon as the proclamation
ceases to operate.

421. Then comes Article 359 which is directly in point. It authorises the
President to issue an order declaring the suspension of the right to move
any court for the enforcement of such of the rights conferred by Part III as
the President may specify in his Order. Clause (1A) which was introduced in
Article 359 by the 38th Amendment Act retrospectively has, inter alia,
transported the provisions of Article 358 into Article 359 during the
operation of an Order made by the President under Article 359(1). The
Orders issued by the President in the instant case under Article 359(1)
provide for the suspension of the right to move any court for the
enforcement of the rights conferred by Articles 14, 19, 21 and clauses (4) to
(7) of Article 22. Article 21 of the Constitution runs thus:

No person shall be deprived of his life or personal liberty except

according to procedure established by law.

422. The principal question for decision in these appeals is whether,

notwithstanding the fact that the Order issued by the President under Article
359(1) suspends the right of every person to move any court for the
enforcement of the right to personal liberty conferred by Article 21, it is
open to a person detained under a law of preventive detention like the MISA
to ask for his release by filing a petition in the High Court under Article 226
of the Constitution for the writ of habeas corpus.

423. The writ of habeas corpus is described by May in his 'Constitutional

History of England (Ed. 1912, Vol. II, p. 130 (Chapter XI) ) as the first
security of civil liberty. Julius Stone in Social Dimensions of Law and Justice
(Ed. 1966, p. 203), calls it a picturesque writ with an extraordinary scope
and flexibility of application. The Latin term "habeas corpus" means 'you
must have the body' and a writ for securing the liberty of the person was

25-06-2021 (Page 195 of 305) www.manupatra.com SOAS Library Library

called habeas corpus ad subjiciendum. The writ affords an effective means
of immediate release from an unlawful or unjustifiable detention, whether in
prison or in private custody. The writ is of highest constitutional importance
being a remedy available to the lowliest subject against the most powerful
government.

424. The liberty of the individual is the most cherished of human freedoms
and even in face of the gravest emergencies, Judges have played a historic
role in guarding that freedom with zeal and jealousy, though within the
bounds, the farthest bounds, of constitutional power. The world-wide
interest generated by the lively debate in Liversidge v. Sir John Anderson
and Anr.[1942] A.C. 206; Lord Atkin, p. 244 has still not abated. And
repeated citation has not blunted the edge of Lord Atkin's classic dissent
where he said:

I view with apprehension the attitude of judges who on a mere

question of cons ruction when face to face with claims involving the
liberty of the subject show themselves more executing minded than
the executive. ...In this country , 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.... 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.

425. Sir William Blackstone in his 'Commentaries on the Laws of England

(4th Ed., Vol I pp. 105 to 107) says that the preservation of personal liberty
is of great importance to the public because if it were left in the power of
ever the highest person to imprison anyone arbitrarily there would soon be
an end of all other rights and immunities. "To bereave a man of life, or by
violence to confiscate his estate, without accusation ortrial, would be so
gross and notorious an act of despotism, as must at once convey the alarm
of tyranny throughout the whole kingdom; but confinement of the person,
by secretly hurrying him to gaol, where his sufferings are unknown or
forgotten, is a less public, a less striking, and therefore a more dangerous
engine of arbitrary government." The learned commentator goes on to add:
"And yet, sometimes, when the state is in real danger, even this may be a
necessary measure. But the happiness of our Constitution is, that it is not
left to the executive power to determine when the danger of the state is so
great, as to render this measure expedient; for it is the parliament only, or
legislative power, that, whenever it sees proper, can authorize the Crown, by
suspending the Habeas Corpus Act for a short and limited time, to imprison
suspected persons without giving any reason for so doing."

25-06-2021 (Page 196 of 305) www.manupatra.com SOAS Library Library

426. May in his 'Constitutional History of England (Ed. 1912, p. 124, 130)'
says that during the course of the last century every institution was
popularized and every public liberty was extended but long before that
period Englishmen had enjoyed personal liberty as their birthright. It was
more prized and more jealously guarded than any other civil right. "The Star
Chamber had fallen: the power of arbitrary imprisonment had been wrested
from the Crown and Privy Council: liberty had been guarded by the Habeas
Corpus Act...." Speaking of the writ of habeas corpus May says that it
protects the subject from unfounded suspicions, from the aggressions of
power and from abuses in the administration of justice. "Yet this protective
law, which gives every man security and confidence, in times of tranquility,
has been suspended, again and again, in periods of public danger or
apprehension. Rarely, however, has this been suffered without jealousy,
hesitation, and remonstrance; and whenever the perils of the state have
been held sufficient to warrant this sacrifice of personal liberty, no Ministeror
magistrate has been suffered to tamper with the law at his discretion.
Parliament alone, convinced of the exigency of each occasion, has
suspended, for a time, the rights of individuals, in the interests of the
State."

427. Dicey in his Introduction to the Study of the Law of the Constitution
(10th Edition) says that:

During periods of pipoticial excitement the power or duty of the

Courts to issue a writ of habeas corpus, and thereby compel the
speedy trial or release of persons charges with crime, has been
found an inconvenient of dangerous limitation on the authority of
the executive government. Hence has arisen the occasion for
statutes which are popularly called Habeas Corpus Suspension Acts.

428. E.C.S. Wade AND Godfrey PHILLIPS observe in their Constitutional Law
(8th Ed., Chapter 48, 717, 718) that times of Grave National emergency,
normal constitutional principle must if necessary give way TO the overriding
need to deal with the emergency. According to the learned authors:

It has always been recognised that times of grave national

emergency demand the of special powers to the Executive. At such
Times arbitrary arrest and imnrsonment may be legalised by Act of
Parliament. Modern war demands the abandonment of personal
liberty in that the duty of compulsory national service necessarily
takes away for the time being the right of the individual to cheese
his occupation.

25-06-2021 (Page 197 of 305) www.manupatra.com SOAS Library Library

The learned authors refer to the English practice of passing Habeas Corpus
Suspension Acts in times of danger to the State. These Acts prevented the
use of habeas corpus and as soon as the period of suspension was over
anyone who for the time being had been denied the assistance of the writ
could bring an action for false imprisonment. Suspension did not legalise
illegal arrest. it merely suspended a particular remedy and therefore, a
practice grew under which at the close of the period of suspension an
Indemnity Act would be passed in order to protect officials from the
consequences of any illegal act which they might have committed under
cover of the suspension of the prerogative writ.

429. Thomas M. Ccoley says in the "General Principles of Constitutional Law

(4th Ed. Chapter XXXIV, pp. 360-361) in the U.S.A. that though the right to
the writ of habeas corpus by which the liberty of the citizens is protected
against arbitrary arrests is not. expressly declared in the American
Constitution, it is recognised in Article 1, Section 9, Clause 2 which says
that:

The privileges of the writ of habeas corpus shall not be suspended,

unless when in cases of rebellion or invasion the public safety may
require it.

It would appear that in America something similar to the passing of Acts of

Indemnity has been done by making provisions in State Constitutions.

430. Thus, though the liberty of the individual is a highly prized freedom
and though the writ of habeas corpus is a powerful weapon by which a
common man can secure his liberty, there are times in the history of a
Nation when the liberty of the individual is required to be subordinated to
the larger interests of the State. In times of grave disorders, brought about
by external aggression or internal disturbance, the stability of political
institutions becomes a sine qua non of the guarantee of all other rights and
interests. "To assert an absolute exemption from imprisonment in all cases,
is inconsistent with every idea of law and political society; and in the end
would destroy all civil liberty, by rendering its protection impossible.",
(Blackstone's Commentaries on the Laws of England. 4th Ed , Vol III pp.
125-126) The "clear and present danger test" evolved by Justice Holmes in
Schenck v. United States (1919) 249 U.S. 47 , may well be extended to
cases like the present where there is a threat of external aggression. On the
heels of American entry into the first World War on June 15, 1917, the
Congress adopted the Espionage Act creating three new offences which went
beyond the prohibition of spying and sabotage. It prescribed a punishment

25-06-2021 (Page 198 of 305) www.manupatra.com SOAS Library Library

of a fine of 10,000 dollars and 20 years' imprisonment. A year later, the Act
was amended by what is popularly called the Sedition Act which rendered it
illegal even to say anything to obstruct the sale of United States bonds or to
say anything contemptuous regarding the form of Government of the United
States. A unanimous court upheld Schenck's conviction under the Act for
propagating that compulsory service in the Armed Forces was "a monstrous
wrong against humanity in the interest of Wall Street's chosen few". The
judgment was delivered in 1919 when the war was already over and Holmes
J. held that things that can be said in times of peace will not be endured
during times of war and no court will regard them as protected by any
constitutional right.

431. The emergency provisions were incorporated into our Constitution on

the strength of experience gained in England and U.S.A. But the object of
Article 359 is to confer wider power on the President than the power to
merely suspend the right to file a petition for the writ of habeas corpus.
Article 359 aims at empowering the President to suspend the right to
enforce all or any of the fundamental rights conferred by Part III. It is in
order to achieve that object that Article 359 does not provide that the
President may declare that the remedy by way of habeas corpus shall be
suspended during emergency. Personal liberty is but one of the fundamental
rights conferred by Part 111 and the writ of habeas corpus is peculiar to the
enforcement of the right to personal liberty. It must follow that the
suspension of the right to enforce the right conferred by Article 21 means
and implies the suspension of the right to file a habeas corpus petition or to
take any other proceeding to enforce the right to personal liberty conferred
by Article 21.

432. But then it is urged on behalf of the respondents that by their writ
petitions, respondents did not seek to enforce the right to personal liberty
conferred by Article 21 or possessed by them apart from it. They were really
seeking a declaration that the order of detention was illegal for the reason
that it did not comply with the requirements of the law under which it was
passed. In support of this argument reliance is placed upon a passage in
H.W.R. Wade's Administrative Law (3rd Ed. , pp. 127, 128) to the effect that
habeas corpus is a remedy not only for the enforcement of the right to
personal liberty but is also a remedy for the enforcement of the principle of
ultra vires. This argument lacks substance and overlooks the realities of the
situation. It may be open to a detenu by filing a petition for the writ of
habeas corpus to contend that order under which he is detained is ultra
vires of the statute to which the order owes its existence. But one must
have regard to the substance of the matter and not to mere form. The real

25-06-2021 (Page 199 of 305) www.manupatra.com SOAS Library Library

and substantial relief which the detenu asks for by a writ of habeas corpus is
that he should be freed from detention and the reason for the relief is that
the order of detention is ultra vires. It is clear, apart from the form in which
the relief may or may not be clothed, that the respondents through their
writ petitions were moving the High Courts for enforcing their right to
personal liberty. The history of the writ of habeas corpus which is succinctly
narrated in the late Mr. M. C. Setalvad's 'The Common Law in India' (Pages
37-41 (Ed. 1960, Hamlyn Lectures) shows that the writ of habeas corpus
which was in its inception a purely procedural writ gradually developed into
a constitutional remedy furnishing a most powerful safeguard for individual
freedom. Mr. Setalvad quotes that the writ has been described as "the key
that unlocks the door to freedom". Respondents were surely not interested
in obtaining an academic declaration regarding the ultra vires character of
their detention. They wanted the door to freedom to be opened by the key
of the habeas corpus writ.

433. Equally untenable is the contention that Article 226 which occurs in
Chapter V, Part VI of the Constitution is an entrenched provision and,
therefore, under Article 368 no amendment can be made to Article 226
without ratification by the Legislatures of not less than one-half of the
States. It is true that Article 226 is an entrenched provision which cannot
suffer an amendment except by following the procedure prescribed by the
proviso to Article 368(2). But the Presidential Order is issued under the
Constitution itself and if its true construction produces a certain result, it
cannot be said that some other Article of the Constitution stands thereby
amended. Article 359(1) provides for the passing o[an order by the
President declaring that the right to move for the enforcing of fundamental
rights mentioned in the Order shall be suspended. That may, in effect, affect
the jurisdiction of the High Courts to entertain a petition for the issuance of
the writ of habeas corpus. But that does not bring about any amendment of
Article 226 within the meaning of: Article 368, which speaks of amendments
to the Constitution by the Parliament in the exercise of its constitutional
power. Article 226 and Article 359(1) are parts of the same fundamental
instrument and a certain interpretation of one of these Articles cannot
amount to an amendment of the other.

434. It is also not correct to say that any particular interpretation of: Article
359(1) will mean the abolition of the jurisdiction and power of the Supreme
Court under Article 32 and of the High Courts under Article 226 of the
Constitution. The true implication of the Presidential Order is to take away
the right of any person to move any court for the enforcement of the rights
mentioned in the Order. In strict legal theory the jurisdiction and powers of

25-06-2021 (Page 200 of 305) www.manupatra.com SOAS Library Library

the Supreme Court and the High Courts remain the same as before since
the Presidential Order merely takes away the locus standi of a person to
move these Courts for the enforcement of certain fundamental rights during
the operation of the Proclamation of emergency. It is important to
appreciate that the drive of Article 359(1) is not against the courts but is
against individuals, the object of the Article being to deprive the individual
concerned of his normal right to move the Supreme Court or the High Court
for the enforcement of the fundamental rights conferred by Part 111 of the
Constitution. In Sree Mohan Chowdlwry v. The Chief Commissioner, Union
Territory of Tripura MANU/SC/0035/1963 : 1964CriLJ132 a Constitution
Bench of this Court, dealing with an Order issued by the President on
November 3, 1962 under Article 359(1), observed:

...Unquestionably, the Court's power to issue a writ in the nature of

habeas corpus has not been touched by the President's Order, but
the petitioner's right to move this Court for a writ of that kind has
been suspended by the Order of the President passed under Article
359(1). " The President's Order does not suspend all the rights
vested in a citizen to move this Court but only his right to enforce
the provisions of Articles 21 and 22. Thus, as a result of the
President's Order aforesaid, the petitioner's right to move this
Court, but not this Court's power under Article 32 has been
suspended during the operation of emergency, with the result that
the petitioner has no locus standi to enforce his right, if any. during
the emergency.

435. According to the respondents, the limited object of Article 359(1) is to

remove restrictions on the power of the Legislature so that during the
operation of the emergency it would be free to male laws in violation of the
fundamental rights specified in the Presidential Order. This argument loses
sight of' the distinction between the provisions of Article 358 and Article
359(1A) on the one hand and of Article 359(1) on the other. Article 358, of
its own force, removes the restrictions on the power of the Legislature to
make laws inconsistent with Article 19 and on the power of the Executive to
take action under a law which may thus violate Article 19. Article 358 does
not suspend any right which was available under Article 19 to any person
prior to the Proclamation of emergency. under Article 359(1) the President is
empowered to suspend the right of an individual to move any court for the
enforcement of the rights conferred by Part III as may be mentioned in the
Order. Consequent upon such Order, all proceedings pending in any court for
the enforcement of the rights so mentioned remain suspended during the
period that the Proclamation is in force or such shorter period as the Order

25-06-2021 (Page 201 of 305) www.manupatra.com SOAS Library Library

may specify. Article 359(1) is thus wider in scope than Article 358. This
distinction has an important bearing on the main point under consideration
because it shows that it was not enough to provide that nothing in Article 19
shall restrict the power of the State to make any law or to take any
executive action which the State would, but for the provisions contained in
Part III, be competent to make or take. In order to effectuate the purposes
of emergency, it was necessary further to provide that no person would
have any right to move for the enforcement of his fundamental rights
mentioned in the Presidential Order and that pending proceedings in that
behalf shall remain suspended during the operation of the emergency. It
seems elementary that a fundamental right can be enforced as much in
regard to a law which takes away that right contrary to the provisions of the
Constitution as against the Executive, if it acts contrary to the provisions of
a law or without the authority of law. In view of he language of Article
359(1) and considering the distinction between it and the provisions of
Article 358, there is no justification for restricting the operation of Article
359(1) as against laws made by the Legislature in violation of the
fundamental rights.

436. Reliance was placed by the respondents on the decisions of this Court
in Sree Mohan Chowdliury v. The Chief Commissioner, Union Territory of
Tripura [1964] 3 S.C R. 142 and Makhan Singh v. State of Punjab
MANU/SC/0039/1963 : 1964CriLJ217 in support of their contention that
Article 359(1) operates in the legislative and not in the executive field.
These decisions do not support such a proposition. On the contrary, it is
clear from the two decisions that the effect of the Presidential Order under
Article 359(1) is (o take away the locus standi of a person to move any
court for the enforcement of his fundamental rights which are mentioned in
the Order. Neither of the two cases deals directly with the question whether
the operation of Article 359(1) is restricted to the legislative held but, if at
all, the ratio of those cases may be logically extended to cover executive
acts also. During times of emergency, it is the Executive which commits
encroachments on personal liberties and the object of Article 359(1) is to
empower the President to suspend the right to move any court for the
enforcement of a right to complain against the actions of the Executive, no
less than against the laws passed by the Legislature, if either the one or the
other contravenes any of the fundamental rights mentioned in the Order.

437. This position was controverted by the respondents from several angles.
It was contended that in a Constitution which divides State functions into
Executive, Legislative and Judicial, the executive functions must be
discharged consistently with the laws passed by the Legislature and the

25-06-2021 (Page 202 of 305) www.manupatra.com SOAS Library Library

orders and decrees passed by the judiciary. The suspension of the right to
enforce fundamental rights cannot confer any privilege on the Executive to
flout the law by which it is bound as much in times of emergency as in times
of peace. therefore, the argument proceeds, there being a valid law
regulating preventive detention, namely the MISA, every order of detention
passed by the Executive must conform to the conditions prescribed by that
law. The current of thought underlying this argument was highlighted by a
learned Counsel for the respondents by saying that it is strange that in the
face of a law passed by the Parliament, which in passing the law must
assume that it will be obeyed, the Executive can flout the law with impunity
by relying on the Presidential Order issued under Article 359(1). Yet another
point of view presented on this aspect of the case was that permitting the
Executive to defy and disobey the law made by the Legislature is
tantamount to destroying one of the important basic features of the
Constitution that the Executive is bound by the laws made by the
Legislature. Finally, it was urged that the Preamble to the Constitution
speaks of a Sovereign Democratic Republic and, therefore, the Executive
which is subordinate to the Legislature cannot act to the prejudice of the
citizen save to the extent permitted by laws validly made by the Legislature
which is the chosen representative of the people.

438. In view of the true scope and object of Article 359(1), which has
already been dealt with above, these arguments have to be rejected. In the
first place, it is difficult to appreciate the argument of 'basic features'
because we are not concerned to pronounce upon the validity of an
amendment made to the Constitution by a parliamentary measures. We are
concerned to understand the scope of Article 359(1) and what it implies.
That Article is as much a basic feature of the Constitution as any other and
it would be inappropriate to hold that because in normal times the
Constitution requires the Executive to obey the laws made by the
Legislature, therefore, Article 359(1) which is an emergency measure, must
be construed consistently with that position. The argument of basic feature
is wrong for yet another reason that Article 359(1) does not provide that the
Executive is free to disobey the laws made by the Legislature. At the cost of
repetition it must be said that what Article 359(1) achieves is merely the
suspension of the right of an individual to move a court for the assertion of
his fundamental rights which have been mentioned in the Presidential Order,
even if such rights are contravened either by the Legislature or by the
Executive. To permit a challenge in a court of law to an order of detention,
which is an executive action, on the ground that the order violates a
fundamental right mentioned in the Presidential Order, is to permit the
detenu to enforce a fundamental right during emergency in a manner plainly

25-06-2021 (Page 203 of 305) www.manupatra.com SOAS Library Library

contrary to Article 359(1). The language of that Article, it is admitted on all
hands, is clear and unambiguous.

439. The constitutional consequences of a Proclamation of emergency are

grave and far-reaching. Legislatures can, during emergencies, make laws in
violation of the seven freedom guaranteed by Article 19; the President has
the power to suspend the right to move for the enforcement of all or any of
the fundamental rights mentioned in the order issued under Article 359(1);
the Executive power of the Union extends during emergencies to giving
directions to any State or to the manner in which the executive power
thereof is to be exercised. This particular power conferred on the Union
Executive is in total violation of the provisions of Article 162 of the
Constitution and indeed of the federal structure which is one of the principal
features of our Constitution; if any State Executive fails to comply with the
directions given by the Union Executive under Article 353(a), the
"President's rule" can be imposed on that State under Article 356, in which
event the Parliament is entitled under Article 357(1) to confer on the
President the power of the Legislature of that State to make laws. The
Parliament can even authorize the President to delegate such legislative
power to any other authority. The democratic structure of the Constitution
stands severely eroded in such a situation. Finally, Parliament acquires
during emergencies the power to make laws on matters which are
numerated in the State List. If consequences so fundamentally subversive of
the basic federal structure of the Constitution can ensue during
emergencies, it is not as revolting as may be appear at first sight that even
if the Executive does not obey the mandate of the Legislature, the citizen is
powerless to move any court for the protection of his fundamental rights, if
these rights are mentioned in the Presidential Order.

440. A facet of the same argument was presented on behalf of the

respondents with even greater force. It was urged that Article 359(1) may
remove fetters imposed by Part III but it cannot ever remove the fetters
arising from the principle of rule of law or from the principle of the limited
power of the Executive under a system of checks and balances based on
separation of powers. The obligation cast on the Executive to act in
accordance with law does not, according to the respondents, arise from any
particular Article of the Constitution but it arises from the inherent
compulsion of the rule of law which is a central basic feature of our
constitutional system. The suspension of the right to enforce Article 21
cannot automatically entail the suspension of the rule of law because, even
during an emergency the argument proceeds, the rule of law is not and
cannot be suspended. The Executive has a limited authority under the

25-06-2021 (Page 204 of 305) www.manupatra.com SOAS Library Library

Indian Constitution and it can act within the residual area as it pleases, so
long as it does not act to the prejudice of the citizen. It is always incumbent
on the Executive to justify its action on the basis of law and this, according
to the respondents, is the principle of legality or the rule of law.

441. The respondents' argument that all executive action which operates to
the prejudice of a person must have the authority of law to support it is
indisputably valid in normal situations. In the absence of a Proclamation of
emergency and in the absence of a Presidential Order under Article 359(1)
of the kind that we have in the instant case, the Executive is under an
obligation to obey the law and if it acts to the prejudice of anyone by
disobeying the law, its action is liable to be challenged by an appropriate
writ. That the rule of law must prevail in normal times is the rule of law
under the Indian Constitution. But it is necessary to clear a misconception.
Even though the compulsion to obey the law is a compulsion of normal
times, Article 358 takes in those cases only in which the executive purports
to act under the authority of a law. It does not envisage that the executive
can-act without the apparent authority of law. In other words, Article 358
enables the Legislature to make laws in violation of Article 19 and the
Executive to act under those laws, despite the fact that the laws constitute
an infringement of the fundamental rights conferred by Article 19.

442. The argument of the respondents that the Presidential Order under
Article 359(1) cannot ever suspend the rule of law requires a close
examination, particularly in view of some of the decisions of this Court
which apparently support that contention.

443. In State of Madhya Pradesh and Anr. v. Thakur Bharat Singh

MANU/SC/0043/1967 : [1967]2SCR454 the State Government, on April 24,
1963 made an order under Section 3 of the Madhya Pradesh Public Security
Act, 1959 directing that the respondent shall not be in any place in Raipur
District, that he shall immediately proceed to and reside in a named town
and that he shall report daily to a police station in that town. The order was
challenged by the respondent by a writ petition under Articles 226 and 227
of the Constitution on the ground that Section 3 infringed the fundamental
rights guaranteed by Article 19(1)(d) and (e) of the Constitution. The
respondent succeeded in the High Court which declared a part of the order
invalid on the ground that Section 3(1)(b) of the Act was violative of Article
19(1)(d) of the Constitution. In appeal, it was contended in this Court on
behalf of the State Government that so long as the state of emergency
declared on October 20, 1962 was in force, the respondent could not move
the High Court by a petition under Article 226 on the plea that by the

25-06-2021 (Page 205 of 305) www.manupatra.com SOAS Library Library

impugned order his fundamental right guaranteed under Article 19(1)(d)
was infringed. It was further contended on behalf of the State Government
that even if Section 3(1)(b) was held to be void, Article 358 protected
legislative as well as executive action taken after the Proclamation of
emergency and therefore the order passed by the Government after the
emergency was declared could not be challenged as infringing Article 19.
Describing this latter argument as involving "a grave fallacy", a Constitution
Bench of this Court dismissed the State's appeal holding, that for acts done
to the prejudice of the respondent after the declaration of emergency under
Article 352, no immunity from the process of the Court could be claimed
under Article 358 of the Constitution since the order was not supported by
any valid legislation. Shah J. who spoke on behalf of the Bench observed in
his judgment that all executive action which operates to the prejudice of any
person must have the authority of law to support it and that the terms of
Article 358 do not detract from that rule. Article 358, according, to this
Court, did not purport to invest the State with arbitrary authority to take
action to the prejudice of citizens and others but it merely provides that so
long as the Proclamation of emergency subsists, laws may be enacted and
executive action may be taken in pursuance of lawful authority, which if the
provisions of Article 19 were operative would have been invalid.

444. It is important to bear in mind that Bharat Singh's case was concerned
with a pre-emergency law, though the impugned order was passed
thereunder during the operation of emergency. The law having been passed
in 1959, which was before the declaration of emergency, it had to comply
with Article 19 and if it did not, it was void to the extent of the
inconsistency. Since the law was held to be violative of Article 19 it could not
claim any protection under Article 358. That Article lifts restrictions on
legislative power "while a proclamation of emergency is in operation," that is
to say, it enables laws to be made during the emergency, ever if they
conflict with Article 19. The executive is then free to act under those laws.
But, if the law is void for the reason that having been made prior to the
emergency it violates Article 19, or if there is no law at all under the
purported authority of which the executive has acted, the executive action is
not protected by Article 358. Bharat Singh's case is distinguishable for the
additional reason that it was only concerned with the effect of Article 358
and no question arose therein with regard to any executive action infringing
a fundamental right mentioned in a Presidential Order issued under Article
359(1). I have already indicated the vital difference between Article 358 and
Article 359(1). The latter bars the enforcement of any fundamental right
mentioned in the Presidential Order, thereby rendering it incompetent for
any person to complain of its violation, whether the violation is by the

25-06-2021 (Page 206 of 305) www.manupatra.com SOAS Library Library

Legislature or by the Executive. In other words, Article 359(1) bars the
remedy by depriving an aggrieved person of his locus to complain of the
violation of such of his fundamental rights as are mentioned in the
Presidential Order.

445. Respondents also relied in support of the same submission on the

decisions of this Court in District Collector of Hyderabad and Ors. v. M/s.
Ibrahim & Co. etc. MANU/SC/0070/1970 : [1970]3SCR498 Bennett Coleman
& Co. and Ors. v. Union of India and Ors. MANU/SC/0038/1972 :
[1973]2SCR757 and Shree Meenakshi Mills Ltd. v. Union of India [1974] 7
S. C. R. 398.. These decisions are founded on the same principle as Rharat
Singh's case and are distinguishable for the same reason. In Ibrahim's case,
the existing licences of recognised dealers in sugar were cancelled by the
State Government and a monopoly licence was given to a Cooperative
Stores thereby preventing the dealers by a mere executive order from
carrying on their business. A question arose in the appeal whether the order
of the State Government cancelling the licences of the dealers was protected
under Articles 358 and 359 of the Constitution as the President had declared
a state of emergency on October 20, 1962. This question was answered in
the negative on the ground that the executive order which was immune
from attack is only that order which the State was competent to make but
for the provisions contained in Article 19. Since the executive action of the
State Government was invalid apart from Article 19, it was not immune from
attack merely because a Proclamation of emergency was in operation. The
important point of distinction is that in Ibrahim's case, the impugned order
was not made under the authority reserved by the Defence of India
Ordinance or the rules made thereunder but was issued merely in pursuance
of the policy laid down by the Central Government in entrusting the
distribution of sugar exclusively to co-operative societies. In Bennett
Coleman Company's case the impugned Newsprint Control Policy was an
emanation of the old policy which was enunciated prior to the Proclamation
of emergency. Relying on Ibrahim's case and Bharat Singh's case, this Court
held that Article 358 does not authorise the taking of detrimental executive
action during the emergency without any legislative authority or in
purported exercise of power conferred by a pre-emergency law which was
invalid when enacted. The decision in Bennett Coleman Company's case was
followed in Meenakshi Mills' case where the executive action taken during
the emergency did not have the authority of any valid law and the impugned
orders having been made under a pre-emergency law were not immune
from attack under Article 358,

25-06-2021 (Page 207 of 305) www.manupatra.com SOAS Library Library

446. Respondents relied on a passage in the judgment of Ramaswami J.
who spoke on behalf of the Court in Chief Settlement Commissioner,
Rehabilitation Devartment, Punjab and Ors. etc. v. Om Parkash and Ors. etc.
[9681] 3 S. C. R. 655 to the effect that whatever legislative power the
executive administration possesses must be derived directly from the
delegation of the legislature and exercised validly only within the limits
prescribed. The Court emphatically rejected the notion of inherent or
autonomous law-making power in the executive administration of the
country and observed that the rule of law rejects the conception of the Dual
State in which governmental action is placed in a privileged position of
immunity from control by law on the ground that such a notion is foreign to
our basic constitutional concepts. Respondents also relied upon the decision
of the Privy Council in Eshupbavi Eleko v. Officer Administering the
Government of Nieeria [1931] A. C. 662 where Lord Atkin observed that in
accordance with the British jurisprudence, 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. Our attention was repeatedly drawn to a further observation made
by Lord Aktin that it is a tradition of British justice that Judges should not
shrink from deciding such issues in the face of the executive. These
observations have been considered be this Court in Makhan Singh's case
where, speaking on behalf of the majority, Gajendragadkar J. said that the
sentiments expressed by Lord Aktin were noble and eloquent but it was
necessary to have regard to the previsions of our Constitution by which we
are governed and which has itself made emergency provisions in order to
enable the nation to meet the challenge of external aggression or internal
disturbance. The principle enunciated in Eleko's case, however lofty and
stirring, has no relevance here because we have to consider the meaning
and effect of Article 359(1) which has no parallel in the English law. Eleko's
principle is unquestionably supreme in times of peace and so is the validity
of the observations made by Ramaswami J. in Om Prakash's case. Both of
those cases were concerned with a totally different problem, the problem of
peace, not of war or internal disturbance.

447. The 'Rule of Law' argument like the 'Basic Feature' argument is
intractable. emergency provisions contained in Part XVIII of the Constitution
which are designed to protect the security of the State are as important as
any other provision of the Constitution. If the true construction and effect of
Article 359(1) is as I have stated it to be, it is impossible to hold that such a
construction violates the rule of law.

