PETITIONER:
UNION OF INDIA ETC.
Vs.
RESPONDENT:
BHANUDAS KRISHNA GAWDE AND ORS. ETC.
DATE OF JUDGMENT25/01/1977
BENCH:
SINGH, JASWANT
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
CITATION:
1977 AIR 1027 1977 SCR (2) 719
1977 SCC (1) 834
ACT
Conservation of Foreign Exchange and Prevention of
Smuggling Activities (Maharashtra Conditions of Detention)
Order 1974,--Validity of--High Court--If could examine the
vires of the Act--If could entertain a petition under Art.
226 of the Constitution during Emergency.
HEADNOTE
The Conservation of Foreign Exchange and Prevention of
Smuggling Activities (Maharashtra Conditions of Detention)
Order, 1974 provides that security prisoners shall not be
allowed to supplement their diet even at their own expense,
restricts the security prisoner from receiving funds from
relatives and friends; restricts the number of meetings with
relatives and friends and medical attention is allowed only
through the Medical Officer of the prison in the same way as
a convicted criminal and so on.
Writ Petitions field by the detenus under Arts. 226, and
227 of the Constitution, two High Courts .have struck down
the Order as ultra vires.
On appeal it was contended by the State that the right
of a person to move. any Court for the enforcement of the
rights conferred by Arts. 14, 19, 21 and 22 of the Constitu-
tion having been suspended by the Presidential Orders of
June 27, 1975 and January 8, 1976 issued under Art. 359(1)
for the period during which the Proclamation of Emergency
was inforce, no person had locus Mandi to move an appli-
cation under Art. 226 for the ’issue of a writ to enforce
any right to personal liberty.
Allowing the appeals,
(per Ray, C.J. and Jaswant Singh, J.)
HELD: The Writ Petitions were not maintainable and the
High Courts were clearly in error in passing the impugned
directions which were not warranted by any relevant law
including the law relating to preventive detention. [732 D]
1. It is well settled by the decisions of this Court
that if a person was deprived of his personal liberty not
under the ’Defence of India Act, 1962 or any rule or order
made thereunder but in contravention thereof, his locus
standi to move any court for the enforcement of the rights
conferred by Arts. 21 and 22 was not barred. On the other
hand since the Presidential Orders dated June 27, 1975 and
January 8, 1976 were not circumscribed by any limitation,
their applicability was not made dependent upon the fulfil-
ment of any conditions precedent. They imposed a total or
blanket ban on the enforcement of the fundamental rights
conferred by Arts. 19, 21 and 22. There is,therefore, no
room for doubt that these Presidential Orders unconditional-
ly suspended the enforceability of the right conferred upon
any person, including a foreigner, to move any Court for the
enforcement of the rights conferred by Arts. 14, 19, 21 and
22 of the Constitution. [742 E, G-H]
Additional District Magistrate, Jabalpur v. Shiva Kant
Shukla [1976] 2 S.C.C. 521--A.I.R. 1976 S.C. 1207, Makhan
Singh v. State of Punjab [1964] 4 S.C.R. 797--A.I.R. 1964
S.C. 381, State of Maharashtra v. Prabhakar Pandurang Sanz-
giri [1966] 1 S.C.R. 702--A.I.R. 1966 S.C. 424, Dr. Ram
Manohar Lohia v. State of Bihar [1966] 1 S.C.R. 709--A.LR.
1966 S.C. 740, A.K. Gopalan v. The State of Madras [1950]
S.C.R. 88--A.I.R. 1950 S.C. 27 and Kharak Singh v. State of
U.P. [1964] 1 S.C.R. 332--A.I.R. 1963 S.C. 1295, followed,
720
2. When a person has no locus standi to move any Court
to challenge his order of detention, the High Court could
not issue directions disregarding the provisions of the
Act, which is a self-contained code, and particularly ss. 5
and 12(6) which are mandatory. [745 F-H]
Maqbool Hussain v. The State of Bombay [1953] S.C.R. 730,
followed.
3. As Articles 19, 21 and 22 of the Constitution have
been suspended during the operation of the Proclamation of
Emergency, the Conservation of Foreign Exchange and Preven-
tion of Smuggling Activities Act and the orders made or
passed thereunder were not open to challenge on the ground
of their being inconsistent with or repugnant to Arts. 14,
19, 21 and 22 of the Constitution in view of the Presiden-
tial Orders, dated June 27, 1975 and January 8, 1976. [742
G-H]
In the instant case the detenus covertly sought to
enforce the vary rights which were suspended. It was not
open to the High Courts to strike down the impugned clauses
of the Maharashtra Conditions of Detention Order 1974.
4. The avowed object of the Act, as mainrest from its
preamble, being the conservation and augmentation of foreign
exchange and the prevention of smuggling activities secretly
organised and carried on, it is essential that contact 0f
the detenus with the outside world should be reduced to the
minimum. It is for the State Governments who are in full
possession of all material facts and not for the Courts who
have neither the necessary knowledge of the facts nor the.
legal competence, to regulate conditions of detention Of
persons, including their maintenance, interviews or communi-
cations with others. [746 A-C]
5. When a person is detailed, he can exercise only such
privileges as are conferred on him by the order of detention
or by the rules governing his detention.
State of Maharashtra v. Prabhakar Pandurang Sanzgiri
[1966] I SCR 702AIR 1966 S.C. 424 referred to.
6. The mere fact that a detenu is confined in a prison
for the sake of administrative convenience does not
entitle him to be treated as a civil prisoner or to be
governed by the provisions of the Prisons Act. The view of
the High Courts to the contrary cannot be sustained. [746
D-E]
Maqbool Hussatn v. The State of Bombay [1953] S.C.R. 730,
followed.
7. The contention that the Presidential Orders did not
bar the Court from examining the vires of the detention
orders because what was sought to be enforced was not a
right of personal liberty but a redress against unreasona-
bleness of the order was misconceived. The Presidential
Orders imposed a blanket ban on every judicial enquiry
into the validity of an