25-06-2021 (Page 208 of 305) www.manupatra.com SOAS Library Library

The rule of law, during an emergency, is as one finds it in the provisions
contained in Chapter XVIII of the Constitution. There cannot be a brooding
and omnipotent rule of law drowning in its effervescence the emergency
provisions of the Constitution.

448. The Advocate General of Gujarat had peculiar problems to voice,

arising out of the fluid and uncertain political situation in his State. He was
unable to appreciate how the Executive Government of the State could defy
a parliamentary mandate contained in the MISA, either as regards the
procedural or the substantive part of that law. Whatever may be the
requirements of emergency, he seemed to contend, the Gujarat Government
could not, save at grave peril to its existence, defy the provisions of a law
made by the Parliament. The anguish and embarrassment of the learned
Advocate General is understandable, but the short answer to his contention
is that, on the record, the Government of Gujarat has not been asked to
flout the MISA and indeed no one can dispute the right of the State
Government to ensure compliance with the laws of the land. Indeed, that is
its plain and foremost duty. The important consideration is that in the event
of State Government coming to pass an order of detention in violation of
MISA, the detenu will have no right to enforce his corresponding
fundamental right if it is mentioned in the Presidential Order. The learned
Advocate General built his argument as if, during emergencies, the
executive is under an obligation to flout the laws of the land. Article 359(1)
neither compels nor condones the breaches by the executive of the laws
made by the legislature. Such condonation is the function of an Act of
Indemnity.

449. I must now take up for consideration a very important plank of the
respondents' argument that Article 21 is not the sole repository of the right
to life and personal liberty. This argument has been presented before us
from aspects too numerous to mention and scores of instances have been
cited to buttress it. This was to some extent inevitable because quite a few
counsel argued the same point and each had his peculiar, favourite accent. I
will try to compress the arguments without, I hope, sacrificing their
thematic value.

450. The respondents' arguments may be put thus ;

(1) Article 21 is not the sole repository of the right to personal

liberty because that right can be found in Articles 19(1) (b), 20 and
22 also, in view of the decision in the Bank Nationalisation case
MANU/SC/0011/1970 : [1970]3SCR530 , which overruled Gopalan's

25-06-2021 (Page 209 of 305) www.manupatra.com SOAS Library Library

 case MANU/SC/0012/1950 : 1950CriLJ1383 , these rights are not
mutually exclusive and therefore the suspension of the right to
enforce Article 21 cannot affect the right conferred by Articles 19,
20 and 22.

(2) Article 21 is not the sole repository of the right to personal

liberty because, (i) an accused convicted of murder and sentenced
to death can assert his right to life by challenging the conviction
and sentence in appeal, in spite of the Presidential Order under
Article 359(1); (ii) if a person is wrongfully confined, he can ask for
hi-; personal liberty by prosecuting the offender in spite of the
Presidential Order; and (iii) if a money-decree is passed against the
Government., the decree can be enforced even if the right to
enforce the right to property is suspended by the Presidential Order.

(3) Prior to the enactment of the Constitution statutory, contractual

and common law rights were in existence and those lights can be
taken away only by the Legislature. They cannot be affected by the
Presidential Order. The pre Constitution common law and statutory
rights to personal liberty continued in force by reason of Article 372
of the Constitution, since those rights were not repugnant to any
provision of the Constitution. If the fundamental right to personal
liberty is suspended by the Presidential Order, the pre Constitution
laws will begin to operate by reason of the theory of eclipse. There
is no authority for the proposition that on the conferment of
fundamental rights by the Constitution, the corresponding pre-
existing rights merged in the fundamental rights and that with the
suspension of fundamental rights, the corresponding pre-existing
rights also got suspended. Article 21 is different in content from the
common law right to personal liberty which was available against
private individuals also, Since Article 21 merely elevates the right of
personal liberty to the status of a fundamental right, the pre
Constitution rights cannot be suspended by the Presidential Order.
The object of Article 21 is to give and not to take. In fact, the very
language of that Article shows that, instead of conferring the right
to personal liberty, it assumed its existence in the first place and
then proceeded by a negative provision to prohibit its deprivation.
Examples of such pre- Constitution rights are:

(i) rights available under the Indian Penal Code and the
Criminal Procedure Code; (ii) rights available under the law
of torts especially the right to sue for damages for false

25-06-2021 (Page 210 of 305) www.manupatra.com SOAS Library Library

 imprisonment; and (iii) the remedy of habeas corpus
available under Section 491, Criminal Procedure Code,
since the year 1923.

(4) Non-fundamental constitutional rights like those arising under

Articles 256, 265 and 361(3) or natural rights or contractual rights
or the statutory rights to personal liberty are not affected by the
Presidential Order. Statutory rights can only be taken away in terms
of the statute and not by an executive fiat. By reason of Article 256.
the executive power of every State must ensure compliance with
the laws made by the Parliament. The executive power of the States
must therefore comply with Section 56 and 57 of the Criminal
Procedure Code and a person aggrieved by the violation of those
provisions can enforce his statutory right to personal liberty in spite
of the Presidential Order. By Article 265 no tax can be levied or
collected except by authority of law. A person affected by the
violation of this provision can enforce his right to property even if
Article 19 is suspended. If a process happens to be issued against
the Governor of a State in contravention of Article 361(3), the
Governor can exercise his right to personal liberty despite the
Presidential Order under Article 359(1). Similarly, in cases not
covered by Section 16A of the MISA, if the Advisory Board opines
that the detention is unjustified, the detenu can compel the
Government to accept that opinion, in spite of the Presidential
Order.

(5) Even after the passing of a Presidential Order, Parliament may

create new rights to personal liberty and such rights can be en
forced in spite of the Presidential Order.

(6) civil liberty or personal liberty is not a conglomeration of

positive rights. It operates in an area of free action and no law can
possibly curtail it.

(7) If a law affecting the fundamental right to personal liberty is

void for want of legislative competence, it can be challenged in spite
of the Presidential Order.

(8) The suspension of the right to enforce personal liberty cannot

confer a licence on executive officers to commit offences against
the law of the land, and if they do so, they can be brought to book
in spite of the Presidential Order.

25-06-2021 (Page 211 of 305) www.manupatra.com SOAS Library Library

451. I look at the question posed by the respondents from a different angle.
The emergency provisions of the Constitution are designed to protect the
Security of the State and in order to achieve that purpose, various powers
have been conferred on the Parliament and the President by Chapter XVIII
of the Constitution. One of such powers is to be found in Article 359(1)
under which the President, during the operation of the emergency, can issue
an order suspending the right to move any court for the enforcement of all
or any of the fundamental rights conferred by Part III. Proceedings
commenced prior to the issuance of such an order, including proceedings
taken prior to the declaration of the emergency itself, automatically remain
suspended during the emergency or for such shorter period as the President
may in his order specify. The object of empowering the President to issue an
order under Article 359(1) suspending the enforcement of the right to
personal liberty conferred by Part III of the Constitution cannot be to save
all other rights to personal liberty except the one conferred by Part III,
which to me seems totally devoid of meaning and purpose. There is nothing
peculiar in the content of the right to personal liberty conferred by Part III
so that the Constitution should provide only for the suspension of the right
to enforce that particular kind of right, leaving all other rights to personal
liberty intact and untouched. In limes of emergencies the executive,
unquestionably though unfortunately, is constrained to take various forms of
action in derogation of the rights of citizens and others, including the
cherished right to personal liberty. The Constitution aims at protecting the
executive, during the operation of emergency, from attacks on the action
taken by it in violation of the rights of individuals. Accordingly, in so far as
the right to personal liberty, for example, is concerned one of the objects of
the emergency provisions is to ensure that no proceeding will be taken or
continued to enforce that right against the executive during the operation of
the emergency. The executive is then left free to devote its undiluted
attention to meeting the threat to the security of the State. This purpose
cannot ever be achieved by interpreting Article 359(1) to mean that every
right to personal liberty shall be enforceable and every proceeding involving
the enforcement of such right shall continue during the emergency, except
to the extent to which the right is conferred by Part III of the Constitution.
The existence of the right to personal liberty in the pre Constitution period
was surely known to the makers of the Constitution. The assumption
underlying the respondent's argument is that in spite of that knowledge, the
Constituent Assembly decided that all those rights will reign supreme in
their pristine glory even during the emergency and what will remain in
abeyance is only the enforcement of the right to personal liberty conferred
by Part III.

25-06-2021 (Page 212 of 305) www.manupatra.com SOAS Library Library

The right to personal liberty has no hallmark and therefore when the right is
put in action it is impossible to identify whether the right is one given by the
Constitution or is one which existed in the pre Constitution era. If the
argument of the respondents is correct, no action to enforce the right to
personal liberty can at all fall within the mischief of the presidential Order
even if it mentions Articles 19, 20, 21 and 22 because, every preliminary
objection by the Government to a petition to enforce the right to personal
liberty can be effectively answered by contending that what is being
enforced is either the natural right to personal liberty or generally, the pre
Constitution right to personal liberty. The error of the respondents'
argument lies in its assumption, and in regard to the argument of some of
the counsel in the major articulate premise, that the qualitative content of
the non-constitutional or pre-constitutional right to personal liberty is
different from the content of the right to personal liberty conferred by Part
III of the Constitution.
The right to personal liberty is the right of the individual to personal
freedom, nothing more and nothing less. That right along with certain other
rights was elevated to the status of a fundamental right in order that it may
not be tinkered with and in order that a mere majority should not be able to
trample over it. Article 359(1) enables the President to suspend the
enforcement even of those rights which were sanctified by being lifted out of
the common morass of human rights. If the enforcement of the fundamental
rights can be suspended during an emergency, it is hard to accept that the
right to enforce non-fundamental rights relating to the same subject matter
should remain alive.

452. Article 359(1) contains three important Clauses : (1) The Proclamation
of emergency must be in operation at the time when the President issues his
order; (2) The President must issue an order declaring the suspension of the
right to move any court; and (3) The power of the President to declare such
suspension can extend to such rights only as are conferred by Part III. If
these three conditions are satisfied, no person can move any court for the
enforcement of such of the rights conferred by Part III as are mentioned in
the Presidential Order.

453. The first and foremost question to ask when a proceeding is filed to
enforce a right as against the Government while a Proclamation of
emergency is in operation is, whether the right is mentioned in the
Presidential Order and whether it is the Kind of right conferred by Part III.
Article 21, for example, confers the right to life and personal liberty. The
power of the President therefore extends under Article 359(1) to the
suspension of the right to move any court for the enforcement of the right

25-06-2021 (Page 213 of 305) www.manupatra.com SOAS Library Library

to life and personal liberty. The President cannot suspend the enforcement
of any right unless that right is included in Part III which confers
fundamental rights. The President, in my opinion, would be acting within the
strict bounds of his constitutional power if, instead of declaring the
suspension of the right to enforce the right conferred by Article 21 he were
to declare that "the right not to be deprived of life and personal liberty
except according to procedure established by law" shall remain suspend
during the emergency.

454. Article 359(1) does not really contemplate that while declaring the
suspension of the right to move any court, the President must or should
specify the Article or the Articles of the Constitution the enforcement of
rights conferred by which shall be suspended. What Article 359(1)
contemplates is that the President can declare the suspension of the right to
move any court for the enforcement of the rights mentioned in Part III. The
words "conferred by Part III" which occur in Article 359(1) are not intended
to exclude or except from the purview of the Presidential Order, rights of the
same variety or kind as are mentioned in Part III but which were in
existence prior to the Constitution or can be said to be in existence in the
post Constitution era, apart from the Constitution. The emphasis of the
Article is not the right to suspend the enforcement of the kind of rights
mentioned in Part III and not on the fact that those rights are conferred by
Part III. To put it differently, the words "conferred by Part III" are used only
in order to identify the particular rights the enforcement of which can be
suspended by the President and not in order to impose a limitation on the
power of the President so as to put those rights which exist or which existed
apart from the Constitution, beyond the reach of the Presidential Order. The
respondents by their petitions are enforcing their right to personal liberty
and that right is a right conferred by or mentioned in Part 111 of the
Constitution. As 1 have said above, if instead of saying that the right to
enforce the right conferred by Article 21 shall be suspended the President
were to say that the right not to be deprived of life or personal liberty
except according to procedure established by law will remain suspended, no
argument of the kind made before us could reasonably have been made.
The true effect of the Presidential Order, though worded in the way it is, is
the same as it would have been, had it been worded in the manner have
indicated.

455. It therefore does not make any difference whether any right to
personal liberty was in existence prior to the enactment of the Constitution,
either by way of a natural right, statutory right, common law right or a right
available under the law of torts. Whatever may be the source of the right

25-06-2021 (Page 214 of 305) www.manupatra.com SOAS Library Library

and whatever may be its justification, the right in essence and substance is
the right to personal liberty. That right having been included in Part III, its
enforcement will stand suspended if it is mentioned in the Presidential Order
issued under Article 359(1).

456. The view which I have taken above as regards the scope and meaning
of Article 359(1) affords in my opinion a complete answer to the contention
of the respondents that since Article 21 is not the sole repository of the right
to personal liberty, the suspension of the right to enforce the right conferred
by that Article cannot affect the right to enforce the right of personal liberty
which existed apart from that Article. I have held that on a true
interpretation of the terms of the Presidential Order read with Article
359(1), what is suspended is the right to move for the enforcement of the
right to personal liberty whether that right is conferred by Constitution or
exists apart from and independently of it. Otherwise, the Constitution has
only done much ado about nothing.

457. All the same I would like, briefly, to deal with the argument of the
respondents on its own merit, particularly the illustrations cited in support of
that argument.

458. It is true that in view of the decision in the Bank Nationalisation case
MANU/SC/0011/1970 : [1970]3SCR530 , the right conferred by Articles 21
and 19 cannot be treated as mutually exclusive. But the suspension of the
right to enforce the right of personal liberty means the suspension of that
right wherever it is found unless its content is totally different as from one
Article to another. The "right conferred by Article 21" is only a description of
the right of personal liberty in order to facilitate its exact identification and
such a description cannot limit the operation of the Presidential Order to
those cases only where the^ right to personal liberty is claimed under
Article 21.

459. The circumstance that the pre Constitution rights continued in force
after the enactment of the Constitution in view of Article 372 does not make
any difference to this position because, even assuming that certain rights to
personal liberty existed before the Constitution and continued thereafter as
they were not repugnant to any provision of the Constitution, all rights to
personal liberty having the same content as the right conferred by Article 21
would fall within the mischief of the Presidential Order.

460. The theory of 'eclipse" has no application to such cases because that
theory applies only when a pre Constitution law becomes devoid of legal

25-06-2021 (Page 215 of 305) www.manupatra.com SOAS Library Library

force on the enactment of the Constitution by reason of its repugnancy to
any provision of the Constitution. Such laws are not void but they are under
an eclipse so long as the repugnancy lasts. When the repugnancy is
removed, the eclipse also is removed and the law becomes valid.

461. As regards the doctrine of "merger" it is unnecessary to go to the

length of saying that every prior right to personal liberty merged in the right
to personal liberty conferred by Part III. Whether it merged or not, it cannot
survive the declaration of suspension if the true effect of the Presidential
Order is the suspension of the right to enforce all and every right to
personal liberty. In that view, it would also make no difference whether the
right to personal liberty arises from a statute or from a contract or from a
constitutional provision contained in some Part other than Part III.

462. As regards the illustrations, it is neither proper nor possible to take

each one of them separately and answer them. Hypothetical illustrations
cannot establish a point and practical difficulties have to be solved as and
when they arise. But some of the more important illustrations taken by the
respondents' counsel seem to me to have a simple answer. For example,
when an accused challenges his conviction for murder and the sentence of
death imposed on him for that offence, his remedy by way of an appeal is
not barred by the Presidential Order because he is only trying to get rid of a
judgment which holds him guilty of murder. It is not he who moved the
court for his personal liberty but it is the prosecution which dragged him to
the court to prove the charge of murder against him. The accused only
defends the charge of criminality whether it is in the trial court or m a
higher court. Similarly, if a person is wrongfully confined, the prosecution of
the offender is not intended or calculated to secure the personal liberty of
the victim. The court may in proper cases pass an order releasing the
complainant from wrongful confinement but the true object of the
prosecution is to punish the person who has committed an offence against
the penal law of the land. As regards decretal rights against the
Government, what the decree-holder enforces in execution is not his right to
property. The original cause of action merges in the decree and therefore
what is put into execution is the rights arising under the decree. The
illustration regarding the issuance of a process against the Governor of a
State need not be pursued seriously because such an event is hardly ever
likely to happen and if it does, the gubernatorial rights may possibly
withstand the Presidential Older under Article 359(1). As regards the
flouting of the opinion of the Advisory Board by the Government, a writ of
mandamus compelling the Government to obey the mandate of the law may
perhaps stand on a different footing as the very nature of such a proceeding

25-06-2021 (Page 216 of 305) www.manupatra.com SOAS Library Library

is basically different. Lastly, it is unrealistic to believe that alter the passing
of the Presidential Order suspending the existing constitutional rights,
Parliament would create new rights to personal liberty so as to nullify the
effect of the Presidential Order. The easier way for the Parliament would be
to disapprove of the Proclamation of emergency when it is placed before it
under Article 352(2) (b) of the Constitution or to disapprove of the
Presidential Order issued under Article 359(1) when it is placed before it
under Article 359(3) of the Constitution. But as I have said earlier, it is
difficult to furnish a clear and cogent answer to hypothetical illustrations. In
the absence of necessary facts one can only make an ad hoc answer, as I
have attempted to do regarding the possible issuance of a process against
the Governor of a State. Actually, Article 361(3) speaks of a "Process" for
the arrest or imprisonment of a Governor issuing from any court.
Fundamental rights can be exercised as against judicial orders but the
circumstances in which such a process may come to be issued, if at all, may
conceivably affect the decision of the question whether a presidential Order
issued under Article 359(1) can bar the remedy of an aggrieved Governor.

463. In so far as the illustrative cases go, I would like to add that Article
256 which was chosen by the respondents as the basis of an illustration
does not seem to confer any right on any individual. That Article appears in
Part XI which deals with relations between the Union and the States. A
failure to comply with Article 256 may attract serious consequences but no
court is likely to entertain a grienvance at the instance of the private party
that Article 256 has not been complied with by a State Government. As
regards the claim to personal liberty founded on a challenge to an order on
the ground of excessive delegation, I prefer to express no firm opinion
though the greater probability is that such a challenge may fail in face of a
Presidential Order of the kind which has been passed in the instant case.

464. I have held above that the existence of common law rights prior to the
Constitution will not curtail the operation of the Presidential Order by
excepting those rights from the purview of the Order. I may add that the
decision of this Court in Dhirubha Devisingh Gohil v. The State of Bombay
MANU/SC/0032/1954 : [1955]1SCR691 is an authority for the proposition
that if any pre Constitution right has been elevated as a fundamental right
by its incorporation in Part III, the pre-existing right and the fundamental
right are to be considered as having been grouped together as fundamental
rights "conferred" by the Constitution. The decision in Makhan Singh v. State
of Punjab MANU/SC/0039/1963 : 1964CriLJ217 also shows that once right
to obtain a direction in the nature of habeas corpus became in 1923 a
statutory right to a remedy after the enactment of Section 491 of the CrPC,

25-06-2021 (Page 217 of 305) www.manupatra.com SOAS Library Library

it was not open to any party to ask for a writ of habeas corpus as a matter,
of common law.

465. It was contended for the respondents that the High Court have
jurisdiction under Article 226 to issue writs and directions not only for the
enforcement of fundamental rights but "for any other purpose" and since by
their petitions they had really asserted their non fundamental rights, the
High Courts had the jurisdiction to issue appropriate writs or directions
upholding those rights in spite of the Presidential Order. This argument
cannot be accepted because the entire claim of the respondents is that the
order of detention are in violation of the MISA, which in substance means
that the respondents have been deprived of their personal liberty in violation
of Article 21 of the Constitution. By that Article, no person can be deprived
of his life or personal liberty except according to procedure established by
law. The grievance of the respondents is that they have been deprived of
their personal liberty in violation of the procedure established or prescribed
by the MISA. In substance therefore they are complaining of the violation of
a fundamental right, which it is not open to them to do in view of the
Presidential Order by which the right to move any court for the enforcement
of the right conferred by Article 21 has been suspended.

466. This judgment, long as it is, will be incomplete without at least a brief
discussion of some of the important decisions of this Court which were
referred to during the course of arguments time and again. Before doing so,
a prefatory observation seems called for.

The Earl of Halsbury L. C. said in Quinn v. Leathem [1901] A. C. 495, 506

that the generality of the expressions which may be found in a judgment are
not intended to be expositions of the whole law but are governed and
qualified by the particular facts of the case in which such expressions are to
be found. this Court in the State of Orissa v. Sudhansu Sekhar Misra and
Ors. MANU/SC/0047/1967 : (1970)ILLJ662SC uttered the caution that it is
not a profitable task to extract a sentence here and there from a judgment
and to build upon it because the essence of the decision is its ratio and not
every observation found therein.
Counsel have not done any such shearing but I thought I might being the
study of cases with a self-admonition.

467. A decision of this Court on which the greatest reliance was placed by
the respondents is Makhan Singh v. State of Punjab MANU/SC/0039/1963 :
1964CriLJ217 . The appellants therein were detained under Rule 30(1)(b) of
the Defence of India Rules made by the Central Government under Section

25-06-2021 (Page 218 of 305) www.manupatra.com SOAS Library Library

3 of the Defence of India Ordinance, 1962. They applied for their release to
the Punjab and Bombay High Court under Section 491(1)(b) of the CrPC,
their contention being that certain Section of the Defence of India Act and
Rule 30(1) (b) of the Defence of India Rules were unconstitutional since
they contravened their fundamental rights under Articles 14, 21 and 22(4)
(5) and (7) of the Constitution. The High Court held that in view of the
Presidential Order which was issued on November 3, 1962 under Article
359(1) of the Constitution, the petitions of habeas corpus filed by the
appellants were barred. Being aggrieved by the orders dismissing their
petitions, the detenus filed appeals in this Court which were heard by a
Constitution Bench consisting of 7 Judges. The judgment of the majority was
delivered by Ganjendragadkar J. Subba Rao J. gave a dissenting judgment.

468. Both the majority and the minority judgments agree that the
Presidential Order would take away the right to move the Supreme Court
under Article 32 and the High Court under Article 226 for the enforcement of
the rights mentioned in the Order. But while the majority took the view that
the petition under Section 491 of the Criminal Procedure Code was also
barred, Subha Rao J. held that the petitioners' right to ask for relief by filing
an application under Section 491 was not affected by the Presidential Order.
This difference in the view of the majority and the minority is now of no
consequence as Section 491 has ceased to be on the Statute Book after
April 1, 1974 when the new CrPC came into force.

469. The conclusion of the Court in Makhan Singh's case may be summed
up thus:

1. Article 359 is reasonably capable of only one construction as its

language is clear and unambiguous.

2. The suspension of Article 19 contemplated by Article 358

removes during the pendency of the emergency the fetters created
on the legislative and executive powers by Article 19 and if the
legislatures make laws or the executive commits acts which are
inconsistent with the rights guaranteed by Article 19, their validity
is not open to challenge either during the continuance of the
emergency or even thereafter.

3. 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 Article 19

25-06-2021 (Page 219 of 305) www.manupatra.com SOAS Library Library

 because as soon as the emergency is lifted, Article 19 which was
suspended during emergency is automatically revived and begins to
operate.

4. Article 359, on the other hand, does not purport expressly to

suspend any of the fundamental rights. What the Presidential Order
purports to do by virtue of the power conferred of the President by
Article 359(1) is to bar the remedy of the citizens to move any
court for the enforcement of the specified rights.

5. The Presidential Order cannot widen the authority of the

legislatures or the executive; it merely suspends the rights to move
any court to claim a relief on the ground that the rights conferred
by Part III have been contravened if the said right are specified in
the 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.

6. The words "the right to move any court" which occur in Article
359(1) refer to the right to move any court of competent
jurisdiction including both the Supreme Court and the High Court.

7. 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 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 Article 359(1) and would, therefore, be hit by the
Presidential Order issued under the said Article.

8. The right to ask for a writ in the nature of habeas corpus which
could once have been treated as matter of Common Law has
become a statutory right after 1923, and after Section 491 was
introduced in the Cr. P. C, it was not open to any citizen in India to

25-06-2021 (Page 220 of 305) www.manupatra.com SOAS Library Library

 claim the writ of habeas corpus on grounds recognised by Common
Law apart from the provision of Section 491(1)(b) itself.

9. Whether or not the proceedings taken under Section 491(1) (b)

fall within the purview of the Presidential Order, must depend upon
the construction of Article 359(1) and the Order, and in dealing with
this point, one must look at the substance of the matter and not its
form.

10. 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 Article 226(1) of Article 32(1) of the
Constitution, or he may take a proceeding under Section 491(l)(b)
of the Code. But 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. therefore the prohibition contained in Article 359(1) and
the Presidential Order will apply as much to proceedings under
Section 491(1)(b) as to those under Article 226(1) & Article 32(1).

11. If the detenu is prohibited from asking for and order of release
on account of the Presidential Order, it would not be open to him to
claim a mere declaration either under Section 491 or under Articles
32 or 226 that the detention is unconstitutional or void.

12. The right specified in Article 359(1) includes the relevant right,
whether it is statutory, constitutional or constitutionally guaranteed.

470. After recording these conclusions the majority judgment proceed to

consider the question as to Which are the pleas which are op to a person to
take in challenging the legality or the propriety of 1 detention, either under
Section 491 (1)(b) or under Article 226(1). T conclusions of the Court on
this question are as follows:

(a) 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 Article 359(1) and consequently outside the Presidential
Order itself." (Emphasis supplied) Accordingly if a detenu is

25-06-2021 (Page 221 of 305) www.manupatra.com SOAS Library Library

 detained in violation of the mandatory provisions of the Act it would
be open to him to contend that his detention is illegal. "Such a plea
is outside Article 359(1) and the right of the detenu to move for his
release on such a ground cannot be affected by the Presidential
Order."

(b) The exercise of a power malafide is wholly outside the scope of

the Act conferring the power and can always be successfully
challenged.

(c) It is only in regard to that class of cases falling under Section

491(1) (b) where the legality of the detention is challenged on
grounds which fall under Article 359(1) and the Presidential Order
that the bar would operate. In all other cases falling under Section
491(1) the bar would be inapplicable and proceedings taken on
behalf of the detenu will have to be tried in accordance with law.

(d) 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, in valid, 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 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.
(The Court, however, rejected the contention that the impugned
provisions of the Act suffered from the vice of excessive
delegation.)

471. No judgment can be read as if it is a statute. Though the judgment of

the majority contain the conclusions set out in (a) to (d) above, I see no
doubt that these conclusions owe their justification to the peculiar wording
of the Presidential Order which was issued in that case. The Order dated
November 3, 1962, which was the subject matter of Makhan Singh's case,
has been set out at the beginning of this judgment. That order suspends the
right of a person to enforce the rights conferred by Articles 14, 21 and 22 "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".
The Presidential Order dated June 27, 1975 with which we are concerned in
the instant case does not contain any clause similar to the one extracted
above from the order dated November 3, 1962. The inclusion of that clause
in the earlier Order has a significant impact on the question under
consideration because, under the earlier Presidential Order the right to move

25-06-2021 (Page 222 of 305) www.manupatra.com SOAS Library Library

the court was taken away only if a person was deprived of his rights under
the Defence of India Ordinance or under any rule or order made under the
Ordinance. A petition for habeas corpus filed during the operation of the
Presidential Order dated November 3, 1962 was not barred at the threshold
because the detenu was entitled to satisfy the court that though his
detention purported to be under the Defence of India Ordinance or the Rules
it was in fact not so. The detenu could establish this by satisfying the court
that the detaining authority had no power to detain him, which could be
shown by pointing out that the pre-conditions of the power to detain were
not fulfilled. It was also open to the petitioner to establish that the order
was vitiated by mala fides because a mala fide order has no existence in the
eye of law and mala fides would take the order out of the statute.

472. The same state of affairs continued under the two subsequent
Presidential Orders dated November 16, 1974 and December 23, 1974. All
the three orders were conditional and were dependent for their application
on the fulfilment of the condition that the person concerned was deprived of
his rights under the Defence of India Ordinance or any rule or order made
under it. The Presidential Order of June 27, 1975 makes a conscious and
deliberate departure from the three earlier orders, the object obviously
being to deprive the detenu of the argument that he has been detained
under an order only purports to have been passed under a particular Act but
is in fact in derogation thereof, the terms of the Act having not been
complied with. The Order of June 27, 1975 is not subject to any condition-
precedent for its application and, therefore, there is no question of the
detenu satisfying the court that any pre-condition of the power of detention
has not fulfilled. Some of the observations in Makhan Singh case may
appear to support the argument that certain pleas which are referred to
therein are outside the scope of Article 359(1) itself. With great respect,
those observations really mean that the pleas are outside the Presidential
Order. Article 359(1) is only an enabling provision and the validity of a plea
cannot be tested with reference to that Article. The right to move a court for
the enforcement of the rights conferred by Part III is not taken away by
Article 359(1). It is the Presidential Order passed in pursuance of the
powers conferred by that Article by which such a consequence can be
brought about.

473. It would be useful in this connection to refer to the decision of this

Court in Dr. Ram Manohar Lohia v. State of Bihar and Ors.
MANU/SC/0054/1965 : 1966CriLJ608 . The appellant therein was also
detained under Rule 30(1) (b) of the Defence of India Rules, 1962, and he
moved this Court under Article 32 of the Constitution for his release. The

25-06-2021 (Page 223 of 305) www.manupatra.com SOAS Library Library

petition was argued on the basis that it was filed for the enforcement of the
right to personal liberty under Articles 21 and 22 of the Constitution. A
preliminary objection was raised on behalf of the Government that the
petition was barred by reason of the Presidential Order dated November 3,
1962, the same as in Makhan Singh's case (supra) Sarkar J., who shared
the majority view repelled the preliminary objection by saying that the
petition could have been dismissed at the threshold if the Order of
November 3, 1962 were to take away all rights to personal liberty under
Articles 21 and 22. According to the learned Judge, the particular
Presidential Order did not do so in that, it was a conditional order which
deprived a person of his right to move a court for the enforcement of a right
to personal liberty only if he was deprived of it by the Defence of India Act
or any rule or order made under it. "If he has not been so deprived, the
Order does not take away his right to move a court." This shows that if the
first Presidential Order was unconditional like the Order in the instant case,
Dr. Lohia's petition would have been rejected by this Court at the threshold.
The judgment of Hidaya-tullah J., who on behalf of himself and Bachawat J.
concurred with the view of Sarkar J., also shows that the conditional
Presidential Order left an area of inquiry open as to whether the action was
taken by a competent authority and was in accordance with the Defence of
India Act and the rules made thereunder.

474. Yet another case arose under Rule 30(1)(b) of the Defence of India
Rules, 1962 involving the interpretation of the first Presidential Order dated
November 3, 1962. That case is K. Anandan Nambkii and Anr. v. Chief
Secretary, Government of Madras and Ors. MANU/SC/0060/1965 :
1966CriLJ586 Gajendra-gadkar C.J., who delivered the judgment of the
Constitution Bench referred to Makhan Singh's case and pointed out that the
sweep of the Presidential Order dated November 3, 1962 was limited by its
last clause and, therefore, it was open to the detenu to contend that the
order of detention was contrary to the conditions prescribed in that behalf
by the Defence of India Act or the rules made thereunder.

475. In State of Maharashtra v. Prabhakar Pandurang Sangzgiri and Anr.

MANU/SC/0089/1965 : 1966CriLJ311 the respondent, who was detained
under an order passed under Section 30(1)(b) of the Defence of India Rules,
1962, sought permission from the State Government for publishing a book
which he had written while in jail. On the Government refusing the
permission, he filed a petition under Article) 226 of the Constitution for an
appropriate direction and after that petition was allowed by the High Court,
the Government of Maharashtra filed an appeal in this Court. Subba Rao J.,
who delivered the judgment of the Bench, observed while dismissing the

25-06-2021 (Page 224 of 305) www.manupatra.com SOAS Library Library

appeal that the President's Order dated November 3, 1962 was a conditional
order and, therefore, if a person was deprived of his personal liberty not
under the Act or a rule or order made thereunder but in contravention
thereof, his right to move the court in that regard would not be suspended.

476. These judgments bring out clearly the ratio of Makhan Singh's case
which arose out of the first Presidential Order dated November 3, 1962. The
Presidential Order with which we are concerned in the instant case is not
subject to the pre-condition that the detenu should have been deprived of
his rights under any particular Act and, therefore, there is no scope for the
inquiry whether the order is consistent or in conformity with any particular
Act. This important distinction has not been fully appreciated in some of the
judgments under appeal.

477. The observations contained in the majority judgment in Makhan

Singh's case that the exercise of a power mala fide is wholly outside the
scope of the Act conferring the power and can always be successfully
challenged at once raises the question whether in spite of the Presidential
Order dated June 27, 1975 it is open to the respondents to show that the
order of detention in any particular case is vitiated by mala fides. The
proposition that a mala fide order has no existence in the eye of law is not
peculiar to Makhan Singh's case but has been accepted in various decisions
of this Court, two of them being Jaichand Lall Sethia v. State of West Bengal
and Ors. MANU/SC/0051/1966 : [1966] Supp. S. C. R. 464, and Durgadas
Shirali v. Union of India and Ors. MANU/SC/0092/1965 : 1966CriLJ812 . A
mala fide exercise of power does not necessarily imply any moral turpitude
and may only mean that the statutory power is exercised for purposes other
than those for which the power was intended by law to be exercised. In view
of the fact that an unconditional Presidential Order of the present kind
affects the locus standi of the petitioner to move any court for the
enforcement of any of his fundamental rights mentioned in the Order, it
would not be open to him to show that the statutory power has been
exercised for a purpose other than the one duly appointed under the law. So
long as the statutory prescription can be seen on the face of the order to
have been complied with, no further inquiry is permissible as to whether the
order is vitiated by legal mala fides.

478. As regards mala fides in the sence of malice-in-fact, the same position
must hold good because the Presidential Order operates as a blanket ban on
any and every judicial inquisition into the validity of the detention order.
Makhan Singh's case as also Jaichand Lall Sethia's and Durgadas Shirali's
arose under the Defence of India Rules, 1962 and the relevant Presidential

25-06-2021 (Page 225 of 305) www.manupatra.com SOAS Library Library

Order which applied was the one dated November 3, 1962 which, as stated
above, was a conditional order. If in any given case an order of detention
appears on the very face of it to be actuated by an ulterior motive, the court
would have jurisdiction to set it aside because no judicial inquiry of any sort
is required to be undertaken in such a case. But short of such ex-facie
vitiation, any challenge to a detention order on the ground of actual mala
fides is also excluded under the Presidential Order dated June 27, 1975.

479. Section 16A(9) of the MISA which was introduced by the Third
Amendment Ordinance, 16 of 1975, with effect from June 29, 1975 must
make a significant difference to the question whether in spite of the
Presidential Order, it is open to a detenu to challenge his detention on the
ground of mala fides. Prior to the enactment of Section 16A(9), the
detaining authority was under an obligation by reason of Section 8(1) of the
MJSA to communicate to the detenu the grounds of detention. The only
exception was as stated in Section 8(2), that the detaining authority need
not disclose facts which it considers to be against the public interest to
disclose. Section 16A(1) provides that the provisions of Section 16A shall
have effect during the period of operation of Proclamation of emergency
issued on December 3, 1971 and on June 25, 1975 or for a period of 12
months from June 25, 1975 whichever period is the shortest. By Sub-section
(2) of Section 16A, the case of every person against whom an order of
detention was made under the MISA on or after June 25, 1975 but before
the commencement of Section 16A on June 29, 1975 is required to be
reviewed by the appropriate Government for the purpose of determining
whether the detention of such person is necessary for dealing effectively
with the emergency. If the answer be in the affirmative, the Government is
required to make a declaration to that effect. By Sub-section (3), whenever
an order of detention is made under the Act after June 29, 1975 the officer
making the order of" detention or the appropriate Government is similarly
required to consider whether the detention of the persons is necessary for
dealing effectively with the emergency. If so, a declaration is required to be
made to that effect. Sub-section (9) (a) of Section 16A provides that the
grounds on which an order of detention is made against any person in
respect of whom a declaration is made under Sub-section (2) or Sub-section
(3) of Section 16A and any information or materials on which such grounds
are based "shall be treated as confidential and shall be deemed to refer to
matters of State and to be against the public interest to disclose and save as
otherwise provided in this Act. no one shall communicate or disclose any
such grounds, information or material or any document containing such
ground, information or material." Clause (b) of Section 16A (9) provides
that no person against whom an order of detention is made under Sub-

25-06-2021 (Page 226 of 305) www.manupatra.com SOAS Library Library

section (1) of Section 3 shall be entitled to the communication or disclosure
of any such ground, information or material, as is referred to in Clause (a)
or the production to him of any document containing such ground,
information or material.

480. I will deal with the constitutionality of Section 16A(9) later but on the
assumption that it is valid, it is plain that not only is a detenu in regard to
whom the necessary declaration is made not entitled to be furnished with
the grounds of detention or the material or information on which the
grounds are based, but neither the Government nor the officer passing the
order of detention can communicate or disclose the grounds, material or
information since they are deemed to refer to matters of State and against
the public interest to disclose. In view of this cast-iron prohibition, it is
difficult to see how, at least those detenus falling within Sub-sections (2)
and (3) of Section 16A can possibly establish, even prim a facie a charge of
factual mala fides. It is the grounds of detention from which generally a plea
of mala fides is spelt out and if the court has access to the grounds, the
material and the information, it becomes possible to unravel the real motive
of detention. In the absence of these aids, a charge of factual mala fides can
only be a fling in the air and cannot hope to succeed. The observation in
Makhan Singh's case, therefore, that the exercise of a power mala fide can
always be successfully challenged would not apply to cases falling under
Sub-sections (2) and (3) of Section 16A. by reason of the provisions
contained in Sub-section (9) of that Section .

481. Turning to the constitutional validity of Section 16A(9), the contention

of the respondents is that Clause (a) of Section 16A(9) by which the
grounds of detention and the information and materials on which the
grounds are based shall be treated as confidential and shall be deemed to
refer to matters of State and to be against the public interest to disclose is
not a genuine rule of evidence but is designed to encroach upon the
jurisdiction of the High Courts under Article 226 of the Constitution and is,
therefore, void. It is urged that the amendment made by the Parliament in
the exercise of its ordinary legislative power comes into direct conflict with
the High Court's jurisdiction under Article 226 because it would be
impossible for any High Court to consider the validity of an order of
detention when a petition for habeas corpus comes before it, if the law
prohibits the disclosure of the grounds of detention and the necessary
information or materials to the High Court.

482. It is a relevant consideration for examining the charge that the true
purpose of Section 16A(9) is to encroach on the powers of the High Court

25-06-2021 (Page 227 of 305) www.manupatra.com SOAS Library Library

under Article 226, that the operation of Section 16A itself is limited to the
period during which the two proclamations of emergency dated December 3,
1971 and June 25, 1975 are in operation or for a period of 12 months from.
June 25, 1975 whichever period is the shortest. Following the proclamations
of emergency, the President has issued orders under Article 359(1). By the
order dated June 27, 1975 the vary locus standi of the detenu to enforce
any of his fundamental rights mentioned in the Presidential Order is taken
away and consequently, there is no matter of substance into which the High
Courts in the exercise of their writ jurisdiction can legitimately inquire. The
injunction contained in Section 16A(9) is from this point of view innocuous,
for it purports to create a check on a power which for all practical purposes
has but a formal existence. Section 16A(9) is in aid of the constitutional
power conferred by Article 359(1) and further effectuates the purpose of the
Presidential Order issued under that Article. If so it cannot be declared
unconstitutional.

483. Quite apart from this position, I am unable to agree that the rule
enunciated in Section 16A(9) is not a genuine rule of evidence. It is true
that grounds of detention used to be disclosed before the emergence of
Section 16A(9) but that does not mean that the grounds on which the order
of detention is based or the information or materials on which the grounds
are based are not or cannot be of a confidential nature. More likely than not,
such grounds, material and information would be of a confidential nature
relating to matters of State which would be against the public interest to
disclose. Instead of leaving each individual matter to be judged under
Section 123 of the Evidence Act by the Head of the Department concerned,
who can give or withhold the permission as he thinks fit, Parliament would
appear to have considered that since the grounds, material and information
in detention cases are of a confidential nature, it would be much more
satisfactory to provide that they shall be deemed to refer to matters of
State.

484. If Section 16A(9) is unconstitutional so would Sections 123, 124 and

162 of the Evidence Act. Section 123 gives the necessary discretion to the
Head of the Department concerned. By reason of Section 124, the High
Court cannot compel any public officer to disclose communications made to
him in official confidence if the ' officer considers that the public interest
would suffer by the disclosure. By Section 162, the High Court cannot
inspect a document if it refers to matters of State. But these provisions do
not constitute an invasion of the High Court's jurisdiction under Article 226.
The writ jurisdiction of the High Court under that Article has to be exercised
consistently with the laws made by competent legislatures within the area of

25-06-2021 (Page 228 of 305) www.manupatra.com SOAS Library Library

their legislative power. I do not think that it is open to any High Court to say
that the law may be otherwise valid but since it interferes with the High
Court's power to undertake the fullest enquiry into the matter before it, the
law becomes unconstitutional. The principles of res judicata and estoppel,
the conclusive presumptions of law and various provisions of substantive law
deny a free play to courts in the exercise of their jurisdiction. These are not
for that reason unconstitutional qua the High Court's jurisdiction under
Article 226.

485. Counsel for the respondents cited the parallel of Section 14 of the
Preventive Detention Act, 1950 which was struck down by this Court in A. K.
Gupalan v. The State MANU/SC/0012/1950 : 1950CriLJ1383 . Sub-section
(1) of that Section provided, in substance, that no court shall, except for
certain purposes, allow any statement to be made or any evidence to be
given before it of the substance of any communication of the grounds on
which a detention order was made against any person or of any
representation made by him. Sub-section (2) of Section 14 made it an
offence for any person to disclose or publish without the previous
authorization of the Government any contents or matter purporting to be
contents of any communication or representation referred to in Sub-section
(1). The right to enforce Article 22 of the Constitution was not suspended by
any Presidential Order when Gopalan's case was decided and therefore the
court was entitled to find whether that Article was emplaced with. The limits
of judicial review have to be co-extensive and commensurate with the right
of an aggrieved person to complain of the invasion of his rights. Since in
Gopalan's case, it was open to the detenu to contend that the grounds of
detention did not bear any connection with the order of detention, the Court
was entitled to examine the grounds in order to determine whether the plea
of the detenu was well-founded. As Section 14 debarred the court from
examining the material which it was entitled under the Constitution to
examine, it was declared ultra vires. (See pages 130-131, 217-218, 244,
285 and 333). In the instant case the Presidential Order deprives the
respondents of their very locus standi and therefore, Section 16A(9) cannot
be said to shut out an inquiry which is other wise within the jurisdiction of
the High Court to make.

486. Reliance was also placed by the respondents on the decision of this
Court in Mohd. Maqbool Damnoo v. State of Jammu and Kashmir
MANU/SC/0175/1972 : 1972CriLJ597 in which it was observed that the
proviso to Section 8, which was inserted by the Jammu and Kashmir
Preventive Dentention (Amendment) Act, 1967, would have been
unconstitutional if it had the same effect as Section 14 of the Preventive

25-06-2021 (Page 229 of 305) www.manupatra.com SOAS Library Library

Detention Act was found to have in Gopalan's case Damnoo's case did not
involve any question of privilege at all and in fact the relevant file was
produced by the Government for the perusal of the High Court. The case
also did not involve any question under Article 359(1) and the effect of a
provision like Section 16A(9) was not even hypothetically considered by the
Court.

487. The view of the Bombay High Court that Section 16A(9) may be read
down so as to enable the court to examine the forbidden material is
impossible to sustain. What use can a court make of material which it
cannot disclose to the detenu and how can it form a judicial opinion on
matters not disclosed to a party before it? The High Court, at the highest,
could satisfy its curiosity by tasting the forbidden fruit but its secret scrutiny
of the grounds and of the file containing the relevant information and
material cannot enter into its judicial verdict.

488. I am, therefore, of the opinion that the challenge made by the
respondents to the constitutionality of Section 16A(9) must fail.

489. Section 18 need not detain me long because it merely declares that no
person who is detained under the Act shall have any right to personal liberty
by virtue of natural law or common law, if any. The 'natural law' theory was
discarded in Kesavananda Bharati's case MANU/SC/0114/1972 :
1972CriLJ1526 and likewise the common law theory was rejected in Makhan
Singh's case. The Section only declares what was the true law prior to its
enactment on June 25. 1975. The amendment of Section 18 by the
substitution of the words "in respect or whom an order is made on
purported to be made under Section 3" in place of the words "detained
under this Act" does not render the Section open to a challenge on the
ground of excessive delegation. The words "purported to be made" have
been inserted in order to obviate the challenge that the detention is not in
strict conformity with the MISA. Such a challenge is even otherwsie barred
under the Presidential Order. The object of the added provision is not to
encourage the passing of lawless orders of detention but to protect during
emergency orders which may happen to be in less than absolute conformity
with the MISA. The executive is bound at all times to obey the mandate of
the legislature but the Presidential Order bars during a certain period the
right to complain of any deviation from that rule.

490. In numerous cases detenus have been released by this Court and by
the High Courts on the ground that there is no nexus between the grounds
of detention and the object of the law under which the order of detention is

25-06-2021 (Page 230 of 305) www.manupatra.com SOAS Library Library

made or that the acts complained of are too distant in point of time to raise
an apprehension that the past conduct of the detenu is likely to project itself
into the future or that the grounds are too vague for the formation even of
subjective satisfaction or that irrelevant and extraneous considerations have
materially influenced the mind of the detaining authority. On some few
occasions detention orders have also been set aside on the ground of factual
mala fides. An unconditional Presidential Order obliterates (his jurisprudence
by striking at the very root of the matter. Locus of the detenu is its chosen
target and it deprives him of his legal capacity to move any court for the
vindication of his rights to the extent that they are mentioned in the
Presidential Order. In their passion for personal liberty courts had evolved,
carefully and laboriously, a sort of "detention jurisprudence" over the years
with the sole object of ensuring that the executive does not transcend its
duty under the law. In legal theory that obligation still remains but its
violation will now furnish no cause of action, at least to an extent, and to a
significant extent. Amidst the clash of arms and conflict of ideologies, laws
will now be silent but in times when the Nation is believed to be going
through great strains and stresses, it may be necessary to entrust sweeping
powers to the State. And it is no small comfort that those powers are
granted with the consent of the Parliament. The people of this country are
entitled to expect when they go to the ballot-box that their chosen
representatives will not willingly suffer an erosion of the rights of the
people. And the Parliament, while arming the executive with great and vast
powers of Government, may feel fairly certain that such powers will be
reasonably exercised. The periodical reviews of detention orders. the checks
and counter-checks which the law provides and above all the lofty faith in
democracy which ushered the birth of the Nation will, I hope, eliminate all
fear that great powers are capable of the greatest abuse. Ultimately, the
object of depriving a few of their liberty for a temporary period has to be to
give to many the perennial fruits of freedom.

491. I find it not so easy to summarize my conclusions in simple,

straightforward sentences. The many-sided issues arising before us do not
admit of a monosyllabic answer--'yes', or 'no'. All the same these broadly
are my conclusions:

(1) The Order issued by the President on June 27, 1975 under
Article 359(1) of the Constitution does not suspend the fundamental
principle that all executive action must have the authority of law to
support it.. Nor does the Presidential Order give to the executive a
charter to disobey the laws made by the Parliament, which is the
supreme law-making authority.

25-06-2021 (Page 231 of 305) www.manupatra.com SOAS Library Library

 (2) The aforesaid Presidential Order, however, deprives a person of
his locus standi to move any court, be it the Supreme Court or the
High Court, for the en forcemeat of his fundamental rights which
are mentioned in the Order. Such deprivation or suspension ensures
during the period that the Proclamation of emergency is in force or
for such shorter period as may be specified in the Order.

(3) The dominant purpose of the petitions filed by the respondents

in the High Courts is to obtain an order of release from detention by
enforcing the right to personal liberty. The purpose is not to obtain
a mere declaration that the order of detention is ultra vires the Act
under which it is passed. The former plea is barred by reason of the
Presidential Order. The latter plea is also barred because regard
must be had to the substance of the matter and not to the form in
which the relief is asked for.

(4) The Presidential Order dated June 27, 1975 bars any
investigation or inquiry into the question whether the order of
detention is vitiated by mala fides, factual or legal, or whether it is
based on extraneous considerations or whether the detaining
authority had reached his subjective satisfaction validly on proper
and relevant material.

(5) Whether or not Article 21 of the Constitution is the sole

repository of the right to personal liberty, in a petition filed in the
High Court under Article 226 of the Constitution for the release of a
person de tainted under the MISA, no relief by way of releasing the
detenu can be granted because no person has the legal capacity to
move any court to ask for such relief. The Presidential Order takes
away such legal capacity by including Article 21 within it. The
source of the right to personal liberty is immaterial because the
words" "conferred by" which occur in Article 359(1) and in the
Presidential Order are not words of limitation.

(6) The Presidential Order does not bring about any amendment of
Article 226 and is not open to challenge on that ground.

(7) The Presidential Order neither bars the right of an accused to

defend his personal liberty in the court of first instance or in a
higher court, nor does it bar the execution of decrees passed
against the Government, nor does it bar the grant of relief other or
less than the release of the detenu from detention.

25-06-2021 (Page 232 of 305) www.manupatra.com SOAS Library Library

 (8) Section 16A(9) of the MISA is not unconstitutional on the
ground that it constitutes an encroachment on the writ jurisdiction
of the High Court under Article 226. There is no warrant for reading
down that Section so as to allow the court to inspect the relevant
files to the exclusion of all other parties.

(9) Section 18 of the MISA does not suffer from the vice of
excessive delegation and is a valid piece of legislation.

492. And so we go back to The Zamora [1916] 2 A. C. 77, Rex v. Halliday

[1917] A. C. 260, Liversidge v. Anderson [1942] A. C. 206, Greene v.
Secretary of State [1942] A. C. 284. A jurisdiction of suspicion is not a
forum for objectivity; "Those who are responsible for national security must
be the sole judges of what the national security requires"; "However
precious the personal liberty of the subject may be, there is something for
which it may well be, to some extent, scarified by legal enactment, namely,
national success in the war, or escape from national plunder or
enslavement". As a result, perhaps the only argument which the court can
entertain is whether the authority which passed the order of detention is
duly empowered to pass it, whether the detenu is properly identified and
whether on the face of the order the stated purpose of detention is within
the terms of law. These questions, in almost all cases, will have an obvious
answer.

493. Counsel after counsel expressed the fear that during the emergency,
the executive may whip and strip and starve the detenu and if this be our
judgment, even shoot him down. Such misdeeds have not tarnished the
record of Free India and I have a diamond-bright, diamond-hard hope that
such things will never come to pass.

P.N. Bhagwati, J.

494. These appeals by special leave raise issues of gravest constitutional

importance. They affect personal liberty which is one of our most cherished
freedoms and impinge on the rule of law which is one of the great principles
that lies at the core of constitutional democracy and gives content to it.
Does a Presidential Order under Article 359, Clause (1) specifying Article 21
silence the mandate of the law and take away personal liberty by making it
unenforceable in a court of law, or does judicial scrutiny of legality of
detention stand untouched and unimpaired, so that, despite such
Presidential Order, a person who is illegally detained can seek his freedom

25-06-2021 (Page 233 of 305) www.manupatra.com SOAS Library Library

by invoking the judicial process. That is the agonizing question before the
Court.

495. The facts giving rise to these appeals have been fully set out in the
judgment of my Lord the Chief Justice and it is not necessary for me to
reiterate them as nothing turns on the facts. None of the writ petitions out
of which these appeals arise has in fact been finally disposed of on merits.
Barring the writ petitions before the Rajasthan High Court and the Nagpur
Bench of the Bombay High Court, where one additional question has been
considered, the only question that has been decided in these writ petitions is
as to their maintainability in view of the Presidential Order dated 27th June,
1975 issued under Article 359, Clause (1) of the Constitution. The High
Courts of Allahabad, Madhya Pradesh, Andhra Pradesh, Delhi, Karnataka and
Rajasthan and the Nagpur Bench of the Bombay High Court before whom
these writ petitions were heard on the preliminary issue as to
maintainability, took the view that the Presidential Order, dated 27th June,
1975, did not wholly bar the maintainability of these petitions, but left open
certain grounds of challenge which could yet be urged against the validity of
the order of detention. These different High Courts were not agreed upon
what were the grounds of challenge which were thus available to an
applicant despite the Presidential Order dated 27th June, 1975. There were
differences of opinion amongst them, but for the purpose of the present
appeals, it is not necessary to refer to those differences as they are not
material. The Rajasthan High Court and the Nagpur Bench of the Bombay
High Court also considered the interpretation and validity of Section 16A,
Sub-section (9) of the Maintenance of Internal Security Act, 1971 and while
the Rajasthan High Court accepted the interpretation of that Sub-section
canvassed on behalf of the Government and upheld its validity even on that
interpretation, the Nagpur Bench of the Bombay High Court held the Sub-
section to be valid by reading it down so as not to exclude the power of the
High Court under Article 226 of the Constitution to call for the grounds,
information and materials on which the order of detention was based. Since
in the view of these High Courts, the writ petitions filed by the detenus were
maintainable, though on certain limited grounds of challenge, each of the
writ petitions was directed to be set down for hearing on merits. Thereupon
each of the aggrieved State Governments obtained special leave to appeal
against the decision of the concerned High Court and that is how the
present appeals have come before this Court.

496. Two questions arise for consideration in these appeals. They have been
formulated by the learned Attorney General appearing on behalf of the
Union of India in the following terms:

25-06-2021 (Page 234 of 305) www.manupatra.com SOAS Library Library

 (1) Whether, in view of the Presidential Order dated June 27, 1975
under Clause (1) of Article 359, any writ petition under Article 226
before a High Court for habeas corpus to enforce the right to
personal liberty of a person detained under MISA on the ground
that the order of detention or the continued detention is for any
reason, not under or in compliance with MISA is maintainable ?

(2) If such a petition is maintainable, what is the scope or extent of

judicial scrutiny, particularly, in view of the said Presidential Order
mentioning, inter alia, Clause (5) of Article 22 and also in view of
Sub-section (9) of Section 16A of MISA?

So far as the second question is concerned, it may be pointed out

straightaway that the learned Attorney General with his usual candor
conceded that if his first contention in regard to maintainability of a writ
petition for habeas corpus is not accepted and the writ petition is held
maintainable, the area of judicial scrutiny would remain the same as laid
down in the decisions of this Court, subject only to the qualification that the
grounds, information and materials, on which the order of detention is
based, would not be available either to the detenu or to the High Court by
reason of suspension of enforcement of the right conferred by Clause (5) of
Article 22 and the enactment of Section 16A, Sub-section (9) of the
Maintenance of Internal Security Act, 1971. The only point which would,
therefore, require to be considered under the second question is in regard to
the interpretation and validity of Sub-section (9) of Section 16A.

497. Before we proceed to consider the first question which turns on the
true interpretation and effect of the Presidential Order dated 27th June,
1975, it would help to place the problem in its proper perspective if we first
examine what is an emergency and how institutions and procedures
different from those in normal times are necessary to combat it. It would be
both profitable and necessary to embark upon this inquiry, because Article
359, Clause (1) under which the Presidential Order dated 27th June, 1975
has been issued is a consequential provision which comes into operation
when a Proclamation of emergency is issued by the President under Article
352. It is evident that a national emergency creates problems for a
democracy no less than for other governments. A totalitarian Government
may handle such a situation without embarrassment. But the apparent
necessities evoked by danger often conflict gravely with the postulates of
constitutional democracy. The question arises--and that was a question
posed by Abraham Lincoln on July 4, 1861 : can a democ ratio constitutional
government beset by a national emergency be strong enough to maintain its

25-06-2021 (Page 235 of 305) www.manupatra.com SOAS Library Library

own existence without at the same time being so strong as to subvert the
liberties of the people it has been instituted to defend. This question is
answered affirmatively by the incontestable facts of history if we have
regard to the experience of emergency governments of three large modern
democracies--the United States, Great Britain and France. There is no
reason why the Indian experience should be otherwise, if the basic norms of
constitutionalism in assumption of emergency powers are observed. What
are these basic norms in a constitutional democracy and what is the purpose
behind assumption of emergency powers are matters which I shall presently
discuss. But before I do so, let me first consider what are the different types
of emergency which may plague the government of a country.

498. There are three types of crisis in the life of a democratic nation, three
well defined threats to its existence both as nation and democracy. The first
of these is war, particularly a war to repel invasion when "a State must
convert its peace-time political and social order into a war-time fighting
machine and over-match the skill and efficiency of the enemy". There may
be actual war or threat of war or preparations to meet imminent occurrence
of war, all of which may create a crisis situation of the gravest order. The
necessity of concentration of greater powers in the Government and of
contraction of the normal political and social liberties cannot be disputed in
such a case, particularly when the people are faced with a grim horror of
national enslavement. The second crisis is threat or presence of internal
subversion calculated to disrupt the life of the country and jeopardize the
existing of the constitutional government. Such activity may stem from a
variety of causes. Perhaps the most common is disloyalty to the existing
form of government, often accompanied by a desire to effect changes by
violent means. Another cause may be strong disaffection with certain
government policies. Communal demands for States within the Federal on
linguistic or religious lines may fall within this category. Or the presence of
powerful lawless elements with perhaps no political motivation, but for
various reasons beyond the scope of ordinary machinery of the law, may
give rise to this problem. The third crisis, one recognised particularly in
modern times as sanctioning emergency action by constitutional
government, is break down or potential break down of the economy. It must
be recognised that an economic crisis is as direct a threat to a nation's
continuing constitutional existence as a war or internal subversion. These
are three kinds of emergencies which may ordinarily imperil the existence of
a constitutional democracy.

499. Now, it is obvious that the complex system of government of a

constitutional democratic State is essentially designed to function under

25-06-2021 (Page 236 of 305) www.manupatra.com SOAS Library Library

normal peaceful conditions and is often unequal to the exigencies of a
national crisis. When there is an emergency arising out of a national crisis, a
constitutional democratic government has to be temporarily altered to
whatever degree necessary to overcome the peril and restore normal
conditions. This alteration invariably involves government of a stronger
character. The government has to assume larger powers in order to meet
the crisis situation and that means that the people would have fewer rights.
There can be no doubt that crisis government means strong and arbitrary
government and as pointed out by Cecil Carr in his Article on "Crisis
Legislation in Great Britain" published during the Second World War "in the
eternal dispute between Government and liberty, crisis means more
government and less liberty." In fact Scrutton, L.J. never a fulsome admirer
of government departments, made the classic remark in his judgment in
Ronnfeldt v. Phillips 35 Times Law Reports 46 that war cannot be carried on
according to the principles of Magna Carta and there must be some
modification of the liberty of the subject in the interests of the State, The
maxim salus populi suprema lex esto, that is public safety is the highest law
of all, must prevail in times of crisis and the people must submit to
temporary abdication of their constitutional liberties in order to enable the
government to combat the crisis situation which might otherwise destroy the
continued existence of the nation.

500. While dealing with the emergency powers which may be assumed by a
constitutional democracy to deal effectively with a national crisis, it is
necessary to refer to the celebrated writ of habeas corpus. It is the most
renowned contribution of the English common law to the protection of
human liberty. It is one of the most ancient writs known to the Common
Law of England. It is a writ of immemorial antiquity "throwing its roots deep
into the genius" of the Common Law. It is not necessary to trace the early
history of this writ which is to be found in the decision of this Court in Kanu
Sanyal v. District Magistrate, Darjeeling and Ors. [9731] 2 S. C. C. 674.
Suffice it to state that by the 17th Century this writ had assumed great
constitutional importance as a device for impugning the validity of arbitrary
imprisonment by the executive and by invoking it, a person unlawfully
imprisoned could secure his release. As pointed out by Holdsworth in Vol. 1
of his "History of English Law", "its position as the most efficient protector of
the liberty of the subject was unquestioned after the great Rebellion". It was
for this reason that men began to assign as its direct ancestor the clauses of
the Magna Carta which prohibited imprisonment without due process of law.
This may not be strictly accurate, but there can be no doubt that, far more
effective than any other remedy, this writ helped to vindicate the right of
freedom guaranteed by the famous words of the Magna Carta. The decision

25-06-2021 (Page 237 of 305) www.manupatra.com SOAS Library Library

in Darnel's case (1627) 3 ST 1 was a set-back in the struggle for liberty
since it eroded to some extent the effectiveness of the writ by taking the
view that a return that the arrest was "by the special command of the King"
was a good and sufficient return to the writ, which meant that a lawful
cause of imprisonment was shown. But the Petition of Right, 1627 overruled
this decision by declaring such a case of imprisonment to be unlawful. In the
same way, it was enacted in the Habeas Corpus Act, 1640 abolishing the
Star Chamber that any person committed or imprisoned by order of the Star
Chamber or similar bodies or by the command of the King or of the Council
should have his habeas corpus. There were also various other defects which
were revealed in course of time and with a view to remedying those defects
and making the writ more efficient as an instrument of securing the liberty
of the subject unlawfully detained, reforms were introduced by the Habeas
Corpus Act, 1679, and when even these reforms were found insufficient, the
Habeas Corpus Act, 1816 was enacted by which the benefit of the provisions
of the Habeas Corpus Act, 1679 was made available in cases of civil
detention and the judges were empowered to inquire into the truth of the
facts set out in the return to the writ. The machinery of the writ was thus
perfected by legislation and it became one of the most important safeguards
of the liberty of the subject and, as pointed out by Lord Halsbury, L.C., in
Cox v. Hakes [1890] 15 A. C. 506 it has throughout "been jealously
maintained by courts of law as a check upon the illegal usurpation of power
by the executive at the cost of the liege".

501. Now, in the United States of America, the right to this important writ of
habeas corpus by means of which the liberty of a citizen is protected against
arbitrary arrest, is not expressly declared in the Constitution, but it is
recognised in Article I, Placitum 9, Clause (2) of the Constitution which
declares that "The privilege of the writ of habeas corpus shall not be
suspended, unless, when in cases of rebellion or invasion, the public safety
may require it". Cooley in his "General Principles of Constitutional Law in the
U.S.A." points out : "The privilege of the writ consists in this : that, when
one complains that he is unlawfully imprisoned or deprived of his liberty, he
shall be brought without delay before the proper court or magistrate for an
examination into the cause of his detention, and shall be discharged if the
detention is found to be unwarranted. The suspension of the privilege
consists in taking away this right to an immediate hearing and discharge,
and in authorising arrests and detentions without regular process of law."
The suspension of the privilege of the writ does not legalise what is done
while it continues : it merely suspends for the time being the remedy of the
writ.

25-06-2021 (Page 238 of 305) www.manupatra.com SOAS Library Library

502. The decision of Chief Justice Taney in ex P. Merryman 17 Fed. Cas. 144
(C. C. D. Md. 1861) contains the leading American discussion of the
suspension of the writ of [habeas corpus in a temporary emergency. In the
spring of 1861, the eve of the American civil War, President Lincoln was
confronted by a state of open insurrection in the State of Maryland following
the fall of Fort Sumter on April 15. Railroad communication to the northern
United States had been severed by the Marylanders on April 20 and the
Sixth Massachusetts Militia reached Washington only after fighting its way
through the City of Baltimore. In these circumstances and under the
increasing threat of secession, President Lincoln issued a Proclamation on
April 27 authorising General Penfield Scot to suspend the writ of habeas
corpus "at any point on or in the vicinity of the military line which is now, or
shall be used between the City of Philadelphia and the City of Washington".
Another Proclamation of July 2 extended this power to a similar area
between Washington and New York. John Merryman who was a Marylander
openly recruited a company of soldiers to serve in the Confederate Army
and became their drill master and in consequence he was arrested by the
army of Lincoln and held prisoner in Fort McHenry. He applied for a writ of
habeas corpus and, despite the Presidential authorisation suspending the
writ, the Supreme Court presided over by Chief Justice Taney granted the
writ on the view that the power to suspend the privilege of the writ is a
legislative power and the President cannot exercise it except as authorised
by law. History tells us that President Lincoln declined to implement the
order of the Supreme Court and this would have led to a major
constitutional crisis, but the Congress hastened to resolve the controversy
by enacting legislation authorising the President to suspend the privilege of
the writ whenever in his judgment the public safety requires it. It would,
therefore, be seen that even in United States of America, where personal
liberty is regarded as one of the most prized possessions of man, the
Congress has the power to suspend the writ of habeas corpus and this
power has been exercised in the past, though very sparingly.

503. So also in Great Britain the writ of habeas corpus which, as May points
out, "is unquestionably the first security of liberty" and which "protects the
subject from unfounded suspicions, from aggressions of power" has been
suspended, again and again, in periods of public danger or apprehension.
Parliament, convinced of the exigencies of the situation, has on several
occasions suspended, for the time being, the rights of individuals in the
interests of the State. This of course has had the effect of arming the
executive with arbitrary power of arrest by making it impossible for a person
detained to secure his release even if his detention is illegal. It has resulted
in great diminution in the security of personal freedom, for, suspension of

25-06-2021 (Page 239 of 305) www.manupatra.com SOAS Library Library

habeas corpus is verily, in substance and effect, suspension of the right of
personal liberty granted in Magna Carta, But it has been justified on the
ground that whatever be the temporary danger of placing such power in the
hands of the Government, it is far less than the danger with which the
Constitution and the society are threatened, or to put it differently "when
danger is imminent, the liberty of the subject must be sacrificed to the
paramount interests of the State". Moreover, on each occasion when the writ
of habeas corpus has been suspended, the suspension of the writ has
invariably been followed by an Act of Indemnity "in order to protect officials
concerned from the consequences of any incidental illegal acts which they
might have committed under cover of suspension of the propogative writ".
During the period of emergency, many illegalities might have been
committed by the executive in order to deal with a crisis situation and all
such illegalities have been retrospectively legalised by an Indemnity Act.

504. I may now turn to consider the emergency provisions under our
Constitution. Unlike many of the older constitutions, our Constitution speaks
in detail on the subject of emergency in Part XVIII. That Part consists of a
fascicules of Articles from Article 352 to Article 360. Article 352 enacts that
if the President is satisfied that a grave emergency exists whereby the
security of India or of any part of the territory thereof is threatened,
whether by war or external aggression or internal disturbance, he may, by
Proclamation, make a declaration1 to that effect and such Proclamation is
required to be laid before each House of Parliament and approved by
resolutions of both Houses before the expiration of two months. It is not
necessary that there should be actual occurrence of war or external
aggression or internal disturbance in order to justify a Proclamation of
emergency. It is enough if there is imminent danger of any such crisis. It
will be seen that this Article provides for emergencies of the first two types
mentioned above. The third type of emergency threatening the financial
stability of India or any part thereof is dealt with in Article 360 but we are
not concerned with it and hence it is not necessary to consider the
provisions of that Article. So far as the emergencies of the first two types
are concerned, the constitutional implications of a declaration of emergency
under Article 352 are much wider than in the United States or Great Britain.
These are provided for in the Constitution itself. In the first place, Article
250 provides that while a Proclamation of emergency is in operation,
Parliament shall have the power to make laws for the whole or any part of
the territory of India with respect to any of the matters enumerated in the
State List, which means that the federal structure based on separation of
powers is put out of action for the time being. Secondly, Article 353 declares
that during the time that Proclamation of emergency is in force, the

25-06-2021 (Page 240 of 305) www.manupatra.com SOAS Library Library

executive power of the Union of India shall extend to the giving of direction
to any State as to the manner in which the executive power thereof is to be
exercised and this provision also derogates from the federal principle which
forms the basis of the Constitution. If there is non-compliance by any State
with the directions given by the Union under Article 353, such non-
compliance may attract the provisions of Article 356 and 'President's rule'
may be imposed under that Article and in such event, Parliament may.
under Article 357, Clause (1), confer on the President the power of the
legislature of the State to make laws or to delegate such legislative power to
any other authority. This not only contradicts the federal principle, but also
strikes at the root of representative form of government. Then there are two
Articles, Article 358 and Article 359, which set out certain important
consequences of Proclamation of emergency and they read as follows:

"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 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. (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.

(1A) While an order made under Clause (1) mentioning any of the
rights conferred by Part III is in operation, nothing in that Part
conferring those rights shall restrict the power of the State as
defined in the said Part 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 in competency, cease to have effect as
soon as the order aforesaid ceases to operate, except as respects
things done or omitted to be done before the law so ceases to have
effect.

25-06-2021 (Page 241 of 305) www.manupatra.com SOAS Library Library

 (2) An order made as aforesaid may extend to the whole or any
part of the territory of India.

(3) Every order made under Clause (1) shall, as soon as may be
after it is made, be laid before each House of Parliament.

It may be pointed out that Clause (1A) did not form part of Article 359 when
the Constitution was originally enacted but it was introduced with
retrospective effect by the Constitution (Thirty-eighth Amendment) Act,
1975. We are not directly concerned in these appeals with the interpretation
of Article 358 and Clause (1A) of Article 359, but in order to arrive at the
proper meaning and effect of Clause (1) of Article 359, it will be relevant
and somewhat useful to compare and contrast the provisions of Article 358
and Clause (1A) of Article 359 on the one hand and Clause (1) of Article 359
on the other.

505. It would be convenient at this stage to set out the various steps taken
by the Government of India from time to time in exercise of the emergency
powers conferred under Part XVIII of the Constitution. When hostilities
broke out with Pakistan in the beginning of December 1971, the President
issued a Proclamation of emergency dated 3rd December, 1971 in exercise
of the powers conferred under Clause (1) of Article 352 declaring that "a
grave emergency exists whereby the security of India is threatened by
external aggression". This was followed by two orders, one dated 5th
December, 1971 and the other dated 23rd December, 1974, issued by the
President under Clause (1) of Article 359. It is not necessary to reproduce
the terms of these two Presidential Orders since they were subsequently
rescinded by a Presidential Order dated 25th December, 1975 issued under
clause d) of Article 359. Whilst the first Proclamation of emergency dated
3rd December, 1971 based on threat of external aggression continued in
force, the President issued another Proclamation of emergency dated 25th
June, 1975 declaring that "a grave emergency exists whereby the security
of India is threatened by internal disturbance". This Proclamation of
emergency was also issued in exercise of the powers conferred under Article
352, Clause (1) and it was followed by a fresh Presidential Order dated 27th
June, 1975 under Clause (1) of Article 359. The President, by this Order
made under Clause (1) of Article 359, declared that "the right of any person,
(including a foreigner) to move any court for the enforcement of the rights
conferred by Article 14, Article 21 and Article 22 of the Constitution and all
proceedings pending in any court for the enforcement of the above
mentioned rights shall remain suspended for the period during which the
Proclamations of emergency made under Clause (1) of Article 352 of the

25-06-2021 (Page 242 of 305) www.manupatra.com SOAS Library Library

Constitution on the 3rd December, 1971 and on the 25th June, 1975 are
both in force". The writ petitions out of which the present appeals arise were
filed after the issue of this Presidential Order and it was on the basis of this
Presidential Order that it was contended on behalf of the State Governments
and the Union of India that the writ petitions were not maintainable, since,
by moving the writ petitions, the detenus sought enforcement of the right of
conferred by Article 21. This contention was substantially negatived by the
High Courts and hence the present appeals were brought by the State
Governments and the Union of India raising the same contention as to the
maintainability of the writ petitions. It may be pointed out that whilst the
present appeals were pending before this Court, the President issued
another Order dated 8th January, 1976 under Clause (1) of Article 359
suspending the enforcement of the rights conferred by Article 19. This
Presidential Order is not material, but I have referred to it merely for the
sake of completeness.

506. Now the orders of detention challenged by the detenus in the different
writ petitions were all expressed to be made in exercise of the powers
conferred by Section 3 of the Maintenance of Internal Security Act, 1971.
The detenus challenged them on various grounds, namely, the orders of
detention were not in accordance with the provisions of the Act, they were
not preceded by the requisite subjective satisfaction which constitutes the
foundation for the making of a valid order of. detention, they were actuated
by malice in law or malice in fact or they were outside the authority
conferred by the Act. The substance of these grounds, according to the
Union of India and the State Governments, was that, by these orders of
detention, the detenus, were deprived of their personal liberty otherwise
than in accordance with the procedure established by law. This constituted
infraction of the fundamental right conferred by Article 21 and the writ
petitions of the detenus were, therefore, clearly proceedings for
enforcement of that fundamental right. But by reason of the Presidential
Order dated 27th June, 1975, the right to move any court for enforcement
of the fundamental right conferred by Article 21 was suspended during the
period when the Proclamations of emergency dated 3rd December, 1971 and
25th June, 1975 were in force and, therefore, the detenus had no locus
standi to file the writ petitions and the writ petitions were barred. The
answer to this contention given on behalf of the detenus was--and here we
are setting out only the broad general argument--that Article 21 merely
defines an area of free action and does not confer any right and hence it is
outside the scope and ambit of Article 359, Clause (1) and consequently
outside the Presidential Order itself. It was also urged on behalf of the
detenus that it is a basic principle of the rule of law that no member of the

25-06-2021 (Page 243 of 305) www.manupatra.com SOAS Library Library

executive can interfere with the liberty of a person except in accordance
with law. The principle of the rule of law was recognised and declared by the
Judicial Committee of the Privy Council in Eshugbayi Eleko v. Officer
Administering the Government of Nigeria [1931] A. C. 662 and it was
uniformly administered by courts in India as the law of the land prior to the
coming into force of the Constitution. It was consequently law in for in the
territory of India immediately before the commencement of the Constitution
and by reason of Article 372, it continued in force ever after the coming into
force of the Constitution and since then it has been repeatedly recognised
and adopted by this Court as part of Indian jurisprudence in several decided
cases. Moreover, apart from being continued under Article 372 as law in
force, this principle of the rule of law stems from the constitutional scheme
itself which is based on the doctrine of distribution of powers amongst
different bodies created by the Constitution. Under the constitutional
scheme the executive is a limited executive and it is bound to act in
accordance with law and not go against it. This obligation of the executive
not to act to the detriment of a person without the authority of law can be
enforced under Article 226 by issue of a writ "for any other purpose". When
a detenu files a petition under Article 226 challenging the validity of the
order of detention on the ground that it is not in accordance with the Act or
is outside the authority conferred by the Act, he seeks to enforce this
obligation against the State Government and the suspension of enforcement
of the fundamental right under Article 21 does not affect the maintainability
of his writ petition. The detenus also contended that in any event the right
to personal liberty was a statutory right and the suspension of the
fundamental right conferred by Article 21 did not carry with it suspension of
the enforcement of this statutory right. The Union of India and the State
Governments rejoined to this contention of the detenus by saying that
Article 21 was the sole repository of the right of personal liberty and there
was no common law or statutory right in a person not to be deprived of his
personal liberty except in accordance with law, apart from that contained in
Article 21 and, therefore, the writ petitions filed by the detenus were in
substance and effect petitions for enforcement of the right conferred by
Article 21 and hence they were not maintainable.

507. Before we proceed to consider these contentions which have been

advanced before us, it is necessary to remind ourselves that the emergency
provisions in Part XVIII of the Constitution make no distinction whether the
emergency is on account of threat to the security of India by war or external
aggression or on account of threat to the security of India by internal
disturbance. The same provisions are applicable alike in both situations of
emergency, irrespective of the reason for which emergency, has been

25-06-2021 (Page 244 of 305) www.manupatra.com SOAS Library Library

declared. The legal consequences are the same and, therefore, whatever
interpretation we place on Article 359, Clause (1) in the present case which
relates to declaration of emergency on account of internal disturbance would
apply equally where the emergency is declared on account of war or
external aggression by a hostile power. If we take the view that the
Presidential Order under Article 359, Clause (1) suspending enforcement of
Article 21 does not bar the remedy of a detained person to seek his release
on the ground that his detention is illegal, it would be open to a detained
person to challenge the legality of his detention even when there is
emergency on account of war or external aggression, because, barring
Article 359, there is no other provision in the Constitution which can even
remotely be suggested as suspending or taking away the right to move the
Court in cases of illegal detention. The consequence would be that even in a
perilous situation when the nation is engaged in mortal combat with an
enemy, the courts would be free to examine the legality of detention and
even if a detention has been made for efficient prosecution of the war or
protecting the nation against enemy activities, it would be liable to be struck
down by the courts if some procedural safeguard has been violated though
it may be bona fide and through inadvertence. This would imperil national
security and the Government of the day would be helpless to prevent it. The
question is : whether such is the interpretation of Article 359, Clause (1). Of
course, if that is the only possible interpretation, we must give effect to it
regardless of the consequence, leaving it to the constituent authority to
amend the Constitution, if it so thinks fit. But we may ask ourselves : could
the Constitution makers have intended that even in times of war or external
aggression, there should be no power in the President, as the head of the
Nation, to bar judicial scrutiny into legality of detention. It may be pointed
out that even in the United States of America, the President has power
under Article I Placitum 9, Clause (2) of the United States Constitution to
suspend the privilege of the writ of habeas corpus "when in cases of
rebellion or invasion the public safety may require it". The British Parliament
has also on several occasions in the past suspended the writ of habeas
corpus by legislative enactment, though in limited classes of cases. The
Constitution makers were obviously aware that even in these countries
which are essentially democratic in character and where the concept of
constitutional government has had its finest flowering, the power to exclude
judicial review of legality of detention through the means of a writ of habeas
corpus has been given to the Supreme legislature or the head of the State
and they must have realised that this was a necessary power in times of
national peril occasioned by war or external aggression. Could the
Constitution makers have intended to omit to provide for conferment of this
power on the head of the State in our Constitution?

25-06-2021 (Page 245 of 305) www.manupatra.com SOAS Library Library

508. We must also disabuse our mind of any notion that the emergency
declared by the Proclamation dated 25th June, 1975 is not genuine, or to
borrow an adjective used by one of the lawyers appearing on behalf of the
interveners, is 'phoney'. This emergency has been declared by the President
in exercise of the powers conferred on him under Article 352, Clause (1) and
the validity of the Proclamation dated 25th June, 1975 declaring this
emergency has not been assailed before us. Mr. Shanti Bhushan and the
other learned Counsel appearing on behalf of the detenus in fact conceded
before us that, for the purpose of the present appeals, we may proceed on
the assumption that the declaration of emergency under the Proclamation
dated 25th June, 1975 is valid. But if this emergency is taken as' valid, we
must equally presume that it is genuine and give full effect to it, without any
hesitation or reservation.

509. With these prefatory observations I will now turn to examine Clause
(1) of Article 359 under which the Presidential Order has been issued. The
language of this clause is clear and explicit and does not present any
difficulty of construction. It says that where a Proclamation of emergency is
in operation, the President may by order suspend 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. Any or all of the rights conferred by Part III can
find a place in the Presidential Order. Whilst the Presidential Order is in
force, no one can move any court for the enforcement of any of the
specified fundamental rights. I shall presently discuss whether Article 21 can
be said to confer any right, but assuming it does--and, as will be evident
shortly, that is my conclusion--the right to move any court for the
enforcement of the fundamental right guaranteed by Article 21 may be
suspended by specifying it in the Presidential Order. When that is done, no
one can move any court, and any court would mean any court of competent
jurisdiction, including the High Courts and the Supreme Court., for
enforcement of the right conferred by Article 21. The words "the right to
move any court for the enforcement" are 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 specified fundamental rights". Vide Makhan Singh v.
State of Punjab MANU/SC/0039/1963 : 1964CriLJ217 . therefore, there can
be no doubt that in view of the Presidential Order which mentions Article 21,
the detenus would have no locus standi to maintain their writ petitions, if it
could be shown that the writ petitions were for enforcement of the right
conferred by Article 21.

25-06-2021 (Page 246 of 305) www.manupatra.com SOAS Library Library

510. That should logically take me straight to a consideration of the
question as to what is the scope and content of the right conferred by Article
21, for without defining it, it would not be possible to determine whether the
right sought to be enforced by the detenus in their writ petitions is the right
guaranteed under Article 21 or any other distinct fight. But before I examine
this question, it would be convenient first to deal with Clause (1A) of Article
359 and ascertain its meaning and effect. Clause (1A) of Article 359 did not
find a place in the Constitution when it was originally enacted, but it was
inserted with retrospective effect by the Constitution (Thirty-eighth)
Amendment Act, 1975. It provides that while an order made under Clause
(1) of Article 359 mentioning any of the rights conferred by Part III is in
operation, nothing in that Part conferring those rights shall restrict the
power of the State 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. It will be noticed that the language of Clause (1A) of
Article 359 is in the same terms as that of Article 358 and the decisions
interpreting Article 358 would, therefore, afford considerable guidance in the
interpretation of Clause (1A) of Article 359. But before I turn to those
decisions, let me try to arrive at the proper meaning of that clause on a
plain interpretation of its language.

511. In the first place, it is clear that Clause (1 A) of Article 359 is

prospective in its operation, for it says that, while a Presidential Order is in
operation, nothing in the Articles mentioned in the Presidential Order shall
restrict the power of the State to make any law or to take any executive
action which the State would, but for the provisions contained in Part III, be
competent to make or to take. This clause does not operate to validate a
legislative provision or executive action which was invalid because of the
constitutional inhibition before the Proclamation of emergency. Secondly, it
may be noted that the fundamental rights operate as restrictions on the
power of the State, which includes the executive as well as the legislature.
When a Presidential Order is issued under Article 359, Clause (1), the
fundamental right mentioned in the Presidential Order is suspended, so that
the restriction on the power of the executive or the legislature imposed by
the fundamental right is lifted while the Presidential Order is in operation
and the executive or the legislature is free to make any law or to take any
action which it would, but for the provisions contained in Part III, be
competent to make or to take. The words "but for the provisions contained
in that Part", that is, but for the fundamental rights, means "if the
fundamental rights were not there". The question which has, therefore, to
be asked is : if the fundamental rights were not there in the Constitution,
would the executive or the legislature be competent to make the impugned

25-06-2021 (Page 247 of 305) www.manupatra.com SOAS Library Library

law or to take the impugned executive action? If it could, it would not be
restricted from doing so by reason of the particular fundamental right
mentioned in the Presidential Order. The Presidential Order would, therefore,
have the effect of enlarging the power of the executive of the legislature by
freeing it from the restriction imposed by the fundamental right mentioned
in the Presidential Order, but it would not enable the legislature or the
executive to make any law or to take any executive action which it was not
otherwise competent to make or to take. Now it is clear that, if the
fundamental rights were not there in the Constitution, the executive being
limited by law would still be unable to take any action to the prejudice of a
person except by authority of law and in conformity with or in accordance
with law and, therefore, even if the Presidential Order mentions Article 21,
Clause (1A) of Article 359 would not enable the executive to deprive a
person of his personal liberty without sanction of law and except in
conformity with or in accordance with law. If an order of detention is made
by the executive without the authority of law, it would be invalid and its
invalidity would not be cured by Clause (1A) of Article 359, because that
clause does not protect executive action taken without lawful authority. An
unlawful order of detention would not be protected from challenge under
Article 21 by reason of Clause (1A) of Article 359 and the detenu would be
entitled to complain of such unlawful detention as being in violation of
Article 21, except in so far as his right to move the court for that purpose
may be held to have been taken away by Clause (1) of Article 359.

512. This interpretation of Clause (1A) of Article 359 is clearly supported by

the decision of this Court in State of Madhya Pradesh v. Thakur Bharat Singh
MANU/SC/0043/1967 : [1967]2SCR454 and the subsequent decisions
following it, which relate to the interpretation of the similarly worded Article
358. What happened in Bharat Singh's case (supra) was that whilst the
Proclamation of emergency dated October 20, 1962 was in operation, the
State Government made an order under Sub-section (1) of Section 3 of the
Madhya Pradesh Public Security Act, 1959 directing that Bharat Singh shall
not be in any place in Raipur District and shall immediately proceed to and
reside in Jhabua. Bharat Singh challenged the validity of the order inter alia
on the ground that Sub-section (1) of Section 3 of the Act infringed the
fundamental rights guaranteed under Clauses (d) and (e) of Article 19(1).
The State Government sought to meet the challenge by pleading the bar of
Article 35 S. But this Court held that Article 358 had no application because
Sub-section (1) of Section 3 of the Act which was impugned in the petition
was a pre-emergency legislation. this Court, speaking through Shah, J.
observed:

25-06-2021 (Page 248 of 305) www.manupatra.com SOAS Library Library

 Article 358 which suspends the provisions of Article 19 during an
emergency declared by the President under Article 352 is in terms
prospective : after the proclamation of emergency nothing in Article
19 restricts the power of the State to make laws or to take any
executive action which the State but for the provisions contained in
Part III was competent to make or take. Article 358 however does
not operate to validate a legislative provision which was invalid
because of the constitutional inhibition before the proclamation of
emergency.

this Court accordingly proceeded to consider the validity of Section 3, Sub-

section (1) of the Act and held that Clause (b) of that Sub-section was
unconstitutional as it infringed the fundamental rights under clauses (d) and
(e) of Article 19(1) and if it was void before the Proclamation of emergency,'
"it was not revived by the Proclamation".

But on this view, another contention was put forward on behalf of the State
Government and that was that Article 358 protects not only legislative but
also executive action taken after the Proclamation of emergency and,
therefore, executive action taken by the State would not be liable to be
challenged on the ground that it infringes the fundamental rights under
Article 19, and consequently, the Order of the State Government, though
made under void law was protected against challenge under Article 19. This
contention was also rejected by the Court in the following words:

In our judgment, the argument involves a grave fallacy. All

executive action which operates to the prejudice of any person must
have authority of law to support it and the terms of Article 358 do
not detract from that rule. Article 358 does not purport to invest the
State with arbitrary authority to take action to the prejudice of
citizens and others it merely provides that so long as the
proclamation of emergency subsists laws may be enacted, and
executive action may be taken in pursuance of lawful authority,
which if the provisions of Article 19 were operative would have been
invalid.

The view taken by the Court was that it is only where executive action is
taken in pursuance of lawful authority that it is immune from challenge
under Article 19 and in such a case even if it conflicts with the fundamental
rights guaranteed under that Article, it would be valid. But where executive
action is taken without lawful authority, as for example, where it is taken
without the authority of any law at all or in pursuance of a law which is void,

25-06-2021 (Page 249 of 305) www.manupatra.com SOAS Library Library

it is not protected from challenge under Article 19 by Article 358 and it
would be void to the extent it violates Article 19.

513. The same view was taken by this Court in District Collector of
Hyderabad v. M/s. Ibrahim &. Co. MANU/SC/0070/1970 : [1970]3SCR498
where this Court said, without referring expressly to the decision in Bharat
Singh's case (supra) that "-- the executive order immune from attack is only
that order which the State was competent, but for the provisions contained
in Article 19, to make", and that "executive action of the State Government,
which is otherwise invalid, is not immune from attack merely because the
Proclamation of emergency is in operation when it is taken". The reference
here was to immunity from attack under Article 19 and it was held that
executive action which was contrary to law and hence invalid, was not
protected from attack under Article 19 by reason of Article 358. So also in
Bennett Coleman & Co. v. Union of India MANU/SC/0038/1972 :
[1973]2SCR757 , this Court referred to the decisions in Bharat Singh's case
(supra) and Ibrahim's case (supra) and observed : "Executive action which
is unconstitutional is immune during Proclamation of emergency. During the
Proclamation of emergency Article 19 is suspended. But it would not
authorise the taking of detrimental executive action during the emergency
affecting fundamental rights in Article 19 without any legislative authority or
any purported exercise of power conferred by any pre-emergency law which
was invalid when enacted". this Court also said to the same effect in Shree
Meenakshi Mills Ltd. v. Union of India MANU/SC/0064/1973 :
[1974]2SCR398 : "-- if it can be shown that the executive action taken
during the emergency has no authority of a valid Jaw, its constitutionality
can be challenged". These observations clearly show that where executive
action is taken without any legislative authority or in pursuance of a law
which is void, it would not be protected by Article 358 from challenge under
Article 19 and it would be unconstitutional to the extent to which it conflicts
with that Article.

514. If this be the interpretation of Article 358 as laid down in the decision';
of this Court, a fortiori a like interpretation must be placed on Clause (1A) of
Article 359, as both are closely similar in form as well as language. It must,
therefore, be held that even though a Presidential Order issued under
Clause (1) of Article 359 mentions Article 21, where it is found that a
detention has not been made in pursuance of lawful authority or in other
words, the detention is without the authority of law, whether by reason of
there being no law at all or by reason of the law under which the detention
is made being void, Clause (1 A) of Article 359 would not protect it from
challenge under Article 21 and it would be in conflict with that Article. The

25-06-2021 (Page 250 of 305) www.manupatra.com SOAS Library Library

only question then would be whether the detenu would be entitled to
challenge the validity of the detention as being in breach of Article 21, in
view of Clause (1) of Article 35'' read with the Presidential Order mentioning
Article 21.

515. Now, at the outset, a contention of a preliminary nature was advanced

by Mr. Shanti Bhushan, learned Advocate appearing on behalf of some of the
detenus, that Clause (1) of Article 359 can have no operation in cases where
a detenu seeks to enforce his right of personal liberty by challenging the
legality of his detention. Mr. Shanti Bhushan contended, and in this
contention he was strongly supported by Mr. Jeth-malani, that personal
liberty is not a conglomeration of positive rights but is merely a negative
concept denoting an area of free action to the extent to which law does not
curtail it or authorise its curtailment and such a negative right cannot by its
very nature be the subject of conferment under Article 21. The argument of
counsel based on this contention was that when Article 359 Clause (1)
speaks of suspension of "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",
it cannot include reference to the right of personal liberty in Article 21,
because it cannot be said of such a right that it is conferred by Article 21. It
was urged that Article 21 cannot therefore appropriately find a place in a
Presidential Order under Clause (1) of Article 359 and even if it is
erroneously mentioned there; it can have no legal sequitur and cannot give
rise to the consequences set out in Clause (1) of Article 359. This argument
was sought to be supported by reference to two well known text books on
jurisprudence, one by Salmond and the other by Holland and the Declaration
of the Rights of Man and the Citizen adopted by the French National
Assembly was also relied upon for this purpose. There is, however, no merit
in this argument. The words 'rights conferred by Part III' cannot be read in
isolation, nor can they be construed by reference to theoretical or
doctrinaire considerations. They must be read in the context of the
provisions enacted in Part III in order to determine what are the rights
conferred by the provisions in that Part. Part III is headed "Fundamental
Rights" and it deals with fundamental rights under seven heads, namely,
right to equality, right to freedom, right against exploitation, right to
freedom of religion, cultural and educational rights, right to property and
right to constitutional remedies. Articles 19 to 22 occur under the heading
"Right to Freedom" and what is enacted in Article 21 is a right, namely, the
right to life and personal liberty. It is true that Article 21 is couched in
negative language, but it is axiomatic that to confer a right it is not
necessary to use any particular form of language. It is not uncommon in
legislative practice to use negative language for conferring a right. That is

25-06-2021 (Page 251 of 305) www.manupatra.com SOAS Library Library

often done for lending greater emphasis and strength to the legislative
enactment. One instance may be found in Section 298, Sub-section (1) of
the Government of India Act, 1935 which provided that no subject of His
Majesty domiciled in India shall on grounds only of religion, place of birth
descent, colour or any of them be ineligible for office under the Crown in
India, or be prohibited on any such grounds from acquiring, holding or
disposing of property or carrying on any occupation, trade, business or
profession in British India. Though this provision was couched in negative
language, the Judicial Committee of the Privy Council in Punjab Province v.
Daulat Singh 73 Indian Appeals 59 construed it as conferring a right on
every subject of His Majesty, domiciled in India.

516. Similarly, Article 14 also employs negative language and yet it was
construed to confer a fundamental right on every person within the territory
of India, S. R. Das, C.J., pointed out in Basheshar Nath v. The Commissioner
of Income Tax, Delhi & Rajasthan [1959] Su. (1) S. C. R. 529 that it is clear
from the language of Article 14 that "The command of that Article is directed
to the State and the reality of the obligation thus imposed on the State is
the measure of the fundamental right which every person within the
territory of India is to enjoy."
(emphasis supplied)
517. Article 31, Clause (1) is also couched in negative language : it is
almost in the same form as Article 21. Speaking about Article 31, S. R. Das,
J. observed in State of Bihar v. Maharajadhiraj Kameshwar Singh, of
Dharbhanga and Ors. MANU/SC/0019/1952 : [1952]1SCR889 . "It confers a
fundamental right in so far as it protects private property from State action.
The only limitation put upon the State action is the requirement that the
authority of law is prerequisite for the exercise of its power to deprive a
person of his property. This confers some protection on the owner, in that,
he will not be deprived of his property save by authority of law and this
protection is the measure of the fundamental right. It is to emphasise this
immunity from State action as a fundamental right (that the clause has
been worded in negative language ..." (emphasis supplied). If Article 31(1),
by giving a limited immunity from State action, confers a fundamental right,
it should follow equally on a parity of reasoning that Article 21 also does so.
In fact, this Court pointed out in so many terms in P. D. Shamdasani v.
Central Bank of India Ltd. MANU/SC/0017/1951 : [1952]1SCR391 : that
Clause (1) of Article 31 "is a declaration of fundamental right of private
property in the same negative form in which Article 21 declares the
fundamental right to life and liberty".

25-06-2021 (Page 252 of 305) www.manupatra.com SOAS Library Library

518. Then again in R. C. Cooper v. Union of India MANU/SC/0011/1970 :
[1970]3SCR530 this Court in a majority judgment to which ten out of eleven
judges were parties said:

--it is necessary to bear in mind the enunciation of the guarantee of

fundamental rights which has taken different forms. In some cases
it is an express declaration of a guaranteed right : Article 29(1),
30(1), 26, 25 and 32, in others to ensure protection of individual
rights they take specific forms of restrictions on State action--
legislative or executive --Articles 14, 15, 16, 20, 21, 22(1), 27 and
28; The enunciation of rights either express or by implication does
not follow a uniform pattern. But one thread runs through them;
they seek to protect the rights of the individual or groups of
individuals against infringement of those rights within specific
limits. Part III of the Constitution weaves a pattern of guarantees
on the texture of basic human rights.

This statement of the law establishes clearly and without doubts that Article
21 confers the fundamental right of personal liberty.

519. Let us, for a moment, consider what would be the consequences if
Article 21 were construed as not conferring a right to personal liberty. Then
there would be no fundamental right conferred by Article 21 and even if a
person is deprived of his personal liberty otherwise than in accordance with
the procedure established by law and there is infringement of Article 21,
such person would not be entitled to move the Supreme Court for a writ of
habeas corpus under Article 32, for that Article is available only for
enforcement of the rights conferred by Part III. That would be a startling
consequence, as it would deprive the Supreme Court of a wholesome
jurisdiction to protect the personal liberty of an individual against illegal
detention. Let it not be forgotten that the Supreme Court has exercised this
jurisdiction in a large number of cases over the last 25 years and set many
detenus at liberty where it found that they were illegally detained. All this
exercise of jurisdiction in the past would be rendered illegal and void. Ever
since the commencement of the Constitution, this Court has always
regarded Article 21 as conferring the fundamental right of personal liberty
which can be enforced in this Court by a petition under Article 32 and there
is no justification for departing from this well settled constructional position.

520. What then is the scope and ambit of this fundamental right conferred
by Article 21 ? The first question that arises in this connection is : what is
the meaning and content of the word 'personal liberty' in this Article ? This

25-06-2021 (Page 253 of 305) www.manupatra.com SOAS Library Library

question came up for consideration before a Bench of six judges of this
Court in Kharak Singh v. State of U.P. and Ors. MANU/SC/0085/1962 :
1963CriLJ329 . The majority judges took the view "that 'personal liberty' is
used in the Article as a compendious term to include within itself all the
varieties of rights which go to make up the 'personal liberties' of man other
than those dealt with in the several of clauses of Article 19 (1). In other
words, while Article 19(1) deals with particular species or attributes of that
freedom, 'personal liberty' in Article 21 takes in and comprises the residue".
The minority judges, however disagreed with this view taken by the majority
and explained their position in the following words : "No doubt the
expression 'personal liberty' is a comprehensive one and the right to move
freely is an attribute of personal liberty. It is said that the freedom to move
freely is carved out of personal liberty and, therefore, the expression
'personal liberty' in Article 21 excludes that attribute. In our view, this is not
a correct approach. Both are independent fundamental rights, though there
is overlapping. There is no question of one being carved out of another. The
fundamental right of life and personal liberty have many attributes and
some of them are found in Article 19. If a person's fundamental right under
Article 21 is infringed, the State can rely upon a law to sustain the action,
but that cannot be a complete answer unless the said law satisfies the test
laid down in Article 19(2) so far as the attributes covered by Article 19(1)
are concerned." There can be no doubt that in view of the decision of this
Court in R. C. Coopers case (supra) the minority view must be regarded as
correct and the majority view must be held to have been overruled. No
attribute of personal liberty can be regarded as having been carved out of
Article 21. That Article protects all attributes of personal liberty against
executive action which is not supported by law. It is not necessary for the
purpose of the present appeals to decide what those attributes are or to
identify or define them. It is enough to say that when a person is detained,
there is deprivation of personal liberty within the meaning of Article 21.

521. Now Article 21 gives protection against deprivation of personal liberty

but what is the nature and extent of this protection ? In the first place, it
may be noted that this protection is only against State action and not
against private individuals. Vide P. D. Shamdasani v. Central Bank of India
Ltd. (supra) and Smt. Vidya Verma v. Dr. Shiv Narain [1955] 2 S. C. R. 983
Secondly, it is clear from the language of Article 21 that the protection it
secures is a limited one. It says and I am quoting here only that part of the
Article which relates to personal liberty, that no one shall be deprived of his
personal liberty except by the procedure prescribed by law. The meaning of
the word 'law' as used in this Article came to be considered by this Court in
A. K. Gopalan v. State of Madras [1950] S. C. R. 88 and it was construed to

25-06-2021 (Page 254 of 305) www.manupatra.com SOAS Library Library

mean 'enacted law' or 'State law'. Kania, C.J., observed : "It is obvious that-
-law must mean enacted law", and to the same effect spoke Patanjali Sastri,
J., when he said : "In my opinion 'law' in Article 21 means 'positive or State
made law' ". So also Mukherjea, J., said that his conclusion was that "in
Article 21 the word 'law' has been used in the sense of State made law", and
Das, J. too expressed the view that law in Article 21 must mean State made
law. The only safeguard enacted by Article 21, therefore, is that a person
cannot be deprived of his personal liberty except according to procedure
prescribed by 'State made' law. If a law is made by the State prescribing the
procedure for depriving a person of his personal liberty and deprivation is
effected strictly in accordance with such procedure, the terms of Article 21
would be satisfied and there would be no infringement of the right
guaranteed under that Article.

522. Now, based on the phraseology "except according to procedure

established by law" in Article 21, an argument was advanced on behalf of
the detenus that it is only where procedure prescribed by the law has not
been followed in making the order of detention that Article 21 is attracted
and the right conferred by that Article is breached and not where an order of
detention is made without there being any law at ail or where there is a law,
outside the authority conferred by it. It was urged that where an order of
detention is challenged as mala fide or as having been made without the
requisite subjective satisfaction, the challenge would not be on the ground
of breach of the procedure prescribed by the Act but it would be on the
ground that the order of detention is outside the authority of the Act and
such a challenge would not be covered by Article 21. This argument is, in
my opinion, wholly unsustainable. It is clear on plain natural construction of
its language that Article 21 imports two requirements : first, there must be
a law authorising deprivation of personal liberty, and secondly, such law
must prescribe a procedure. The first requirement is indeed implicit in the
phrase "except according to procedure prescribed by law". When a law
prescribes a procedure for depriving a person of personal liberty, it must a
fortiori authorise such deprivation. Article 21 thus provides both substantive
as well as procedural safeguards. This was pointed out by Patanjali Sastri, J.
in A. K. Gopalan v. State of Madras (supra) at page 195 of the Report where
the learned Judge said:

If Article 21 is to be understood as providing only procedural

safeguards, where is the substantive right to personal liberty of
non-citizens to be found in the Constitution ? Are they denied such
right altogether ? If they are to have no right of personal liberty,
why is the procedural safeguard in Article 21 extended to them ?

25-06-2021 (Page 255 of 305) www.manupatra.com SOAS Library Library

 And where is that most fundamental right of all, the right to life,
provided for in the Constitution ? The truth is that Article 21, --
presents an example of the fusion of procedural and substantive
rights in the same provision--the first and essential step in a
procedure established by law for such deprivation must be a law
made by a competent legislature authorising such deprivation.

Mahajan, J. also pointed out in the same case at page 229 of the Report:

Article 21, in my opinion, lays down substantive law as giving

protection to life and liberty inasmuch as it says that they cannot be
deprived except according to the procedure established by law; in
other words, it means that before a person can be deprived of his
life or liberty as a condition precedent there should exist some
substantive law conferring authority for doing so and the law should
further provide for a mode of procedure for such deprivation.

S. R. Das, J. too spoke in the same strain when he negatived the argument
"that personal liberty as a substantive right is protected by Article 19(1) and
Article 21 gives only an additional protection by prescribing the procedure
according to which that right may be taken away." It would, therefore, be
seen that both the safeguards of Article 21, substantive as well as
procedural, have to be complied with in order that there should be no
infraction of the right conferred by that Article. Where there is a law
authorising deprivation of personal liberty, but a person is detained
otherwise than in conformity with the procedure prescribed by such law, it
would clearly constitute violation of Article 21. And so also there would be
breach of Article 21, if there is no law authorising deprivation of personal
liberty and yet a person is detained, for then the substantive safeguard
provided in the Article would be violated. therefore, when a detenu
challenges an order of detention made against him on the ground that it is
mala fide or is not preceded by the requisite subjective satisfaction, such
challenge would fall within the terms of Article 21.

523. It is also necessary to point out two other ingredients of Article 21. The
first is that there must not only be a law authorising deprivation of personal
liberty, but there must also be a procedure prescribed by law, or in other
words, law must prescribe a procedure. Vide observations of Fazal Ali, J. at
page 169, Pataujali Sastri, J. at page 205, Mahajan, J. at pages 229 and 230
and S. R. Das, J. at page 319 of the Report in A. K. Gopalan's case (supra).
Article 21, thus, operates not merely as a restriction on executive action
against deprivation of personal liberty without authority of law, but it also

25-06-2021 (Page 256 of 305) www.manupatra.com SOAS Library Library

enacts a check on the legislature by insisting that the law, which authorises
deprivation, must establish a procedure. What the procedure should be is
not laid down in this Article, but there must be some procedure and at the
least, it must conform to the minimal requirements of Article 22. Secondly,
'law' within the meaning of Article 21 must be a valid law and not only must
it be within the legislative competence of the legislature enacting it, but it
must also not be repugnant to any of the fundamental rights enumerated in
Part III, Vide Shambhu Nath Sarkar v. The State of West Bengal
MANU/SC/0163/1973 : [1974]1SCR1 and Khudiram Das v. The State of
West Bengal and Ors. MANU/SC/0423/1974 : [1975]2SCR832

524. It was contended by Mr. Jethmalani on behalf of some of the detenus

that when a Presidential Order suspends enforcement of the right conferred
by Article 21, its effect is merely to suspend enforcement of the aforesaid
two ingredients and, therefore, the only claims which a detenu is interdicted
from enforcing, whilst the Presidential Order is in operation, are : (1) that
the law authorising deprivation does not prescribe a procedure, and (2) that
it does not impose reasonable restrictions on the freedom guaranteed under
Article 19. This contention is plainly erroneous and does not need much
argument to refute it. In the first place, the requirement that the law which
authorises deprivation of personal liberty should not fall foul of Article 19, or
for the matter of that, with any other fundamental right set out in Part III, is
not a requirement of Article 21, but it is a requirement of Article 13.
Secondly, the effect of suspension of enforcement of Article 21 by the
Presidential Order is that no one can move any court for enforcement of the
right conferred by Article 21, whilst the Presidential Order is in operation.
The right conferred by Article 21 is the right not to be deprived of personal
liberty except according to procedure prescribed by law. therefore, when the
executive detains a person without there being any law at all authorising
detention or if there is such law, otherwise than in accordance with its
provisions, that would clearly be in violation of the right conferred by Article
21 and such violation would a fortiori be immune from challenge by reason
of the Presidential Order: It must follow inevitably from this that when a
detenu challenges an order of detention on the ground that it is mala fide or
is not in accordance with the provisions of the Act or is outside the authority
conferred by the Act, he would be seeking to enforce the right of personal
liberty conferred on him under Article 21 and that would be inhibited by the
Presidential Order.

525. That takes me to a consideration of the concept of the rule of law on

which so much reliance was placed on behalf of the detenus in order to save
their writ petitions from the lethal effect of the Presidential Order. The

25-06-2021 (Page 257 of 305) www.manupatra.com SOAS Library Library

contention on behalf of the detenus was that their writ petitions were for
enforcement of the right of the personal liberty based on the principle of the
rule of law that the executive cannot interfere with the liberty of a person
except by authority of law and that was not within the inhibition of the
Presidential Order. The question is : what is this principle of the rule of law
and does it exist under our Constitution as a distinct and separate
constitutional principle, independently and apart from Article 21, so as to be
capable of enforcement even when enforcement of Article 21 is suspended
by the Presidential Order.

526. The Great Charter of Liberties of England, commonly known as the

Magna Carta, was granted under the seal of King John in the meadow called
Runnymede on 15th June, 1215. This was followed within a couple of years
by a revised version of the Charter which was issued in the name of Henry
III in 1217 and ultimately with slight amendments, another Charter was re-
issued by Henry III in 1225 and that document has always been accepted as
containing the authorised text of Magna Carta. Whenever reference is made
to Magna Carta, it is to the Charter of 1225 which is also described as "9
Henry III (1225)". Magna Carta, according to Sir Ivor Jennings symbolises
"what we should now call the rule of law, government according to law or
constitutional government" which means that all power should come from
the law and that "no man, be he king or minister or private person is above
the law". It recognised that "the liberties of England, which means the
liberties of all free men--depended on the observance of law by King, lord
and commoner alike", and "without law there is no liberty". Cap. XXTX
contains the famous clause of the Magra Carta which provided that: "No free
man shall be taken, or imprisoned, or dispossessed, of his free tenement, or
liberties, or free customs, or be outlawed, or exiled, or in any way
destroyed; nor will we condemn him. nor will we commit him to prison,
excepting by the legal judgment of his peers, or by the laws of the land."
Thus, for the first time the great principle was enunciated--though even
before, it was always part of the liberties of the subject--that no one shall be
imprisoned or deprived of his liberty except by the authority of the law of
the land. The power of the King to arrest a person or to deprive him of his
liberty was circumscribed by law. That is why Bracton said about the middle
of the 13th Century "--the king himself ought not to under man but under
God and under the law, because the law makes the King. therefore, let the
King attribute to the law what the law attributes to the King, namely,
lordship and power, for there is no king where will governs and not law".
Magna Carta was confirmed again by the successive kings on the insistence
of Lords and commons and. the rule of law embodied in Magna Carta
governed the actions of the King vis-a-vis his subjects. But this great

25-06-2021 (Page 258 of 305) www.manupatra.com SOAS Library Library

principle of liberty was placed in jeopardy in the 17th Century when a claim
was made by the King that he had a prerogative right to arrest and detain a
subject and this prerogative right was necessary for the defence of the
Realm. When the King sought to raise moneys from the subjects without the
sanction of the Parliament, it was resisted by Darnel and others and they
were on that account committed to prison under the orders of the King. On
the application of these persons, who were so imprisoned, a writ of habeas
corpus was issued and the return made to it on behalf of the King was that
they were imprisoned per special mandate Domini Regis (1627 St. Tr. I
warnel's case). This return was considered sufficient and the writ was
discharged. The effect of this decision was that King needed no authority of
law in order to deprive a subject of his personal liberty. But the Parliament
was quick to nullify this decision by enacting the Petition of Right, 1628 and
it reaffirmed the right to personal liberty in Section 3 of that Act and
declared such a cause of imprisonment to be unlawful. The principle that the
Executive cannot interfere with the liberty of a subject unless such
interference is sanctioned by the authority of law was thus restored in its full
vigour.

527. Blackstone in his Commentaries on the Laws of England, vol. 1, 4th ed.
p. 105 stated the principle in these terms:

-- the law of England regards, asserts and preserves the personal

liberty of individuals. This personal liberty consists in the power of
locomotion, of changing situation, or removing one's person to
whatsoever place one's own inclination may direct; for
imprisonment or restraint, unless by due course of law--It cannot
ever be abridged at the mere discretion of the magistrate, without
the explicit permission of the laws. Here again, the language of the
Great Charter is, that no free man shall be taken or imprisoned, but
by the lawful judgment of his equals, or by the law of the land.

(emphasis supplied)
Since then, the validity of this principle has never been doubted and the
classical statement of it is to be found in the oft-quoted passage from the
judgment of Lord Atkin in Eshugbayi (Eleko) v. Officer Administering the
Government of Nigeria (supra) where the learned Law Lord said:

The Governor acting under the Ordinance acts solely under

executive powers, and in no sense a Court. As the executive he can
only act in pursuance of the powers given to him by law. In
accordance with British jurisprudence no member of the executive

25-06-2021 (Page 259 of 305) www.manupatra.com SOAS Library Library

 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.

Since in this country prior to the commencement of the Constitution, we

were administering British jurisprudence, this constitutional principle was
equally applicable here. That was the direct result of the binding authority of
the decision of the Privy Council in the aforementioned case. But quite apart
from that, the courts in India uniformly accepted this constitutional principle
as part of the law of the land. Vide Secretary of State for India v. Hari
Bhanji [1882] I. L. R. 5 Mad. 273 and Province of Bombay v. Khushaldas
Advani MANU/SC/0034/1950 : [1950]1SCR621 . Bose, J., in P. K. Tare v.
Emperor MANU/NA/0067/1942 quoted with approval the aforesaid passage
from the judgment of Lord Atkin and pointed out that before the executive
can claim power to override the rights of the subject "it must show that the
legislature has empowered it to do so". The learned Judge also referred to
the following passage from the dissenting judgment of Lord Atkin in
Liversidge v. Anderson [1942] 42 A. C. 206 "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 respecter of persons
and stand between the subject and any attempted encroachments on his
liberty by the executive; alert to see that any coercive action is justified in
law." (emphasis supplied), and, pointing out that Lord Macmillan and Lord
Wright also agreed with this principle, observed that these principles of
liberty "to which Lord Atkin refers, apply as much to India as elsewhere". So
also in Vimlabai Deshpande v. Emperor A. I. R. 1945 Nag. 8 the same two
passages, one from the judgment of Lord Atkin in Eshugbayi's case (supra)
and the other from the judgment in Liversidge's case (supra) were referred
to with approval by Bose and Sen, JJ.

528. It was also accepted by a Division Bench of the Calcutta High Court
consisting of Malik and Remfry, JJ. in Jitendranath Ghosh v. The Chief
Secretary to the Government of Bengal I. L. R. 60 Cal. 364that "-in
accordance with British jurisprudence, and with the jurisprudence of British
India, no member of the executive can interfere with the liberty or property
of a British subject, or of a foreigner in our land, except on the condition
that he can, and, if duly called upon, must support the legality of his action
before a court of justice". The Division Bench pointed out that "the courts
can, and in a proper case must, consider and determine the question

25-06-2021 (Page 260 of 305) www.manupatra.com SOAS Library Library

whether there has been a fraud on an Act or an abuse of powers granted by
the legislature, Eshugbayi Eleko's case".

529. Ameer Ali, A.C.J., and S. R. Das, J. also quoted with approval In re :
Banwarilal Roy (48 Cal. Weekly Notes 766 at 780) the aforesaid passage
from the judgment of Lord Atkin in Eshugbayi Eleko's case (supra) and
relied on the decision in Jitendranath Ghosh's case (supra) and particularly
the observations from the judgment in that case which I have just
reproduced. These observations clearly show that in our country, even in pre
Constitution days, the executive was a limited executive, that is, an
executive limited by law and it could act only in accordance with law.

530. It would be seen from the above discussion that, even prior to the
Constitution, the principle of rule of law that the executive cannot act to the
prejudice of a person without the authority of law was recognised as part of
the law of the land and was uniformly administered by the courts. It was
clearly 'law in force' and ordinarily, by reason of Article 372, it would have
continued to subsist as a distinct and separate principle of law even after
the commencement of the Constitution. But when the Constitution was
enacted, some aspects of this principle of rule of law were expressly
recognised and given constitutional embodiment in different Articles of the
Constitution.. Thereafter they did not remain in the realm of unwritten law.
Article 21 enacted one aspect of the principle of rule of law that executive
cannot deprive a person of his life or personal liberty without authority of
law and added a requirement that the law which authorises such deprivation
must prescribe a procedure. Another aspect of the principle of rule of law
was enacted in Clause (1) of Article 31. namely, that no one shall be
deprived of his property save by authority of law. That is why it was pointed
out by Shah, J. in R .C. Cooper's case (supra) that "Clauses (1) and (2) of
Article 31 subordinate the exercise of the power of the State to the basic
concept of the rule of law". A third aspect was constitutionailsed in various
sub-clauses of Clause (1) of Article 19 inhibiting executive action
unsupported by law, which conflicted with the different freedoms guaranteed
in these sub-clauses. Then Article 265 recognised and enacted a yet fourth
aspect, namely, that no tax shall be levied and collected without authority of
law. Article 19, Clause (1), Article 21, Article 31, Clause (1) and Article 265
thus embody different aspects of the principle of rule of law. We are
concerned in these appeals only with Article 21 and, therefore, I shall
confine my discussion only to that Article.

531. Now, to my mind, it is clear that when this principle of rule of law that
the executive cannot deprive a person of his liberty except by authority of

25-06-2021 (Page 261 of 305) www.manupatra.com SOAS Library Library

law, is recognised and embodied as a fundamental sight and enacted as
such in Article 21, it is difficult to comprehend how it could continue to have
a distinct and separate existence, independently and apart from this Article
in which it has been given constitutional vesture. I fail to see how it could
continue in force under Article 372 when it is expressly recognized and
embodied as a fundamental right in Article 21 and finds a place in the
express provisions of the Constitution. Once this principle is recognised and
incorporated in the Constitution and forms part of it, it could not have any
separate existence apart from the Constitution, unless it were also enacted
as a statutory principle by some positive law of the State.
This position indeed become incontrovertible when we notice that, while
recognising and adopting this principle of rule of law as a fundamental right,
the Constitution has defined its scope and ambit and imposed limitation on
it in the shape of Article 359A, clauses (1) and (1A). When the Constitution
makers have clearly intended that this right should be subject to the
limitation imposed by Article 359, Clause (1) and (1A), it would be contrary
to all canons of construction to hold that the same right continues to exist
independently, but free from the limitation imposed by Article 359, Clauses
(1) and (1A). Such a construction would defeat the object of the
Constitution makers in imposing the limitation under Article 359, Clauses (1)
and (1A) and make a mockery of that limitation. The consequence of such a
construction would be that, even though a Presidential Order is issued under
Clause (1) of Article 359 suspending the right to move the court for
enforcement of the right guaranteed under Article 21, the detenu would be
entitled to ignore the Presidential Order and challenge the order of the
detention on the ground that it is made otherwise than in accordance with
law, which is precisely the thing which is sought to be interdicted by the
Presidential Order. The Presidential Order would in such a case become
meaningless and ineffectual. Can an interpretation be accepted which would
reduce to futility Article 359, Clause (1) in its application in relation to
Article 21 ? Could the Constitution makers have intended such a meaning ?
The only explanation which could be offered on behalf of the detenus was
that the object of Article 359, Clause (1) is merely to prevent a person from
moving the Supreme Court under Article 32 for enforcing the right of
personal liberty and it is not intended to effect the enforcement of the right
of personal liberty based on the rule of law by moving the High Court under
Article 226. But this explanation is-wholly unconvincing. It is difficult to
understand why the Constitution makers should have intended to bar only
the right to move the Supreme Court under Article 32 in so far as the right
of personal liberty is concerned. There would be no point in preventing a
citizen from moving the Supreme Court directly under Article 32 for securing
his release from illegal detention, While at the same time leaving it open to

25-06-2021 (Page 262 of 305) www.manupatra.com SOAS Library Library

him to move the High Court for the same relief and then to come to the
Supreme Court In appeal, if necessary. That would be wholly irrational and
meaningless. therefore, the only way in which meaning and effect can be
given to the Presidential Order suspending the enforcement of the right of
personal liberty guaranteed under Article 21 is by holding that the principle
of rule of law, that the executive cannot interfere" with the personal liberty
of any person except by authority of law, is enacted in Article 21 and it does
not exist as a distinct and separate principle conferring a right of personal
liberty, independently and apart from that Article. Consequently, when the
enforcement of the right of personal liberty conferred by Article 21 is
suspended by a Presidential Order, the detenu cannot circumvent the
Presidential Order and challenge the legality of his detention by falling back
on the supposed right of personal liberty based on the principle of rule of
law.

532. It was also said on behalf of the detenus that under our constitutional
set up, the executive is bound to act in accordance with law and this
obligation of the executive arises from the very basis of the doctrine of
distribution of powers amongst different bodies created by the Constitution
as also from the terms of Articles 73, 154 and 256 of the Constitution. This
obligation, contended the detenus, could be enforced against the executive
under Article 226 by issue of a writ "for any other purpose". Now, it is true
that under our Constitution, the executive is a limited executive and it is
bound to act in accordance with law and cannot disobey it. If the
Maintenance of Internal Security Act, 1971 says that the executive shall be
entitled to detain a person only on the fulfilment of certain conditions and
according to a specified procedure, it cannot make an order of detention if
the prescribed conditions are not fulfilled or the specified procedure is not
followed. The executive is plainly and indubitably subordinated to the law
and it cannot flout the mandate of the law but must act in accordance with
it. The Judicial Committee of the Privy Council pointed out this constitutional
position in Eastern Trust Company v. Mckenzie Mann & Co. Ltd. [1915] A. c.
750 in an appeal from the Supreme Court of Canada : "The non-existence of
any right to bring the Crown into Court--does not give the Crown immunity
from all law, or authorize the interference by the Crown with private rights
at its own mere will--It is the duty of the Crown and of every branch of the
Executive to abide by and obey the law. (emphasis supplied)". This rule
must naturally apply with equal force in our constitutional set up and that
was recognised by this Court in Rai Sahib Rain Jawaya Kapur v. The State of
Punjab MANU/SC/0011/1955 : [1955]2SCR225 where Mukherjea, J.,
speaking on behalf of the Court said : "In India, as in England, the executive
has to act subject to the control of the legislature" and proceeded to add : "-

25-06-2021 (Page 263 of 305) www.manupatra.com SOAS Library Library

-the executive Government are bound to conform not only to the law of the
land but also to the provisions of the Constitution--" In Bharat Singh's case
(supra) also, this Court pointed out : "Our federal structure is founded on
certain fundamental principles : (1) the sovereignty of the people with
limited Government authority i.e. the Government must be conducted in
accordance with the will of the majority of the people. The people govern
themselves through their representatives, whereas the official agencies of
the executive Government possess only such powers as have been conferred
upon them by the people; (2) There is distribution of powers between the
three organs of the State--Legislative, executive and judicial--each organ
having some check direct or indirect on the other; and (3) the rule of law
which includes judicial review of arbitrary executive action". The obligation
of the executive to act according to law and not to flout or disobey it is,
therefore, unexceptionable and cannot be disputed. But this obligation, in so
far as personal liberty is concerned., is expressly recognised and enacted as
a constitutional provision inter alia in Article 21 and when the Constitution
itself has provided that the enforcement of this obligation may be suspended
by a Presidential Order, it is difficult to see how the intention of the
Constitution makers can be allowed to be defeated by holding that this
obligation exists independently of Article 21 and it can be enforced despite
the limitation imposed by the constitutional provision The same reasoning
which I have elaborated in the preceding paragraph would equally apply to
repel the present argument.

533. Before I go to the decided cases, I must refer to one argument which
strongly supports the view I am taking. It is almost conclusive. It is an
argument for which I must express my indebtedness to Prof. P. K. Tripathi.
In an Article written on 'Judicial and Legislative Control over the Executive
during Martial Law' and published in the Journal Section of All India Reporter
at page 82, Prof. P. K. Tripathi has suggested that considerations of Martial
Law may support the conclusion that a Presidential Order mentioning Article
21 takes away, wholly and completely, the right of an individual to obtain a
writ of habeas corpus challenging the legality of his detention. I must of
course hasten to make it clear that there is no Martial law anywhere in the
territory of India at present and I am referring to it only in order to buttress
the conclusion otherwise reached by me. The concept of Martial law is well
known in the British and Americas jurisprudence. When a grave emergency
arises in which the executive finds itself unable to restore order by
employing the ordinary civilian machinery and it becomes necessary for it to
use force, it may declare what is commonly termed 'martial law'. Martial law
means that the executive calls the military to its aid and the military, acting
under the general authority of the executive, proceeds to quell violence by

25-06-2021 (Page 264 of 305) www.manupatra.com SOAS Library Library

violence. When martial law is in force, it is well settled that the courts
cannot issue a writ of habeas corpus or otherwise interfere with the military
authorities or the executive to protect the life or liberty of an individual,
even if illegal or mala fide action is taken or threatened to be taken by the
military authorities or the executive. To give only one example : In Ireland
in John Allan's case [1921] 2 Irish. Reports 241, the martial law authorities
ordered all persons to deposit their fire arms within twenty-four hours with
the army authorities on pain of death. John Allen, who failed to obey, was
arrested and sentenced by the military tribunal, which was, in law, a mere
body of army men advising the officer commanding, to death, and the
martial law authorities announced the day and date when he was to be
executed. The court was moved on behalf of John Allen on the ground that
the order of the military tribunal was invalid, but the court refused to
interfere on the theory that when martial law is properly declared, the court
will not issue habeas corpus during the period when martial law is in force.
It is the basic characteristic and essence of martial law that during the time
that it is in force, the individual cannot enforce his right to life and liberty by
resorting to judicial process and the courts cannot issue the writ of habeas
corpus or pass any similar orders.

534. Now, under our Constitution there does not appear to be any express
provision conferring power on the executive to declare martial law. But it is
implicit in the text of Article 34 of the Constitution that the Government may
declare martial law in any area within the territory of India. What are the
legal implications and consequences of declaration of martial law is not
provided any where in the Constitution. It is, therefore, obvious that merely
declaring martial law would not, by itself, deprive the courts of the power to
issue the writ of habeas corpus or other process for the protection of the
right of the individual to life and liberty. In our country, unlike England, the
right to life and liberty is secured as a fundamental right and the right to
move the Supreme Court for enforcement of this right is also guaranteed as
a fundamental right. Also the power to issue a writ or order in the nature of
habeas corpus has been expressly conferred on the High Courts by a
constitutional provision, namely, Article 226. therefore, the declaration of
martial law, which is not even expressly provided in the Constitution, cannot
override the provisions of the Article conferring the right to life and liberty
as also of Articles 32 and 226 and, unless the right of an individual to move
the courts for enforcement of the right to life and liberty can be suspended
or taken away by or under an express provisions of the Constitution, the
individual would be entitled to enforce the right to life and liberty under
Article 32 or Article 226 or by resorting to the ordinary process of law, even
during martial law. That would be contradictory of the basic and essential

25-06-2021 (Page 265 of 305) www.manupatra.com SOAS Library Library

feature of martial law and make it impossible to impose effective martial law
anywhere at any time in the territory of India. Such a consequence could
never have been imagined by the Constitution makers. They could never
have intended that the Government should have the power to declare
martial law and yet it should be devoid of the legal effect which must
inevitably follow when martial law is in force. Moreover, Article 34 itself
presupposes that acts contrary to law may be committed by the military
authorities or the executive during the time when martial law is in force and
that is why it provides that after the martial law ceases to be in force,
Parliament may by law indemnify "any person in the service of the Union or
of a State or any other person in respect of any act done by him in
connection with the maintenance or restoration of order in any area--where
martial law was in force or validate any sentence passed, punishment
inflicted, forfeiture ordered or other act done under martial law in such
area". This provision clearly postulates that during the time that martial law
is in force, no judicial process can issue to examine the legality of any act
done by the military authorities or the executive in connection with the
maintenance or restoration of order. But, how is this result to be achieved
under the Constitution ?

535. The only provision in the Constitution which authorises temporary

suspension or taking away of the right of an individual to move any court for
enforcement of his right to life and liberty is Article 359, Clause (1). If the
Presidential Order under Clause (1) of Article 359 suspending enforcement
of the fundamental right under Article 21 were construed not to have the
effect of barring an individual from moving the court for impugning the
legality of the act of the executive interfering with his life or liberty, on the
assumption that in doing so, he is merely enforcing his right to life or
personal liberty based on the rule of law, the result would be that even
when and where martial law is in force, courts will continue to have the
power to examine the legality of the act of the executive, because, as
explained earlier, the mere declaration of martial law does not, under our
Constitution, have the effect of taking away that power. That would be
plainly an insufferable situation which would carry the power of courts even
beyond that claimed by the United States courts in the case of the ex parte
Milligan (1866) 4 Wallace 2 which case went to the farthest limit and which
has for that reason been criticised by great authorities like E. S. Corwin and
has not been consistently followed even by the United States Supreme Court
Vide Moyer v. Peabody (1909) 212 U. S. 76 and Duncan v. Kohan-meku
(1945) 327 U. S. 304. There can be no two opinions that during martial law
the courts cannot and should not have power to examine the legality on the
action of the military authorities or the executive on any ground whatsoever,

25-06-2021 (Page 266 of 305) www.manupatra.com SOAS Library Library

including the ground of mala fide. But, if the courts are to be prevented
from exercising such power during martial law, that situation can be brought
about only by a Presidential Order issued under Article 359, Clause (1) and
in no other way and the Presidential Order in so far as it suspends the
enforcement of the right of personal liberty conferred under Article 21 must
be construed to bar challenge to the legality of detention in any court,
including the Supreme Court and the High Courts, whilst the Presidential
Order is in operation.

536. I may also in this connection refer to the decision of the House of Lords
in Attorney General v. De Keyser's Royal Hotel [1920] A. C. 508. There, in
May 1916, the Crown, purporting to act under the Defence of Realm
Consolidation Act, 1914 and the Regulations made thereunder took
possession of a hotel for the purpose of housing the Headquarters'
personnel of the Royal Flying Corps and denied the legal right of the owners
to compensation. The owners yielded up possession under protest and
without prejudice to their right and by a Petition of Right, they asked for a
declaration that they were entitled to compensation under the Defence Act,
1842. The Crown was plainly liable to pay compensation under the Statute,
but it sought to justify its action in taking possession of the hotel without
payment of compensation, under the sanction of the Royal Prerogative. The
question which, therefore, arose for consideration before the House of Lords
was whether the Royal Prerogative was available to the Crown for taking
possession of the hotel without compensation, when the statute authorised
taking of such possession but on condition on payment of compensation.
The House of Lords unanimously held that, in view of the statutory provision
on the subject, the Royal Prerogative to take property without payment of
compensation did not subsist and the principle laid down was that where by
Statute, the Crown is empowered to do what it might heretofore have done
by virtue of its prerogative, it can no longer act under the prerogative and
must act under and subject to the conditions imposed by the statute. Lord
Dunedin in the course of his speech observed:

None the less, it is equally certain that if the whole ground of

something which could be done by the prerogative is covered by the
statute, it is the statute that rules.

Lord Atkinson quoted with approval the following pregnant passage from the
judgment of the Master of the Rolls in the same case:

Those powers which the executive exercises without Parliamentary

authority are comprised under the comprehensive term of the

25-06-2021 (Page 267 of 305) www.manupatra.com SOAS Library Library

 prerogative. Where, however, Parliament has intervened and has
provided by statute for powers, previously within the prerogative,
being exercised in a particular manner and subject to the limitations
and provisions contained in the statute, they can only be so
exercised. Otherwise, what use would there be in imposing
limitations, if the Crown could at its pleasure disregard them and
fall back on prerogative ?

and pointed out that the question posed by the Master of the Rolls was
unanswerable. The learned Law Lord then proceeded to add:

It is quite obvious that it would be useless and meaningless for the

Legislature to impose restrictions and limitations upon, and to
attach conditions to, the exercise by the Crown of the powers
conferred by a statute, if the Crown were free at its pleasure to
disregard these provisions, and by virtue of its prerogative do the
very thing the statutes empowered it to do.

The other learned Law Lords who participated in the decision also made
observations to the same effect in the course of their speeches.

537. Now it is obvious that the contention of the detenus in the present case
is very similar to that advanced on behalf of the Crown in De Keyser's Royal
Hotel's case (supra). It almost seems to be an echo of that contention and it
must inevitably be answered the same way. When the right of personal
liberty based on the rule of law which existed immediately prior to the
commencement of the Constitution has been enacted in the Constitution as
a fundamental right in Article 21 with the limitation that, when there is a
Proclamation of emergency, the President may, by Order under Article 359,
Clause (1) suspend its enforcement, it is impossible to imagine how that
right of personal liberty based on the rule of law can continue to exist as a
distinct and independent right free from the limitation as to enforcement
contained in Article 359, Clause (1). It would be meaningless and futile for
the Constitution makers to have imposed this limitation in regard to
enforcement of the right of personal liberty guaranteed by Article 21, if the
detenu could, with impunity, disregard such limitation and fall back on the
right of personal liberty based on the rule of law.

538. There is a decision of this Court in Dhimbha Devisingh Gohil v. The

State of Bombay MANU/SC/0032/1954 : [1955]1SCR691 which clearly
supports this view. The question which arose for determination in this case
was whether the Bombay Taluqdari Tenure Abolition Act, 1949 was a valid

25-06-2021 (Page 268 of 305) www.manupatra.com SOAS Library Library

piece of legislation. When this Act was enacted by the Bombay Legislature,
the Government of India Act, 1935 was in force and the validity of this Act
was challenged on the ground that it was in violation of Section 299, Sub-
section (2) of the Government of India Act, 1934. Since this Act was
included in the Ninth Schedule to the Constitution by the Constitution of
India (First Amendment) Act, 1951, the State contended that by reason of
Article 31-B, this Act was immune from attack of the kind put forward on
behalf of the petitioner. Article 31-B provides inter alia that none of the Acts
specified in the Ninth Schedule nor any of the provisions thereof shall be
deemed to be void or ever to have become void on the ground that such act
or provision is inconsistent with or takes away or abridges any of the right
conferred by any provisions of Part III. The petitioner disputed the
applicability of Article 31-B on the ground that the protection under that
Article was confined only to "9 challenge based on the provisions of Part III
of the Constitution and did not extend to a challenge based on violation of
Section 299, Sub-section (2) of the Government of India Act, 1935. The
petitioner relied on the words "-- is inconsistent with or takes away or
abridges any rights conferred by any provisions" of Part III and contended
that inconsistency with or taking away or abridgement of the right conferred
by s. 299, Sub-section (2) of the Government of India Act, 1935 was not
within the protection of Art 31-B. This contention of the petitioner was
negatived and it was held by this Court speaking through Jagannatha Das,
J.:

When Article 31-B protects is not a mere "contravention of the

provisions" of Part III of the Constitution but an attack on the
grounds that the impugned Act is "inconsistent with or takes away
or abridges any of the rights conferred by any provisions of this
Part." One of the rights secured to a person by Part III of the
Constitution is a right that his property shall be acquired only for
public purposes and under a law authorising such acquisition and
providing for compensation which is either fixed by the law itself or
regulated by principles specified by the law. That is also the very
right which was previously secured to the person under Section 299
of the Government of India Act. The challenge now made to the
validity of the impugned Act is based on the alleged violation of that
right."--" But it is urged, that even so, Article 31-B protects only the
violation of the fundamental right in so far as "it was conferred by
Part III of the Constitution" and that this right cannot be said to
have been "conferred" by the Constitution. We cannot agree with
this contention. This is clearly a case where the concerned right
which was secured under Section 299 of the Government of India

25-06-2021 (Page 269 of 305) www.manupatra.com SOAS Library Library

 Act in the form of a fetter on the competency of the Legislature and
which in substance was a fundamental right, was lifted into the
formal category of a fundamental right along with other
fundamental rights recognised in the present Constitution. There is
therefore nothing inappropriate in referring to this right which was
preexisting, along with the other fundamental rights for the first
time secured by this Constitution, when grouping them together, as
fundamental rights "conferred" by the Constitution.

This Court held that when Article 31-B protected the Act against attack on
the ground that the Act is "inconsistent with or takes away or abridges any
of the rights conferred by any provisions of "Part III, the protection
extended to giving immunity against violation of the right secured by
Section 299, Sub-section (2) of the Government of India, 1935 because that
was the very right lifted into the category of fundamental right and enacted
as Article 31, Clause (2) of the Constitution and it could accordingly with
appropriateness, be referred to as the right conferred by Article 31, Clause
(2). On the parity of reasoning, it may be said that the right based on the
principle of rule of law that no one shall be deprived of his life or personal
liberty except by authority of law, which was a pre-existing right, was lifted
into the category of fundamental right and enacted as Article 21 and hence
it became a fundamental right conferred by Article 21 and ceased to have
any distinct and separate existence.

539. The maxim 'expressum facit cessare taciturn' that is what is expressed
makes what is silent cease, would also clearly be applicable in the present
case. This maxim is indeed a principle of logic and common sense and not
merely a technical rule of construction. It was applied in the construction of
a constitutional provision in Shankara Rao Badami v. State of Mysore
MANU/SC/0022/1968 : [1969]3SCR1 . The argument which was advanced
in that case was that the existence of public purpose and the obligation to
pay compensation were necessary concomitants of compulsory acquisition of
private property and so the term 'acquisition' in Entry 36 of List II of the
Seventh Schedule to the Constitution must be construed as importing by
necessary implication the two conditions of public purpose and payment of
adequate compensation, and consequently, the Mysore (Personal and
Miscellaneous) Inams Abolition Act, 1955, which provided for acquisition of
the rights of the inamdars in inam estates in Mysore State without payment
of just and adequate compensation was beyond the legislative competence
of the State Legislature. This argument was rejected on the ground that the
limitations of public purpose and payment of compensation being expressly
provided for as conations of acquisition in Article 31(2), there was no room

25-06-2021 (Page 270 of 305) www.manupatra.com SOAS Library Library

for implying either of these limitations in the interpretation of the term
'acquisition' in Entry 36 of List II. Ramaswamy, J., speaking on behalf of the
Court observed:

It is true that under the Common law of eminent domain as

recognised in Anglo-Saxon jurisprudence the State cannot take the
property of its subject unless such property is required for a public
purpose and without compensating the owner for its loss. But when
these limitations are expressly provided for in Article 32(2) and it is
further enacted that no law shall be made which takes away or
abridges these safeguards, and any such law, if made, shall be void,
there can be no room for implication, and the words 'acquisition of
property' in entry 36 must be understood in their natural sense of
the act of acquiring property, without importing into the phrase an
obligation to pay compensation or a condition as to the existence of
a public purpose. In other words, it is not correct to treat the
obligation to pay compensation as implicit in the legislative entry 33
of List I or legislative entry 36 of List II for it is separately and
expressly provided for in Article 31(2). The well known maxim
expresum facit cessare taciturn is indeed a principle of logic and
commonsense and not merely a technical rule of construction. The
express provision in Article 31(2) that a law of acquisition .in order
to be valid must provide for compensation will, therefore,
necessarily exclude all suggestion of an implied obligation to
provide for compensation sought to be imported into the meaning
of the word "acquisition" in entry 36 of List II. In the face of the
express provision of Article 31(2), there remains no room for
reading any such implication in the legislative heads.

Similarly, in the present case, on an application of the maxim expressum

facit cessare taciturn, the express provision in Article 21 that no person shall
be deprived of his life or personal liberty except according to procedure
prescribed by law will necessarily exclude a provision to the same effect to
be gathered or implied from the other provisions of the Constitution.

540. I find myself fortified in this conclusion by the view taken on a similar
question under the Irish Constitution which also contains a catena of Articles
conferring fundamental rights Kelly in his book one. 'Fundamental Rights in
the Irish Law and Constitution' points out "that the various fundamental
fights which were previously notionally present in the common law have
been subsumed in and replaced by the written guarantees" and, therefore.,
these rights cannot be found elsewhere than in the Constitution. The

25-06-2021 (Page 271 of 305) www.manupatra.com SOAS Library Library

decision of the High Court of Justice in Ireland in 'State (Walsh and Ors.) v.
Lennon and Ors. 1942 Irish Reports 112 has also adopted the same view.
The petitioners in this case, who were detained in Arbour Hill Military
Detention Barracks awaiting trial on a charge of murder before a Military
Court established under emergency Powers (No. 41) Order, 1940, made an
application to the High Court for an order of habeas corpus directed to the
Governor of the Detention Barracks in which they were held and for an order
of prohibition directed to the President and members of the Military Court
before whom it was ordered by emergency Powers (No. 41F) Order, 1941
that they should be tried. The application inter alia challenged the validity of
the emergency Powers (No. 41 F) Order, 1941 on the ground that it was
ultra vires the Government, as it directed that the Military Court, which was
to try the petitioners, should try them together and so precluded the Court
from exercising its discretion and control over its own procedure and was
thus violativc of the right of a citizen to insist that he shall not be tried on a
criminal charge save in due course of law and was, also in conflict with the
right of a citizen to personal liberty. The right of personal liberty was
guaranteed by Article 40, Section 4, Sub-section (1) of the Constitution,
while the right of a citizen charged with a criminal offence to insist that he
shall not be tried save in due course of law was to be found in Article 38,
Section 1. The respondents relied on Article 28, Section 3, Sub-section (;3)
of the Constitution which provided : "Nothing in this Constitution shall be
invoked to invalidate any law enacted by the Oireachtas which is expressed
to be for the purpose of securing the public safety and the preservation of
the State in time of war or armed rebellion or to nullify any act done or
purported to be done in pursuance on any such law." and contended that by
reason of this provision, the emergency Powers (No. 41 F) Order, 1941 was
protected from challenge on the ground of contravention of Article 38,
Section 1 and Article 40, Section 4, Sub-section (1) of the Constitution. This
contention clearly had the effect of putting the petitioners out of court and.,
therefore, they sought to get round this difficulty by arguing that the
constitutional rights, which they claimed to have been infringed were
derived not from the written constitution, but from the Common Law, and
consequently. Article 28, Section 3, Sub-section (3) of the Constitution did
not stand in their way. This argument, which was very similar to the present
argument advanced before us, was unhesitatingly rejected by all the three
judges who took part in the decision. Maguire J. said:--

The contention is that the constitutional principles which assure to a

citizen his personal liberty., his right to resort to this Court for an
order of habeas corpus, his right that he shall not be tried on a
criminal charge save in due course of law, have as their source the

25-06-2021 (Page 272 of 305) www.manupatra.com SOAS Library Library

 Common Law, and exist side by side with these rights in the written
Constitution. In support of this contention reliance is placed on the
decision of the Supreme Court in Burke's Case (1940) I.R. 136,
particularly on the passage in the judgment of Murnaghan J. at p.
171, where he says 'certain constitutional principles are stated in
the Constitution but many other important constitutional principles
have been accepted as existing in the law then in force.

I do not find in the judgment of Murnaghan J. or elsewhere in the judgments

in that case any basis for the contention that these rights are to be found in
a body of principles which exist side by side with the written Constitution,
having their source in the Common Law, and of equal validity with the
principles stated in the Constitution, and which on the argument here, would
have the added virtue that they are uncontrolled by Article 28, s. 3, Sub-
section 3. The constitutional rights relied upon in this case find clear
expression in Article 40 and 38 of the Constitution. In my view they cannot
be found elsewhere than in the Constitution.

The advantages of a written Constitution are manifest. Such a Constitution

can, and our Constitution does, give rights such as these definite and clear
expression. Our Constitution can, and does, protect them against being
whittled away save with great difficulty. The framers of the Constitution
have provided that, after the passage of a limited time, many, though not all
.,of the rights which it gives are put beyond the reach of interference by
ordinary . law. The framers have, however, deliberately inserted Article 28,
s. 3, Sub-section 3, which is clearly designed to prevent the Courts from
invoking anything in the Constitution to invalidate enactments passed, or to
nullify acts done, or which purport to be done,, in pursuance of Acts passed
for securing the public safety or the preservation of the State in time of
war."

Gavan Duffy, J. also observed to the same effect:

The applicants seek, in the alternative, to base their claims to

habeas corpus and prohibition upon antecedent rights of personal
liberty and regular trial at Common Law: but, whether or not the
imminent Common Law of Ireland needed generally any Article 50
(containing the laws in force) to retain its vigour, the particular
Common Law principles here invoked must both, in my opinion, of
necessity have merged in the express provisions declaring how the
two corresponding rights are to be in force under the new polity
established by An Bunreacht.

25-06-2021 (Page 273 of 305) www.manupatra.com SOAS Library Library

And so did Martin Maguire, J. when he said:

It is argued, in the alternative, that, apart from the Constitution

and existing side by side with it, there is a body of constitutional
law, founded on Common Law, and comprising the same
constitutional rights which the prosecutors seek to assert, and in
respect of which they demand the relief claimed in these
proceedings. This argument involves the propositions that the State
has two Constitutions, the one enacted by the people, written and
defined; the other unwritten and undefined, and that the latter may
be invoked, or called in aid, to the extent even of defeating the
clear terms of the Constitution where a conflict real or apparent is
alleged between them. There is no authority for these propositions.
I am unable to accept this argument.

On this view, all the three judges of the High Court held that the emergency
Powers (No 41-F) Order,, 1941 was immune from challenge by reason of
Article 28, Section 3, Sub-section (3) of the Constitution. This decision was
taken in appeal and affirmed by the Supreme Court, but this point about the
continuance of the common law rights side by side in the constitution, was
not examined since it was obvious that the emergency Powers (No. 41 F)
Order, 1941 should not be set at naught on the ground of repugnancy to any
supposed Common Law rights. It will be seen that there is a close analogy
between this decision of the High Court and the present case and the
observations of the three judges quoted above are directly applicable here.

541. The detenus, however, strongly relied on the decisions of this Court in
Bharat Singh's case (supra), Ibralum & Co.'s case (supra) Berrnet Coleman
& Co.'s case (supra) and Shree Meenakshi Mills' case (supra) in support of
their contention that the principle of rule of law that the executive cannot'
act to the prejudice of a person except by authority of law continues to exist
as a distinct and independent principle unaffected inter alia by the
enactment of Article 21. I have already referred to these decisions earlier
and it will be evident from what I have said, that these decisions do not lay
down any such proposition as is contended for on behalf of the detenus.
What these decisions say is only this, namely, that Article 358 protects
against challenge under Article 19 only such executive action as is "taken
under lawful authority and if any executive action is taken without authority
of law or. in pursuance of a law which is void, it will not be protected from
challenge under Article 19 by Article 358 and it will be void to the extent to
which it conflicts with Article 19. These decisions, properly read, do not
support the thesis put forward on behalf of the detenus.

25-06-2021 (Page 274 of 305) www.manupatra.com SOAS Library Library

542. The detenus then relied on the decision of this Court in Bidi Supply Co.
v. Union of India MANU/SC/0040/1956 : [1956]29ITR717(SC) . There, an
omnibus order was made under Section 5, Sub-section (7A) of the Income
Tax Act transferring cases of the petitioner form one place to another. The
petitioner challenged this order as being outside the power conferred under
Section 5, Sub-section (7A) and hence violative of the fundamental rights
guaranteed to him by Articles 14, 19(1) (f) and (b) and 31 of the
Constitution. this Court held that the omnibus order made in this case was
not contemplated or sanctioned by Sub-section (7A) of Section 5 and,
therefore, the petitioner was still entitled to the benefit of the provisions of
Sub-sections (1) and (2) of Section 64 and since the Income Tax authorities
had by an executive order., unsupported by law, picked out the petitioner for
discriminatory-treatment, there was violation of the equality clause of the
Constitution and hence the petitioner was entitled to relief under Article 32
of the Constitution setting aside the impugned order. S.R. Das-, C.J.,
speaking on behalf of the Court, observed:

As said by Lord Aktin in Eshugbayi Eleko's case the executive can

only act in pursuance of the powers given to it by law and it cannot
interfere with the liberty, property and rights of the subject except
on the condition that it can support the legality of its action before
the Court. Here there was no such order of transfer as is
contemplated or functioned by Sub-section (7A) of Section 5 and,
therefore, the present assessee still has the right, along with all
other Bidi merchants carrying on business in Calcutta, to have his
assessment proceedings before the Income Tax Officer OL the area
in which his place of business is situate. The Income Tax authorities
have by an executive order, unsupported by law, picked out this
petitioner and transferred all his cases by an omnibus order
unlimited in point of time.
(Emphasis supplied).
and since the action of the Income Tax authorities was contrary to Sub-
sections (1) and (2) of Section 64, the impugned order was held to be bad.
Hence it will be noticed that the impugned order operated to the prejudice
of the petitioner by affecting his rights under Section (1) and (2) of Section
64 but it did not affect any of his rights under Article 19 or Article 21 or
Clause (1) of Article 31 and therefore, the principle of rule of law that the
executive cannot act to the prejudice of a person without authority of law
could be legitimately invoked. It continued to be in law in force to the extent

25-06-2021 (Page 275 of 305) www.manupatra.com SOAS Library Library

to which if was not recognised and enacted in any provision of the
Constitution.

543. The next decision to which I must refer in this connection is Bishan Das
and Ors. v. The State of Punjab MANU/SC/0348/1961 : [1962]2SCR69 . This
was a petition under Article 32 of the Constitution and the action of the
officers of the State Government impugned in this case was forcible
dispossession of the petitioners of properties which were in their
management and possession. The challenge to the impugned action of the
officers of the State Government was based on violation of the fundamental
right guaranteed under Clause (1) of Article 31. this Court upheld the
challenge and struck down the impugned action as being without the
authority of law and while doing so, made the following observations which
were strongly relied on behalf of the detenus : "Before we part with this
case, we feel it our duty to say that the executive action taken in this case
by the State and its officers is destructive of basic principle of the rule of
law--the action of the Government in taking the) law into their hands and
dispossessing the petitioners by the display of force, exhibits a callous
disregard of the normal requirements of the rule of law--We have here a
highly discriminatory and autocratic act which deprives a person of the
possession of property without reference to any law or legal authority",
(emphasis supplied). These observations made in the context of a petition
for enforcement of the fundamental right under Article 31, Clause (1) clearly
show that this Court regarded the principle of rule of law that no person
shall be deprived of his property "without reference to any law or legal
authority" as embodied in Article 31, Clause (1) and did not rely upon this
principle of rule of law as a distinct and independent principle apart from
Article 31, Clause (1) : otherwise the petition under Article 32 would not
have been maintainable and this Court could not have granted relief.

544. The last decision to which I must refer is the decision of this Court in
State of Bihar v. Kameshwar Prasad Verma MANU/SC/0116/1962 :
1965CriLJ494 . That was a case arising out of a petition for a writ of habeas
corpus filed under Article 226 for release of one Bipat Gope from illegal
detention. this Court held that the State Government had failed to show
under what lawful authority Bipat had been re-arrested and in the absence
of such lawful authority, the detention was illegal. Kapur, J., speaking on
behalf of the Court referred with approval to the observations of Lord Atkin
in Eshugbayi Eleko's case (supra) and pointed out : "It is the same
jurisprudence which has been adopted in this country on the basis of which
the courts of this country exercise jurisdiction". These observations were
relied upon on behalf of the detenus to contend that the principle of rule of

25-06-2021 (Page 276 of 305) www.manupatra.com SOAS Library Library

law in Eshugbayi Elekos case (supra) was held by this Court to have been
adopted in this country and it must, therefore, be enforced independently of
Article 21. But I do not think that is the effect of these observations. What
Kapur, J., said was only this, namely that the principle of rule of law in
Eshugbayi Eleko's case (supra) had been adopted in this country. He did not
make it clear how it had been adopted nor did he say that it had been
adopted as a distinct and independent principle apart from the fundamental
rights. There can be no doubt that the principle in Eshogbayi Eleko's case
(supra) had been adopted in this country in Article 21 to the extent to which
it protects personal liberty. It will, thererefore., be seen that there is no
decision of this Court which says that there is a right of personal liberty
based on the rule of law distinct and independent from that guaranteed by
Article 21.

545. I must now turn to the decision of this Court in Makhan Singh v. State
of Punjab (supra) on which very strong reliance was placed on behalf of the
detenus. That was a decision given in a batch of twenty-six appeals from the
decisions of the High Courts of Bombay and Punjab. The appellants in these
six appeals were detained respectively by the Punjab and the Maharashtra
State Governments under Rule 30(1") (b) of the Defence of India Rules
made by the Central Government in exercise of the powers conferred on it
by Section 3 of the Defence of India Ordinance, 1962. They applied to the
Punjab and the Bombay High Courts respectively under Section 491(1) (b)
of the CrPC and alleged that they had been improperly and illegally
detained. Their contention was that Section 3(2)(15)(i) and Section 40 of
the Defence of India Act, 1962 which replaced the Defence of India
Ordinance and Rule 30(1) (b) under which they were detained were
constitutionally invalid because they contravened their fundamental rights
under Articles 14, 21 and 22 C4) (5) and (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. There was in operation
at that time a Proclamation of emergency dated 26th October, 1962 issued
by the President under Article 352, Clause (1) on account of the Chinese
aggression. The President had also issued an order dated 3rd November,
1962 under Article 359, Clause (1) suspending the right of any person to
move any court for the enforcement of the rights conferred by Articles 21
and 22 "if such person has been deprived of any such rights under the
Defence of India Ordiance, 1962 (4 of 1962) or any rule or order made
thereunder." The contention of the State Governments based on this
Presidential Order was--and that contention found favour with both High
Courts--that the Presidential Order created a bar which precluded the
appellants from maintaining the petitions under Section 491 (1) (b) of the

25-06-2021 (Page 277 of 305) www.manupatra.com SOAS Library Library

CrPC. On this contention. two questions arose for determination before this
Court. The first was as to what was the true scope and effect of the
Presidential Order and the second was whether the bar created by the
Presidential Order operated in respect of applications made by the
appellants under Section 491(l)(b) of the CrPC. this Court in a majority
judgment delivered by Gajendragadkar, J., analysed the provisions of Article
359, Clause (1) and held that the words "any court" in that Article must be
given their plain grammatical meaning and must be construed to mean any
court of competent jurisdiction which would include the Supreme Court and
the High Courts before which the specified rights can be enforced by the
citizens". The majority judgment then proceeded to add ; "The sweep of
Article 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 said specified fundamental rights. " Having
thus disposed of the first question, the majority judgment went on to
consider the second question and after analysing the nature of the
proceedings under Section 491(1) (b) of the CrPC, held that the prohibition
contained in Article 359, Clause (1) and the Presidential Order would apply
"as much "to proceedings under Section 491(1)(b) as to those under Article
226(1) and Article 32(1)". It was obvious that on this view, the petitions
under Section 491(1)(b) were not maintainable,, since the only ground on
which they challenged the orders of detention was that the provisions of
Section 3(2)(15)(i) as well as Rule 30(1)(b) were invalid as offending
against Articles 14, 21 and 22 and in the circumstances it was not necessary
for this Court to express any opinion on the question as to what were the
pleas available to a citizen under the Presidential Order in challenging the
legality or propriety of his detention. Still, however, the majority judgment
proceeded to give its opinion on this question? in the following terms:

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 Section 491 (1)(b) of the Code or
Article 226(1) of the Constitution. We have already seen that the
right to move any court which is suspended by Article 359(1) and
the Presidential order 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 Article 359(1) and consequently

25-06-2021 (Page 278 of 305) www.manupatra.com SOAS Library Library

 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
Article 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 enough
: the detenu will have to prove the malafides. But if the mala-fides
are alleged, the detenu cannot be precluded from substantiating
his; plea on the ground of the bar created by Article 359(1) and the
Presidential order. That is another kind of plea which is outside the
purview of Article 359(1).--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.

The strongest reliance was placed on behalf of the detenus on these

observations in the majority judgment. It was contended on behalf of the
detenus that the observations clearly showed that if an order of detention is
challenged on the ground that it is in violation of the mandatory provisions
of the Act or is made malafide, such a plea would be outside Article 359,
Clause (1) and would not be barred by a Presidential Order specifying Article
21. The detenus, in support of this contention leaned heavily on the words
'such a plea is outside Article 359(1) and the right of the detenu to move for
his release on such a ground cannot be affected by the Presidential Order",
and "that is another kind of plea which is outside the purview of Article
359(1) occurring in these observations and urged that such a plea was held
to be permissible because it was outside the purview of Article 359, Clause
(1) and not because it was outside the terms of the particular Presidential
Order.

546. Now, at first blush, these observations do seem to support the

contention of the detenus. But there are two very good reasons why I do
not think these observations can be of much help in the determination of the
question before us. In the first place, the question as to what were the other

25-06-2021 (Page 279 of 305) www.manupatra.com SOAS Library Library

pleas available to a detenu in challenging the legality or propriety of his
detention, despite the President Order dated 3rd November, 1962, was not
in issue before the Court and did not fall, to be decided and the aforesaid
observations made by the Court on this question were, therefore, clearly
obiter. These observations would undoubtedly be entitled to great weight,
but, as pointed out by this Court in H. Maharajadhiraja Madhav Rao Jiwaji
Rao Scindia Bahadur and Ors. v. Union of India MANU/SC/0050/1970 :
[1971]3SCR9 "an obiter cannot take the place of the ratio. Judges are not
oracles". These observations do not, therefore, have any binding effect and
they cannot be regarded as conclusive on the point. Moreover, it must be
remembered that

when we are considering the observations of a high judicial authority like

this Court, the greatest possible care must be taken to relate the
observations of a judge to the precise issues before him and to confine such
observations, even though expressed in broad terms, in the general
compass of the question before him, unless he makes it clear that he
intended his remarks to have a wider ambit. It is not possible for judges
always to express their judgments so as to exclude entirely the risk that in
some subsequent case their language may be misapplied and any attempt
at such perfection of expression can only lead to the; opposite result of
uncertainty and even obscurity as regard the case in hand.
It may be noted that, in this case the Presidential Order dated 3rd
November, 1962, which came up for consideration before the Court,, was a
conditional order, inasmuch as it operated to suspend the right of any
person to move any court for enforcement of the rights conferred by Articles
21 and 22, only if he was deprived of any such rights under the Defence of
India Act, 1962 or any rule or order made under it. It was in the context of
this Presidential Order that the aforesaid observations were made by this
Court. It is obvious that, on the terms of this Presidential Order, if a person
was deprived of his personal liberty otherwise than in accordance with the
provisions of the Defence of India Act, 1962 or any rule or order made
under it, his right to move the Court for enforcement of his right of personal
liberty under Article 21 would not be barred by the Presidential Order. That
is why it was said in this case, that, if the detention is illegal for the reason
that the mandatory provisions of the Defence of India Act., 1962 or, any rule
or order made thereunder have been contravened or that the detention has
been ordered mala fide, such a plea would not fall within the terms of the
Presidential Order and hence it would be outside the purview of Article 359,
Clause (1). That is the only way in which these observations can and must
be understood. It was pointed out by the House of Lords as far back as 1901
in Queen v. Leatham [1901] A. C. 495 "Every judgment must be read as

25-06-2021 (Page 280 of 305) www.manupatra.com SOAS Library Library

applicable to the particular facts proved, or assumed to be proved, since the
generality of the expressions which may be found there are not intended to
be exposition of the whole law, but are governed and qualified by the
particular facts in which such expressions are to be found." this Court had
also occasion to point out in the State of Orissa v. Sudhansu Sekhar Misra
MANU/SC/0047/1967 : (1970)ILLJ662SC that the observations in a
judgment must be "only in the context of the question that arose for
decision." It would not be right, as observed by this Court in Madhav Rao v.
Union of India (supra), "to regard a word, a clause or a sentence occurring
in a judgment of this Court, divorced from its context, as containing a full
exposition on the law on a question" particularly "when the question did not
even fall to be answered in that judgment". Here, in the present case, unlike
the Presidential Order dated 3rd November, 1962, which was a conditional
Order, the Presidential Order dated 27th June, 1975 is, on the face of it. an
unconditional one and; as such there is a vital difference in effect between
the Presidential Order dated 3rd November, 1962 and the present
Presidential Order. In fact, it appears that because of the interpretation and
effect of the Presidential Order dated 3rd November, 1962 given in this case
and the subsequent cases following it, the President deliberately and
advisedly departed from the earlier precedent and made the present
Presidential Order an unconditional one. These observations made in the
context of a conditional Presidential Order cannot, therefore, be read as
laying down that a plea that an order of detention is not in accordance with
the provisions of law or is mala fide is outside the purview of Article 359,,
Clause (1) and would not be barred even by an unconditional Presidential
Order such as the one we have in the present case.

547. This distinguishing feature of Makhan Singh's case (supra) was in fact
highlighted and emphasised in the subsequent decision of this Court in A.
Nambiar v. Chief Secretary MANU/SC/0060/1965 : 1966CriLJ586 There
Gajendragadkar, C.J., stressed the conditional nature of the Presidential
Order dated 3rd November, 1962 and indicated that it was in view of the last
clause of the Presidential Order, that the aforesaid observations were made
by this Court in Makhan Singh's case. The learned Chief Justice explained
the position in the following words:

In Makhan Singh Tarsikka v. The State of Punjab a Special Bench of

this Court has had occasion to consider the effect of the
Proclamation of emergency issued by the President and the
Presidential Order with which we are concerned in the present writ
petitions.--this Court took the precaution of pointing out that as a
result of the issue of the Proclamation of emergency and the

25-06-2021 (Page 281 of 305) www.manupatra.com SOAS Library Library

 Presidential Order, a citizen would not be deprived of his right to
move the appropriate court for a writ of habeas corpus on the
ground that his detention has been ordered mala fide. Similarly, it
was pointed out that if a detenu contends that the operative
provisions of the Defence of India Ordinance under which he is
detained suffer from the vice of excessive delegation, the plea thus
raised by the detenu cannot, at the threshold, be said to be barred
by the Presidential Order, because, in terms, it is not a plea which is
relatable to the fundamental rights specified in the said order.

Let us refer to two other pleas which may not fall within the
purview of the Presidential Order. If the detenu, who is detained
under an order passed under Rule 30(1)(b), contends that the said
Order has been passed by a delegate outside the authority
conferred on him by the appropriate Government under Section 40
of the Defence of India Act. or it has been exercised inconsistently
with the conditions prescribed in that behalf,, a preliminary bar
against the competence of the detenu's petition cannot be raised
under the Presidential Order, because the last clause of the
Presidential Order would not cover such a petition, and there is no
doubt that unless the case falls under the last clause of the
Presidential Order, the bar created by it cannot be successfully
invoked against a detenu. therefore, our conclusion is that the
learned Additional Solicitor-General is not justified in contending
that the present petitions are incompetent under Article 32 because
of the Presidential Order. The petitioners contend that the relevant
Rule under which the impugned orders of detention have been
passed, is invalid on grounds other than those based on Articles 14,
19, 21 and 22, and if that plea is well-founded, the last clause of
the Presidential Order is not satisfied and the bar created by it
suspending the citizens' fundamental rights under Articles 14, 21
and 22 cannot be pressed into service.

These observations, and particularly the portions underlined by me, clearly

show that it was because of the conditional nature of the Presidential Order
that the view was taken that if a detente contends that tie order of
detention has been made mala fide or that it has been passed by a delegate
outside the authority conferred on him under the Act or that it has been
exercised inconsistently with the conditions prescribed in that behalf", that
is, it is not in accordance with the provisions of law, such a plea would not
be barred at the threshold by the Presidential Order. The conditional nature
of the Presidential Order was also stressed by this Court in State of

25-06-2021 (Page 282 of 305) www.manupatra.com SOAS Library Library

Maharashtra v. Prabhakar Pandurang Sangzgiri MANU/SC/0089/1965 :
1966CriLJ311 where this Court, speaking through Subba Rao, J., pointed out
that in view of the last clause of the Presidential Order, "if a person was
deprived of his personal liberty not under the Act or a rule or order made
thereunder, but in contravention thereof, his right to move the said courts",
that is the High Court and the Supreme Court "in that regard would not be
suspended".

548. It was then contended on behalf of the detenus that in any event the
right of personal liberty is a natural right which inheres in every one from
the moment of his birth and this right can always be enforced by the
detenus under Article 226 by a writ "for any other purpose" and the
Presidential Order does not operate as a bar. When, in answer to this
contention the Union of India and the State Governments relied on His
Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala
MANU/SC/0182/1962 : [1962]45ITR414(SC) , the detenus urged that
Kesavananda Bharati's case (supra) did not say that there is no natural right
inhering in a person, but all that it said was that natural rights do not stand
in the way of amendment of the Constitution. Kesavanand Bharati's case
(supra) according to the detenus, did not negative the existence and
enforceability of natural rights. But this contention of the detenus is clearly
belied by the observations from the judgments of at least seven of the
judges who decided Kesavanand Bharati's case (supra). Ray, C. J. said at
pages 419 of the Report: "Fundamental rights are conferred by the
Constitution. There are no natural rights under our Constitution." Palekar, J.,
also said at page 594 of the Report : "The so called natural rights--have in
course of time--lost their utility as such in the fast changing world and are
recognised in modern political constitutions only to the extent that
organised society is able to respect them." So also Khanna, J. said at page
703 of the Report: "-- the later writers have generally taken the view that
natural rights have no proper place outside the Constitution and the laws of
the State. It is up to the State to incorporate natural rights, or such of them
as are deemed essential, and subject to such limitations as are considered
appropriate, in the Constitution of the laws made by it. But independently of
the Constitution and the laws of the State, natural rights can have no legal
sanction and cannot be enforced." Mathew, J., too, spoke to the same effect
when he said at page 814 of the Report : "Although called 'rights', they are
not per se enforceable in courts unless recognised by the positive law of a
State". Beg, J. also discounted the theory of natural rights at pages 881 and
882 of the Report and Dwivedi, J. observed at page 910 of the Report that
to regard fundamental rights as natural rights overlooks the fact that some
of these rights did not exist before the Constitution and '"were begotten by

25-06-2021 (Page 283 of 305) www.manupatra.com SOAS Library Library

our specific national experience". Chandrachud, J., was equally emphatic in
saying at pages 975 and 976 of the Report that "There is intrinsic evidence
in Part III of the Constitution to show that the theory of natural rights was
not recognised by our Constitution makers--The natural theory stands, by
and large, repudiated today--The belief is now widely held that natural
rights have no other than political value". It may be pointed out that Subba
Rao. I, also in I.C. Golak Nath and Ors. v. State of Punjab at page 789 of the
Report rejected the theory of natural rights independent and apart from
fundamental rights in Part III. He said : ''Fundamental rights are the
modern name for what have been traditionally known as natural rights".
There is, therefore, no scope for the contention that even if the enforcement
of the Fundamental right conferred by Article 21 is suspended by the
Presidential Order, the detenu can still enforce a supposed natural right of
personal liberty in a court of law.

549. I may also refer to one other argument advanced on behalf of the
detenus that in any event the right not to be deprived of personal liberty
except by authority of law is a statutory right which can be enforced despite
the Presidential Order suspending enforcement of the right of personal
liberty guaranteed under Article 21. I agree and there can be no doubt
about it that if the positive law of the State decrees that no person shall be
deprived of his personal liberty except according to the procedure prescribed
by law, the enforcement of such statutory right would not be barred by the
Presidential Order. But 1 am afraid, the premise on which this argument is
founded is incorrect. There is no legislation in our country which confers the
right of personal liberty by providing that there shall be no deprivation of it
except in accordance with law. On the contrary, Section 18 of the
Maintenance of Internal Security Act, 1971 enacts that no person in respect
of whom an order of detention is made or purported to be made under
Section 3 shall have any right to personal liberty by virtue of natural law or
common law. if any. The Indian Penal Code in Section 342 undoubtedly
makes it penal to wrongfully confine any person and the offence of wrongful
confinement postulates that no one shall be deprived of his personal liberty
except by authority of law. But it can hardly be said on that account that
Section 342 of the Indian Penal Code confers a right of personal liberty. The
utmost that can be said is that this Section proceeds on a recognition of the
right of personal liberty enacted in Article 21 and makes it an offence to
wrongfully confine a person in breach of the right conferred by that
constitutional provision.

550. Then I must refer to one other contention of the detenus and that is
that the remedy under Article 226 can be invoked not only for the purpose

25-06-2021 (Page 284 of 305) www.manupatra.com SOAS Library Library

of enforcement of the fundamental rights, but also "for any other purpose".
These words greatly enlarge the jurisdiction of the High Court and the High
Court can issue a writ of habeas corpus if it finds that the detention of a
person is illegal. It is not necessary for this purpose that the court should be
moved by the detenu. It is sufficient if it is moved by any person affected by
the order of detention. When it is so moved and it examines the legality of
the order of detention, it does not enforce the right of personal liberty of the
detenu, but it merely keeps the executive within the bounds of law and
enforces the principle of legality. The remedy of habeas corpus is a remedy
in public law and hence it cannot be excluded by suspension of enforcement
of the right of an individual. This contention of the detenus does appear, at
first sight, to be quite attractive, but I am afraid, it is not well founded. It
fails to take into account the substance of the matter. When an applicant
moves the High Court for a writ of habeas corpus, he challenges the legality
of file order of detention on the ground that it is not in accordance with law.
That challenge proceeds on the basis that the executive cannot deprive a
person of his personal liberty except by authority of law and that is why the
order of detention is bad. But once it is held that the obligation of the
executive not to deprive a person of his personal liberty except in
accordance with law is to be found only in Article 21 and no where else, it
must follow necessarily that, in challenging the legality of the detention,
what the applicant claims is that there is infraction by the executive of the
right of personal liberty conferred under Article 21 and that immediately
attracts the applicability of the Presidential Order. If we look at the
substance of the matter and analyse what is it exactly that the High Court is
invited to do, it will be clear that what the applicant wants the High Court to
do is to examine whether the executive has carried out the obligation
imposed upon it by Article 21 not to deprive a person of his personal liberty
except according to the procedure prescribed by law and if it finds that the
executive has failed to comply with this obligation, then to strike down the
order of detention. That is precisely what is not permitted to be done by the
Presidential Order, for it plainly amounts to enforcement of the right of
personal liberty conferred by Article 21. The words "any other purpose"
cannot be availed of for the purpose of circumventing the constitutional
inhibition flowing from the Presidential Order.

551. It is necessary to point out that Article 359 Clause (1) and the
Presidential Order issued under it do not have the effect of making unlawful
actions of the executive lawful. There can be no doubt that the executive is
bound to act in accordance with law and cannot flout the command of law.
The executive cannot also act to the detriment of a person without authority
of law or except in accordance with law. If the executive takes any action

25-06-2021 (Page 285 of 305) www.manupatra.com SOAS Library Library

which is not supported by law or is contrary to law, its action would be
unlawful. This unlawful characteristic of the action is not obliterated by the
Presidential Order issued under Article 359 Clause (1). Article 359, Clause
(1) and the Presidential Order issued under it do not give any power to the
executive to alter or suspend or flout the law nor do they enlarge the power
of the executive so as to permit it to go beyond what is sanctioned by law.
They merely suspend the right of a person to move any court for redress
against the unlawful action of the executive, if his claim involves
enforcement of any of the fundamental rights specified in the Presidential
Order. This is a position akin in some respects to that in the United States
when the privilege of the writ of habeas corpus is suspended under Article 1,
Placitium 9, Clause (2) of the United States Constitution and in Great Britain
when the Habeas Corpus Suspension Act is passed. It must inevitably follow
from this position that as soon as the emergency comes to an end and the
Presidential Order ceases to be operative, the unlawful action of the
executive becomes actionable and the citizen is entitled to challenge it by
moving a court of law.

552. It will be clear from what is stated above that whilst a Presidential
Order issued under Article 359, Clause (1) is in operation, the rule of law is
not obliterated and it continues to operate in all its vigour. The executive is
bound to observe and obey the law and it cannot ignore or disregard it. If
the executive commits a breach of the law, its action would be unlawful, but
merely the remedy would be temporarily barred where it involves
enforcement of any of the fundamental rights specified in the Presidential
Order. This would be obvious if we consider what would be the position
under the criminal law. If the executive detains a person contrary 'to law or
shoots him dead without justifying circumstances, it would clearly be an
offence of wrongful confinement in one case and murder in the other,
punishable under the relevant provisions of the Indian Penal Code, unless
the case falls within the protective mantle of Section 76 or 79 and the officer
who is responsible for the offence would be liable to be prosecuted, if there
is no procedural bar built by the CrPC against the initiation of such
prosecution. The Presidential Order suspending the enforcement of Article
21 would not bar such a prosecution and the remedy under the Indian Penal
Code would be very much available. The offence of wrongful confinement or
murder is an offence against the society and any one can set the criminal
law in motion for punishment of the offender. When a person takes
proceedings under the CrPC in connection with the offence of wrongful
confinement or murder or launches a prosecution for such offence, he
cannot be said to be enforcing the fundamental right of the detenu or the

25-06-2021 (Page 286 of 305) www.manupatra.com SOAS Library Library

murdered man under Article 21 so as to attract the inhibition of the
Presidential Order.

553. So also, if a positive legal right is conferred on a person by legislation

and he seeks to enforce it in a court, it would not be within the inhibition of
a Presidential Order issued under Article 359, Clause (1). Take for example
the class of cases of detention where no declaration has been made under
Sub-sections (2) and (3) of Section 16A. This category would cover cases
where orders of detention have been passed prior to June 25, 1975,
because in such cases no declaration under Sub-sections (2) or (3) of
Section 16A is contemplated and it would also cover the rather exceptional
cases where orders of detention have been made after 25th June, 1975
without a declaration under Sub-section (2) or Sub-section (3) of Section
16A. Sections 8 to 12 would continue to apply in such cases and
consequently the detaining authority would be under an obligation to refer
the case of the detenu to the Advisory Board and if the Advisory Board
reports that there is in its opinion no sufficient cause for the detention of the
detenu,, the State Government would be bound to revoke the detention
order and release the detenu. That is the plain requirement of Sub-section
(2) of Section 12. Now. suppose that in such a case the State Government
fails to revoke the detention order and release the detenu in breach of its
statutory obligation under Sub-section (2) of Section 12. Can the detenu not
enforce this statutory obligation by filing a petition for a writ of mandamus ?
The answer must obviously be: he can. When he files such a petition for a
writ of mandamus, he would be enforcing his statutory right under Sub-
section (2) of Section 12 and the enforcement of such statutory right would
not be barred by a Presidential Order specifying Article 21. The Presidential
Order would have no operation where a detenu is relying upon a provision of
law to enforce a legal right conferred on him and is not complaining of
absence of legal authority in the matter of deprivation of his personal liberty.

554. I may also refer by way of another illustration to Section 57 of the

CrPC Code, 1973. This Section provides that no police officer shall retain in
custody a person arrested without warrant for a longer period than under all
the circumstances of case is reasonable, and such period shall not, in the
absence of a special order of a magistrate under Section 167, exceed 24
hours exclusive of the time necessary for the journey from the place of
arrest to the magistrate's court. There is clearly a legal injunction enacted
by this Section requiring a police officer not to detain an arrested person in
custody for a period longer than 24 hours without obtaining a special order
of a magistrate and to release him on the expiration of such period of 24
hours, if in the meantime such special order is not obtained. If, in a given

25-06-2021 (Page 287 of 305) www.manupatra.com SOAS Library Library

case, an arrested person is detained in custody by the police officer for a
period longer than 24 hours without obtaining an order of a magistrate, can
he not apply to the magistrate that he should be directed to be released by
the police officer under Section 57 ? Would such an application be barred by
a Presidential Order specifying Article 21 ? I do not think so. When the
arrested person makes such an application, he seeks to enforce a statutory
obligation imposed on the police officer and a statutory right created in his
favour by Section 57 and that would not be barred, because what is
suspended by a Presidential Order specifying Article 21 Is the right to move
the court for enforcement of the fundamental right conferred by that Article
and not the right to move the court for enforcement of the statutory right to
be released granted under Section 57.

555. I may take still another example to illustrate the point I am making.
Take a case where an order of detention has been made without a
declaration under Sub-section (2) or Sub-section (3) of Section 16A).
Sections 8 to 12 would admittedly apply in such a case and under Section 8,
the detaining authority would be bound to communicate to the detenu the
grounds on which the order of detention has been made and to afford him
the earliest opportunity of making a representation to the appropriate
government. If, in a given case, the detaining authority declines to furnish
the grounds of detention to the detenu or to afford him an opportunity of
making a representation, in violation of the statutory right conferred on him
under Section 8, can be detenu not enforce this statutory right by filing a
petition for a writ of mandamus against the detaining authority ? Would it be
any answer to such an application that the enforcement of the fundamental
right conferred by Article 22, Clause (5) has been suspended by the
Presidential Order? The answer is plainly: no. There are two rights which the
detenu has in this connection: one is the fundamental right conferred by
Article 22, Clause (5) and the other is the statutory right conferred by
Section 8. Though the content of both these rights is the same, they have
distinct and independent existence and merely because enforcement of one
is suspended, it does not mean that the other also cannot be enforced. The
'theory of reflection' which found favour with the Kerala High Court in
Fathima Beebi v. M. K. Ravindranathan MANU/KE/0119/1974 is clearly
erroneous. If the right conferred under Section 8 were a reflection of the
fundamental right conferred by Article 22, Clause (5) as the Kerala High
Court would have us believe, the removal of the fundamental right under
Article 22, Clause (5), which is the object reflected, must necessarily result
in the effacement of the right under Section 8 which is said to constitute the
reflection. But even if Article 22, Clause (5) were deleted from the
Constitution, Section 8 would still remain on the statute book until repealed

25-06-2021 (Page 288 of 305) www.manupatra.com SOAS Library Library

by the legislature. The Presidential Order would, not, therefore, bar
enforcement of the right conferred by Section 8.

556. To my mind, it is clear that if a petition or other proceeding in court

seeks to enforce a positive legal right conferred by some legislation, it would
not be barred by the Presidential Order. I may also point out that, in the
present case, if I had taken the view that there is. independently and apart
from Article 21, a distinct and separate right not to be deprived of personal
liberty except according to law, I would have held, without the slightest
hesitation, that the Presidential Order suspending enforcement of the
fundamental right conferred by Article 21 does not have the effect of
suspending enforcement of this distinct and separate legal right. But since I
have come to the conclusion, for reasons already discussed, that there is no
such distinct and separate right of personal liberty apart from and existing
side by side with Article 21, it must be held that when a detenu claims that
his detention is not under the Act or in accordance with it, he seeks to
enforce the fundamental right conferred by Article 21 and that is barred by
the Presidential Order. Of course, this does not mean that whenever a
petition for a writ of habeas corpus comes before the Court, it must be
rejected straightaway without even looking at the averments made in it. The
Court would have to consider whether the bar of the Presidential Order is
attracted and for that purpose, the Court would have to see whether the
order of detention is one made by an authority empowered to pass such an
order under the Act; if it is not, it would not be State action and the petition
would not be one for enforcement of the right conferred by Article 21. On
this view in regard to the interpretation of the constitutional provision, it is
unnecessary to go into the question of construction and validity of Section
18 of the Act.

557. It was strongly urged upon us that if we take the view that the
Presidential Order bars the right of a person to move a court even when his
detention is otherwise than in accordance with law, there would be no
remedy against illegal detention. That would encourage the executive to
disregard the law and exercise arbitrary powers of arrest. The result would
be--so ran the argument--that the citizen would be at the mercy of the
executive : every one would be living in a state of constant apprehension
that he might at any time be arrested and detained : personal liberty would
be at an end and our cherished values destroyed. Should we accept a
construction with such fearful consequences was the question posed before
us. An impassioned appeal was made to us to save personal liberty against
illegal encroachments by the executive. We were exhorted to listen to the*
voice of judicial conscience as if judicial conscience were a blithe spirit like

25-06-2021 (Page 289 of 305) www.manupatra.com SOAS Library Library

Shelley's Skylark free to sing and soar without any compulsions. I do not
think I can allow myself to be deflected by such considerations from arriving
at what I consider to be the correct; construction of the constitutional
provision. The apprehensions and fears voiced on behalf of the detenus may
not altogether be ruled out. It is possible that when vast powers are vested
in the executive, the exercise of which is immune from judicial scrutiny, they
may sometimes be abused and innocent persons may be consigned to
temporary detention. But merely because power may sometimes be abused,
it is no ground for denying the existence of the power. All power is likely to
be abused. That is inseparable from the nature of human institutions. The
wisdom of man has not yet been able to conceive of a government with
power sufficient to answer its legitimate ends and at the same time
incapable of mischief. In the last analysis, a great deal must depend on the
wisdom and honesty., integrity and character of those who are in charge of
administration and the existence of enlightened and alert public opinion. It
was Lord Wright who said in Liversidge v. Siglov Anderson (supra) that "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."

558. It is true that, if, in a situation of emergency, judicial scrutiny into

legality of detention is held to be barred by a Presidential Order specifying
Article 21, illegalities might conceivably be committed by the executive in
exercise of the power of detention and unlawful detentions might be made
against which there would be no possibility of redress. The danger may not
be dismissed as utterly imaginary, but even so, the fact remains that when
there is a crisis-situation arising out of an emergency, it is necessary to best
the Government with extra-ordinary powers in order to enable it to
overcome such crisis-situation and restore normal conditions. Even Harold
Laski conceded in his Article on "Civil Liberties in Great Britain in Wartime"
that "the necessity--of concentrating immense power in a Government
waging total war is beyond discussion" and what he said there regarding a
Government waging total war must apply equally in relation to a
Government engaged in meeting internal subversion or disturbance, for the
two stand on the same footing so far as our Constitution is concerned. Now,
when vast powers are conferred on the executive and judicial scrutiny into
the legality of exercise of such powers is excluded,, it is not unlikely that
illegalities might be committed by the executive in its efforts to deal with
the crisis situation. Dicey, in his "Introduction to the Study of Law of the
Constitution" frankly admits that it is "almost certain that, when the
suspension of the Habeas Corpus Act makes it possible for the Government
to keep suspected persons in a prison for a length of time without bringing

25-06-2021 (Page 290 of 305) www.manupatra.com SOAS Library Library

them to trial, a smaller or greater number of unlawful acts will be
committed, if not by the members of Ministry themselves, at any rate by
their agents." But howsoever unfortunate this situation might be, that
cannot be helped. The Constitution permits judicial scrutiny to be barred
during times of emergency, because it holds that when a crisis arises in the
life of the nation, the rights of individuals must be postponed to
considerations of State and national safety must override any other
considerations. I may add that there is nothing very unusual in this situation
because, as already pointed out above,, such a situation is contemplated
even in countries like the United States of America and Great Britain which
are regarded as bastions of democracy. But at the same time it must be
remembered by the executive that, because judicial scrutiny for the time
being is excluded, its responsibility in the exercise of the power of detention
is all the greater. The executive is under an added obligation to take care to
see that it acts within the four corners of the law and its actions are beyond
reproach. It must guard against misuse or abuse of power, for, though such
misuse or abuse may yield short-term gains, it is a lesson of history which
should never be forgotten that ultimately means have a habit of swallowing
up ends.

559. Before I leave this question, I may point out that, in taking the view T
have, I am not unaware of the prime importance of the rule of law which,
since the dawn of political history,, both in India of Brahadaranyaka
Uunishad and Greece of Aristotle, has tamed arbitrary exercise of power by
the government and constitutes one of the basic tenets of constitutionalism.
I am not unmindful of the famous words of Lord Atkin in his powerful
dissent in Liversidge v. Anderson (supra) that "amid the clash of arms"--and
much more so in a situation of emergency arising from threat of internal
subversion--"laws are not silent. They may be changed, but they speak the
same language in war and in peace". I am also conscious--and if I may
once, again quote the words of that great libertarian Judge : "Judges are no
respect-or of persons and stand between the subject and any attempted
encroachments on his liberty by the executive, alert to see that any coercive
action is justified in law". But at the same time

it cannot be overlooked that,

in the ultimate analysis, the protection of personal liberty and the
supremacy of law which sustains it must be governed by the Constitution
itself. The Constitution is the paramount and supreme law of the land and if
it says that even if a person is detained otherwise than in accordance with
the law, he shall not be entitled to enforce his right of personal liberty,
whilst a Presidential Order under Article 359, Clause (1) specifying Article 21

25-06-2021 (Page 291 of 305) www.manupatra.com SOAS Library Library

is in force I have to give effect to it. Sitting as I do, as a Judge under the
Constitution, I cannot ignore the plain and emphatic command of the
Constitution
for what I may consider to be necessary to meet the ends of justice. It is
said that law has the feminine capacity to tempt each devotee to find his
own image in her bosom. No one escapes entirely.. Some yield blindly, some
with sophistication. Only a few more or less effectively resist. I have always
leaned in favour of upholding; personal liberty, for, I believe, it is one of the
most cherished values of mankind. Without it life would not be worth living.
It is one of the pillars of free democratic society. Men have readily laid down
their lives at its altar, in order to secure it, protect it and preserve it. But I
do not think it would be right for me to allow my love of personal liberty to
cloud my vision or to persuade me to place on the relevant provision of the
Constitution a construction which its language cannot reasonably bear. I
cannot assume to myself the role of Plato's 'Philosopher King' in order to
render what I consider ideal justice between the citizen and the State. After
all,, the Constitution is the law of all laws and there alone judicial conscience
must find its ultimate support and its final resting place. It is in this spirit of
humility and obedience to the Constitution and driven by judicial
compulsion, that I have come to the conclusion that the Presidential Order
dated 27th June, 1975 bars maintainability of a writ petition for habeas
corpus where an order of detention is challenged on the ground that it is
mala fide or not under the Act or not in compliance with it.<mpara>

560. On the view I have taken in regard to the answer to be given to the
first question, it would be unnecessary to consider the second question, but
since the second question has been debated fully and elaborate arguments
have been advanced before us touching not only the interpretation but also
the validity of Sub-section (9) (a), of Section 16A, I think it will be desirable
if I pronounce my opinion, on this question as well. But before I proceed to
do so, I may make it clear once again that though this question is framed in
general terms and so framed, it invites the Court to consider the area of
judicial scrutiny in a petition for a writ of habeas corpus, it is not really
necessary to embark on a consideration of this issue, since it was conceded
by the learned Attorney General, and in my opinion rightly, that the area of
judicial scrutiny remains the same as laid down in the decision of this Court,
subject only to such diminution or curtailment as may be made by Sub-
section (9) (a) of Section 16A. The learned Additional Solicitor General, who
argued this question on behalf of the Union of India, took us through various
decisions of English courts on the is to as to what is the nature of the
jurisdiction which the Court exercises in a petition for a writ of habeas
corpus, and what is the manner in which such jurisdiction must be

25-06-2021 (Page 292 of 305) www.manupatra.com SOAS Library Library

exercised. It is not necessary for the ,purpose of these appeals to wade
through these decisions and to analyse them, because the practice in our
country in regard to the exercise of this jurisdiction, as it has evolved over
the years as a result of the decisions of this Court, is a little different from
that prevailing in England. This Court has never insisted on strict rules of
pleading in cases involving the liberty of at person nor placed undue
emphasis, on the question as to on whom the burden of proof lies. Even a
postcard, written by a detenu from jail has been sufficient to activise this
Court into examining the legality of detention. this Court has consistently
shown great anxiety for personal liberty and refused to throw out a petition
merely on the ground that does not disclose a prima facie case invalidating
the order of detention. Whenever a petition for a writ of habeas corpus has
come up before this Court, it has almost invariably issued a rule calling upon
the detaining authority to justify the detention. this Court has on many
occasions pointed out that when a rule is issued,, it is incumbent on the
detaining authority to satisfy the Court that the detention of the petitioner is
legal and in conformity with the mandatory provisions of the Act. Vide
Naranjan Singh v. State of Madhya Pradesh MANU/SC/0194/1972 :
[1973]1SCR691 , Shaikh Hanif, Gudma Majhi & Kamal Saha v. State of West
Bengal [1974] 2 S.C.R. 258 and Dulal Roy v. The District Magistrate,
Burdwan and Ors. MANU/SC/0112/1975 : 1975CriLJ1322 . It has also been
insisted by this Court that, in answer to the Rule, the detaining authority
must place all the relevant facts before the Court which would show that the
detention is in accordance with the provisions of the Act. It would be no
argument on the part of the detaining authority to say that a particular
ground is not taken in the petition. Vide Nizanuiddin v. The State of West
Bengal [1975] 2 S.C.R. 593. Once the Rule is issued, it is the bounden duty
of the Court to satisfy itself that all the safeguards provided by law have
been seruplously observed and the citizen is not deprived of his personal
liberty otherwise than in accordance with law. Vide Mohd. Alam v. State of
West Bengal MANU/SC/0169/1974 : 1974CriLJ770 and Khudirain Das v.
State of West Bengal and Ors. MANU/SC/0423/1974 : [1975]2SCR832 This
practice marks a slight departure from that obtaining in Cinland but it has
been adopted by this Court in view of the peculiar socio-economic conditions
prevailing in the country. Where large masses of people are poor, illiterate
and ignorant and access to the courts is not easy on account of lack of
financial resources, it would be most unreasonable to insist that the
petitioner should set out clearly and specifically the grounds on which he
challenges the order of detention an make out a prima facie case in support
of those grounds before a Rule can be issued on he petition and when the
Rule is issued, the detaining authority should not be liable to do anything
more than just meet the specific grounds of challenge put forward by the

25-06-2021 (Page 293 of 305) www.manupatra.com SOAS Library Library

petitioner in the petition. Of course, I must make it clear that where an
order of detention is challenged as mala fide, a clear and specific averment
to that effect would have to be made in the petition and in the absence of
such averment, the court would not entertain the plea of mala fide. The
petitioner would have to make out a prima facie case of mala fide before the
detaining authority can be called upon to meet it. Whether a prima facie
case has been made out or not would depend on the particular facts and
circumstances of each case, but the test would be whether the prima facie
case made out is of such a nature that the Court feels that it requires
investigation. The Court would then investigate and decide the question of
mala fide on the basis of the material which may be placed before it by both
parties.

561. What is the area of judicial scrutiny in a petition for a writ of habeas
corpus has been laid down by this Court in: numerous decisions. It is not
necessary to refer to all these decisions, since there is one recent decision,
namely, Khudiram Das v. State of West Bengal (supra) where the entire law
on the subject has been reviewed by a Bench of four judges: of this Court.
There,, the effect of the previous decisions has been considered and the law
has been summarised at pages 843 to 845 of the Report in a judgment
delivered by me on behalf of the Court. I have carefully listened to the most
elaborate arguments advanced before us in this case and even after giving
my most serious consideration to them, I still adhere to all that I said in
Khudiram Das's case (supra). I maintain that the subjective satisfaction of
the detaining authority is liable to be subjected to judicial scrutiny on the
grounds enumerated by me in Khudiram Das's case (supra) and the decision
in Khudiram Das's case (supra) lays down the correct law on the subject.
The only question is : how far and to what extent Sub-section (9) (a) of
Section 16A has encroached upon this area of judicial scrutiny and whether
it is a valid piece of legislation.

562. Now the first question that arises for consideration is as to what is the
correct interpretation of Section 16A, Sub-section (9) (a). That Sub-section
reads as follows:

(9) Notwithstanding anything contained in any other law or any rule

having the force of law--

(a) the grounds on which an order of detention is made or

purported to be made under Section 3 against any person
in respect of whom,, a declaration is made under Sub-
section (2) or Sub-section (3) and any information or

25-06-2021 (Page 294 of 305) www.manupatra.com SOAS Library Library

 materials on which such grounds or a declaration under
Sub-section (2) or a declaration or confirmation under Sub-
section (3) or the non-revocation under subjection (4) of a
declaration are based, shall be treated as confidential and
shall be deemed to refer to matters of State and to be
against the public interest to disclose and save as
otherwise provided in this Act, no one shall communicate or
disclose any such ground, information or material or any
document containing such ground, information or material;

The argument urged on behalf of the detenus was that Sub-section (9) (a)
of Section 16A should be read down and construed so as not to exclude the
power of the High Court in the exercise of its jurisdiction under Article 226
to call for the grounds, information and materials on which the order of
detention is made and the declaration under Sub-section (2) is based with a
view to satisfying itself as regards the legality of the detention. It was
pointed out on behalf of the detenus that, unlike Section 54 of the Indian
Income Tax Act, 1922 and Section 14 of the Preventive Detention Act, 1950,
Sub-section (9) (a) of Section 16A does not include any reference to a court
and it is clear that it is not directed, against the Court. Reliance was also
placed on behalf of the detenus on the following: statement of the law in
Wigmore on Evidence (3rd ed.) vol. 8 at page 801, Article 2379 : "Any
statute declaring in general terms that official records are confidential
should be liberally construed to have an implied exception for disclosure
when needed in court of justice", and reference was also made to the
decision of the English Court in Lee v. Burrell 170 English Reports 1402 in
support of the proposition that in a statutory provision, like Sub-section (9)
(a) of Section 16A, the Court must read an implied exception in favour of
the Court and particularly the High Court exercising constitutional function
under Article 226. It was also stressed on behalf of the detenus that if a
wider construction is placed on Sub-section (9) (a) of Section 16A taking
within its sweep the High Court exercising jurisdiction under Article 226,
that Sub-section would be rendered void as offending Article 226 and hence
the narrower construction must be preferred which excludes the High Court
from the purview of the Sub-section. This contention, attractive though it
may seem because it has the merit of saving judicial scrutiny from being
rendered ineffectual and illusory, is not justified by the plain language of
Sub-section (9) (a) of Section 16A and hence, despite these weighty
considerations which have been pointed out on behalf of the detenus. I find
myself unable to accept it.

25-06-2021 (Page 295 of 305) www.manupatra.com SOAS Library Library

563. It is true that Sub-section (9) (a) of Section 16A does not specifically
refer to any court. It does not say in so many terms, as did Section 54 of
the Indian Income Tax Act, 1922, that no court shall require any officer to
produce before it the grounds, information and materials on which the order
of detention is made or the declaration under Sub-section (2) or Sub-section
(3) is based, nor does it contain any provision, like Section 14 of the
Preventive Detention Act, 1950 that no court shall allow any statement to be
made or any evidence to be given of such grounds, information and
materials. But there is inherent evidence in the Sub-section itself to show
that it is intended to prevent disclosure of such grounds, information and
materials before a court. It says that the grounds, information and materials
on which the order of detention is made or the declaration under Sub-
section (2) or Sub-section (3) is based "shall be treated as confidential and
shall be deemed to refer to matters of State and to be against public
interest to disclose". There is clearly an echo here of Section 123 of the
Indian Evidence Act. That Section is intended to prevent disclosure in a
court of "unpublished official records relating to any affairs of State" and
likewise, Sub-section (9) (a) of Section 16A must also be held to be
designed to achieve the same end, namely, prevent, inter alia, disclosure in
a court. The words "shall be treated as confidential" and " shall be deemed
to be against the public interest to disclose" are very significant. If they are
to have any meaning at all, they must be construed as prohibiting disclosure
even to a court. How can the grounds, information and materials referred to
in this Sub-section remain 'confidential, if they can be required to be
produced before a court? How can they be permitted to be disclosed to a
court when the legislature says in so many terms that it would be against
the public interest to disclose them. Even if the court holds its sittings in
camera, there would be a real danger of leakage and that might, in a given
case, jeopardize national security and weaken the efforts towards meeting
the crisis-situation arising out of the emergency. Vide observations in the
speech of Lord Wright at page 266 in Liversidge's case (supra). Sub-section
(9) (a) of Section 16A cannot, therefore, be read down so as to imply an
exception in favour of disclosure to a court.

564. But then it was contended on behalf of the detenus that if, on a proper
construction of its language, Sub-section (9) (a) of Section 16A precludes
the High Court in exercise of its jurisdiction under Article 226, from calling
for the production of the grounds, information and materials on which the
order of detention is made or the declaration under Sub-section (2) or Sub-
section (3) is based, it would impede the exercise of its constitutional power
by the High Court and make it virtually ineffective and hence it would be
void as offending Article 226. This contention requires serious consideration.

25-06-2021 (Page 296 of 305) www.manupatra.com SOAS Library Library

Prima facie it appears to be formidable, but for reasons which 1 shall
immediately proceed to state, I do not think it is well founded.

565. There can be no doubt that Article 226 is a constitutional provision and
it empowers the High Court to issue a writ of habeas corpus for enforcement
of the fundamental right conferred by Article 21 and also for any other
purpose. The High Court has, therefore, constitutional power to examine the
legality of detention and for that: purpose, to inquire and determine
whether the detention is in accordance with the provisions of law. Now,
obviously this being a constitutional power, it cannot be taken away or
abridged by a legislative enactment. If there is any legislative provision
which obstructs or retards the exercise of this constitutional power, it would
be void. There are several decisions of this Court which recognise and lay
down this proposition. It was said by this Court in one of its early decisions
in Hari Vishnu Kamath v. Syed Ahmad Ishaque and Ors.
MANU/SC/0095/1954 : [1955]1SCR1104 that the jurisdiction under Article
226 having been conferred by the Constitution, limitation cannot be placed
on it except by the Constitution itself. So also n Durga Shankar Mehta v.
Thakur Raghuraf Singh and Ors. MANU/SC/0099/1954 : [1955]1SCR267
this Court, while considering the effect of Section 105 of the Representation
of the People Act, 1951 which gave finality to an order made by the Election
Tribunal, observed that that Section cannot "cut down and affect the
overriding powers which this Court can exercise in the matter of grant of
special leave under Article 136", and the same rule was applied to Article
226 in Raj Krushna Base v. Binod Kanungo and Ors. MANU/SC/0096/1954 :
[1954]1SCR913 where the Court held that Section 105 cannot take away or
whittle down the power of the High Court: under Article 226. The same view
was taken by this Court in In re : The Kerala Education Bill, 1957
MANU/SC/0029/1958 : [1959]1SCR995 where S. R. Das, C. J., speaking on
behalf of the Court said in relation to Article 226 that "No enactment of a
State legislature can, as long as that Article stands, fake away or abridge
the jurisdiction and power conferred on the High Court by that Article". this
Court in Prem Chand Garg v. Excise Commissioner, U.P. Allahabad
MANU/SC/0082/1962 : [1963] Supp. 1 S. C. R. 885 actually struck down
Rule 12 of Order XXXV of the Supreme Court Rules which required the
petitioner in a writ petition under Article 32 to furnish security for the cost of
the respondent, on the ground that it retarted or obstructed the assertion or
vindication of the fundamental right guaranteed under Article, 32 by
imposing a pecuniary obligation on the petitioner. The principle of this
decision must equally apply in a case where the legislative provision
impedes or obstructs the exercise of the constitutional power of the High
Court under Article 226. It is, therefore, clear that if it can be shown that

25-06-2021 (Page 297 of 305) www.manupatra.com SOAS Library Library

Sub-section (9) (a) of Section 16A abridges or whittles down the
constitutional power of the High Court under Article 226 or obstructs or
retards its exercise, it would be void as being in conflict with Article 226.

566. Now, it is settled law that when a petition for writ of habeas corpus is
filed and a Rule is issued, it is the bounden duty of the Court to satisfy itself
that all the safeguards provided by law have been scrupulously observed
and the liberty of the detenu has not been taken away otherwise than in
accordance with law. Vide Khudiram Das v. State of West Bengal (supra).
The Court may also for the purpose of satisfying itself as regards the legality
of detention, call for the record of the case relating to the detention and
look into it. That is what the Court did in Biren Dutta and Ors. v. Chief
Commissioner of Tripura and Anr. MANU/SC/0076/1964 : 1965CriLJ501
There, an interim order was made by this Court "directing that the Chief
Secretary to the Tripura Administration shall forthwith transmit to this Court
the original file in respect of the detenus concerned" since the Court wanted
to satisfy itself that the Minister or the Secretary or the Administrator had
reviewed the cases of the detenus and arrived at a decision that their
detention should be continued. So also in M. M. Damnoo v. J & K State
MANU/SC/0175/1972 : 1972CriLJ597 this Court required the State
Government to produce the file containing the grounds of detention so that
the Court could satisfy itself that "the grounds on which the detenu has
been detained have relevance to the security of the State". It would,
therefore, be seen that if there is a legislative provision which prohibits
disclosure of the grounds, information and materials on which the order of
detention is based and prevents the Court from calling for the production of
such grounds, information and materials, it would obstruct and retard the
exercise of the constitutional power of the High Court under Article 226 and
would be void as offending that Article.

567. This was the basis on which Section 14 of the Preventive Detention
Act, 1950 was struck down by this Court in A. K. Gopakm's case (supra).
That Section prohibited the disclosure of the grounds of detention
communicated to the person detained and the representation-' made by him
against the order of detention and barred the court from allowing such
disclosure to be made except for purposes of a prosecution for such
disclosure. It was held by this Court-in fact by all the judges who
participated in the decision--that this Section was void as it contravened
inter alia Article 32. Kanta, C. J. observed at page 130 of the Report in a
passage of which certain portions have been underlined by me for
emphasis:

25-06-2021 (Page 298 of 305) www.manupatra.com SOAS Library Library

 By that Section the Court is prevented (except) for the purpose of
punishment for such disclosure) from being informed, either by a
statement or by leading evidence, of the substance of the grounds
conveyed to the detained person under Section 7 on which the
order was made, or of any representation made by him against
such order. It also prevents the Court from calling upon any public
officer to disclose the; substance of those grounds or from the
production of the proceedings or report of the advisory board which
may be declared confidential. It is clear that if this provision is
permitted to stand, the Court can have no material before it to
determine whether the grounds are sufficient or not. I do not mean
whether the grounds are sufficient or not. It even prevents the
Court from ascertaining whether the alleged grounds of detention
have anything to do with the circumstances or class or classes of
cases mentioned in Section 12(1) (a)-

Patanjali Sastri, J., also observed to the same effect at page 217 of the
Report:

If the grounds are too vague to enable him to make any such
representation, or if they are altogether irrelevant to the object of
his detention, or are such as to show that his detention is not bona
fide, he has the further right of moving this Court and this remedy
is also guaranteed to him under Article 32. These rights and
remedies, the petitioner submits, cannot be effectively exercised, if
he is pre-vented on pain of prosecution, from disclosing the grounds
to the Court. There is great force in this contention--The argument
(of the Attorney General) overlooks that it was recognised in the
decision referred to above that it would be open to the Court to
examine the grounds of detention in order to see whether they
were relevant to the object which the legislature had in view, such
as, for instance, the prevention of acts prejudicial to public safety
and tranquility, or were such as to show that the detention was not
bona fide. An examination of the grounds for these purposes is
made impossible by Section 14, and the protection afforded by
Article 22(5) and Article 32 is thereby rendered nugatory. It follows
that Section 14 contravenes the provisions of Article 22 (5) and
Article 32 in so far as it prohibits the person detained from
disclosing to the Court the grounds of his detention communicated
to him by the detaining authority or the representation made by
him against the order of detention, and prevents the Court from

25-06-2021 (Page 299 of 305) www.manupatra.com SOAS Library Library

 examining them for the purpose aforesaid, and to that extent it
must be held under Article 13 (2) to be void.

(emphasis supplied).
And so did the other learned Judges. It is clear from what they said that
inasmuch as Section 14 prohibited the disclosure of the grounds of
detention and prevented the Court from looking at them for the purpose of
deciding whether the detention is legal, it was violative of Article 32 which
conferred a fundamental right on a detenu to move this Court for impugning
the legality of his detention.

568. The same view was taken by a Constitution Bench of this Court in M.
M. Damnoo v. J. & K. State (supra). In fact, the observations of Kania, C. J.
in A. K. Gopalan's case (supra), which I have reproduced above, were
quoted with approval in this decision. The petitioner in this case challenged
the legality of his detention by the State of Jammu & Kashmir on several
grounds. One of the grounds was that the proviso to Section 8 of the Jammu
& Kashmir Preventive Detention Act was void as it conflicted with Section
103 of the Constitution of Jammu & Kashmir. Section 103 was in the same
term as Article 226 and it conferred power on the High Court of Jammu &
Kashmir to issue inter alia a writ of habeas corpus Section 8 of the
Preventive Detention Act required the detaining authority to communicate to
the detenu the grounds on which the order of detention was made, but the
proviso to that Section dispensed with the requirement in case of "any
person detained with a view to preventing him from acting in any manner
pre-judicial to the security of the State if the authority making the order--
directs that the person detained may be informed that it would be against
the public interest to communicate to him the grounds on which his
detention has been made". The argument of the petitioner was that the
proviso to Section 8 of the Preventive Detention Act was violative of Section
103, since it debarred the High Court and this Court from calling for the
grounds of detention and thus made it virtually impossible for the High
Court and this Court to examine the legality of the detention. this Court
agreed that there would have been some force in the contention of the
petitioner, if the High Court and this Court were prevented from calling upon
the State Government to produce the grounds of detention, but it pointed
out that the proviso to Section 8 was not ultra vires "because the proviso
and the Act do not bar the High Court and this Court from looking into the
validity of the detention". this Court, after referring to the observations
made by Kania. C.J. in A. K. Gopalan's case (supra) in regard to Section 14
of the Preventive Detention Act, 1950 said:

25-06-2021 (Page 300 of 305) www.manupatra.com SOAS Library Library

 But fortunately there is no similar provision in this Act and it leaves
the High Court and the Supreme Court free to exercise the
jurisdiction by calling upon the State in appropriate cases to
produce before it the grounds of detention and other material in
order to satisfy itself that the detenu was being detained in
accordance with law. If it were not so, we would have difficulty in
sustaining the proviso.

It will, therefore, be seen that prima facie this Court was of the view that if
the proviso to Section 8 had debarred the High Court and this Court from
requiring the grounds of detention to be produced "before them, it would
have been difficult to sustain that proviso.

595. The learned Additional Solicitor General, however, sought to distinguish

these two decisions and contended that Sub-section (9) (a) of Section 16A
merely enacts a rule of evidence and it cannot, therefore, be said to
obstruct or retard the exercise of the constitutional power of the High Court
under Article 226 so as to be in conflict with that Article. Now, there can be
no doubt, although at one time in the course of his arguments Mr. Shanti
Bhushan contended to the contrary, that a rule of evidence can always be
enacted by the legislature for the purpose of regulating the proceedings
before the High Court under Article 226. A rule of evidence merely
determines what shall be regarded as relevant and admissible material for
the purpose of enabling the Court to come to a decision in the exercise of its
jurisdiction and it does not in any way detract from or affect the jurisdiction
of the Court and it cannot, in the circumstances, be violative of Article 226.
But in order that it should not fall foul of Article 226, it must be a genuine
rule of evidence. If in the guise of enacting a rule of evidence, the
legislature in effect and substance disables and impedes the High Court
from effectively exercising its constitutional power under Article 226, such
an enactment would be void. It will be colourable exercise of legislative
power. The legislature cannot be permitted to violate a constitutional
provision by employing an indirect method. If a legislative provision, though
in form and outward appearance a rule of evidence, is in substance and
reality something different, obstructing or impeding the exercise of the
jurisdiction of the High Court under Article 226, the form in which the
legislative provision is clothed would not save it from condemnation. Let us,
therefore, examine whether Sub-section (9) (a) of Section 16A enacts a
genuine rule of evidence or it is a colourable piece of legislation in the garb
of a rule of evidence. If it is the former, it would be valid; but if it is latter, it
would be an indirect and covert infringement of Article 226 and hence void.

25-06-2021 (Page 301 of 305) www.manupatra.com SOAS Library Library

596. Now, it is well settled that in order to determine the true character of a
legislative provision, we must have regard to the substance of the provision
and not its form. We must examine the effect of the provision and not be
misled by the method and manner adopted- or the phraseology employed.
Sub-section (9) (a) of Section 16A is inform and outward appearance a rule
of evidence which says that the grounds, information and materials on
which the order of detention is made or the declaration under Sub-section
(2) or Sub-section (3) is based shall be treated as confidential and shall be
deemed to refer to matters of State and be against the public interest to
disclose. But in substance and effect, is it a genuine rule of evidence? The
argument on behalf of the detenus was that it is only a legislative device
adopted by the legislature for the purpose of excluding the grounds,
information and materials from the scrutiny of the Court and thereby
making it virtually impossible for the Court to examine the legality of the
detention and grant relief to the detenu. If the veil is removed, contended
the detenus, the position is no different from that obtaining in A. K.
Gopalan's case (supra) where Section 14 of the Preventive Detention Act,
1950 was struck down as constituting a direct assault on Article 226. It was
pointed out that, in every case of detention, the grounds, information and
materials would not necessarily refer to matters of State and be against the
public interest to disclose. Since, even orders of detention purported to be
made under Section 3 are brought within the purview of Sub-section (9) (a)
of Section 16A, the grounds, information and materials in cases of such
detention may be wholly unrelated to the objects and purposes set out in
Section 3 and in that event, they would mostly have nothing to do with
matters of State and it may not be possible to say that their disclosure
would injure public interest. But even so, Sub-section (9) (a) of Section 16A
surrounds such grounds, information and materials with the veil of secrecy
and, to use the words of Mahajan, J. in A. K. Gopalan's case (supra), places
"an iron curtain around them". This Sub-section, according to the detenus,
compels the Court to shut its eyes to reality and presume by a legal fiction
that in every case, whatever be the actuality--and in many cases the
actuality may be otherwise--the grounds, information and materials shall be
deemed to refer to matters of State and shall be against the public interest
to disclose. This contention of the detenus is undoubtedly very plausible and
it caused anxiety to me. but on deeper consideration, I think it cannot be
sustained.

597. It is significant to note that Sub-section (9) (a) of Section 16A is a

provision enacted to meet the emergency declared under the Proclamations
dated 3rd December, 1971 and 25th June, 1975. Vide Sub-section (1) of
Section 16A. It comes into operation only when there is a declaration made

25-06-2021 (Page 302 of 305) www.manupatra.com SOAS Library Library

under Sub-section (2) or Sub-section (3) that the detention of the person
concerned is necessary for dealing effectively with the emergency. The
condition precedent to the applicability of the Sub-section is that there
should be a declaration under Sub-section (2) or Sub-section (3) in respect
of the person detained. It may also be noted that though the words "or
purported to be made" were added after the words "an order of detention is
made" in the Sub-section by the Maintenance of Internal Security
(Amendment) Act, 1976, no such or similar words were added in relation to
the declaration under Sub-section (2) or Sub-section (3). Sub-section (9)
(a) of section 16A, therefore, assumes a valid declaration under Sub-section
(2) or Sub-section (3) and it is only when such a declaration has been
made, that Sub-section (9) (a) of Section 16A applies or in ether words it is
only in cases where a person is detained in order to deal effectively with the
emergency that the disclosure of the grounds. information and materials is
prohibited by Sub-section (9) (a) of Section 16 A.

598. I have already pointed out how emergency can create a crisis situation
imperiling the existence of constitutional democracy and jeopardizing the
functioning of the social and political machine. It is therefore, reasonable to
assume that where a person is detained in order to deal effectively with the
emergency, the grounds, information and materials on which the order of
detention is made or the declaration under Sub-section (2) or Sub-section
(3) is based would, by, and large, belong to a class of documents referring
to matters of State which it would be against public interest to disclose.
What was observed by two of the Law Lords in Liversidge's case (supra)
would be applicable in such a case, Viscount Maugham said at page 221 of
the Report. "it is obvious that in many cases he will be acting on information
of the most confidential character, which could not be communicated to the
person detained or disclosed in court without the greatest risk of prejudicing
the future efforts of the Secretary of State in this and like matters for the
defence of the realm--It is sufficient to say that there must be a large
number of cases in which the information on which the Secretary of State is
likely to act will be of a very confidential nature," and Lord Wright also
observed to the same effect at page 266 of the Report : "In these cases full
legal evidence or proof is impossible, even if the Secretary does not claim
that disclosure is against the public interest, a claim which must necessarily
be made in practically every case, and a claim which a judge necessarily has
to admit." In view of the fact that the detention is made in order to deal
effectively with the emergency, the grounds, information and materials
would in most cases be confidential and if a claim of privilege were made
under Section 123 of the Indian Evidence Act, it would almost invariably be
held justified. The Legislature, therefore, taking into account the privileged

25-06-2021 (Page 303 of 305) www.manupatra.com SOAS Library Library

character of the grounds, information and materials in the generality of
cases, enacted Sub-section (9)(a) of Section 16A laying down a rule that the
grounds, information and materials shall be deemed to refer to matters of
State which it would be injurious to public interest to disclose, instead of
leaving it to the discretion of the detaining authority to make a claim of
privilege in each individual case and the court to decide it. The rule enacted
in Sub-section (9) (a) of Section 16A bears close analogy to a rule of
conclusive presumption and in the circumstances, it must be regarded as a
genuine rule of evidence. I may make it clear that if the grounds,
information and materials were not, by and large, of such a character as to
fall within the class of documents relating to matters of State which it would
be injurious to public interest to disclose, I would have found it impossible
to sustain this statutory provision as a genuine rule of evidence. If the
grounds, information and materials have no relation to matters of State or
they cannot possibly be of such a character that their disclosure would
injure public interest, the Legislature cannot, by merely employing a legal
fiction, deem them to refer to matters of State which it would be against
public interest to disclose and thereby exclude them from the judicial ken.
That would not be a genuine rule of evidence : it would be a colourable
legislative device --a fraudulent exercise of power. There can be no blanket
ban on disclosure of the grounds, information and materials to the High
Court or this Court, irrespective of their true character. That was the reason
why Section 14 of the Preventive Detention Act, 1950 was struck down by
this Court in A. K. Gopalan's case (supra) and this Court said in M. M.
Damnoo's case (supra) that if the proviso to Section 8 had debarred the
High Court and this Court from calling for the grounds of detention and
looking into them, it would have been difficult to sustain that proviso. But
here, on account of the declaration under Sub-section (2) or Sub-section
(3), which, as I said above, must be a valid declaration in order to attract
the applicability of Sub-section (9) (a) of Section 16A, the grounds,
information and materials in almost all cases would be of a confidential
character falling within the class of documents privileged under Section 123
and hence the rule enacted in the Sub-section genuinely partakes of the
character of a rule of evidence. It may be pointed out that if the declaration
under Sub-section (2) or Sub-section (3) is invalid Sub-section (9) (a) of
Section 16A will not be attracted and the grounds, information and materials
on which the order of detention is made would not be privileged under that
Sub-section. I am, therefore, of the view that Sub-section (9) (a) of Section
16A enacts a genuine rule of evidence an it does not detract from or affect
the jurisdiction of the High Court under Article 226 and hence it cannot be
successfully assailed as invalid.

25-06-2021 (Page 304 of 305) www.manupatra.com SOAS Library Library

599. I accordingly answer the first question by saying that the Presidential
Order dated June 27, 1975 bars maintainability of a petition for a writ of
habeas corpus where an order of detention is challenged on the ground that
it is vitiated by mala fides, legal or factual, or is based on extraneous
considerations or is not under the Act or is not in compliance with it. So far
as the second question is concerned, I do not think there is any warrant for
reading down Sub-section (9) (a) of Section 16A so as to imply an exception
in favour of disclosure to the Court, and, on the interpretation placed by me
on that provision, T hold that it does not constitute an encroachment on the
constitutional jurisdiction of the High Court under Article 226 and is
accordingly not void. In the circumstances, I allow the appeals and set aside
the judgments of the High Courts impugned in the appeals.

ORDER

600. By majority--

1. In view of the Presidential Order dated 27 June 1975 no person

has any locus standi to move any writ petition under Article 226
before a High Court for habeas corpus or any other writ or order or
direction to challenge the legality of an order of detention on the
ground that the order is not under or in compliance with the Act or
is illegal or is vitiated by malafides factual or legal or is based on
extraneous considerations;

2. Section 16A(9) of the Maintenance of Internal Security Act is

constitutionally valid;

3. The appeals are accepted. The judgments are set aside;

4. The petitions before the High Courts are now to be disposed of in

accordance with the law laid down in these appeals.

© Manupatra Information Solutions Pvt. Ltd.

25-06-2021 (Page 305 of 305) www.manupatra.com SOAS Library Library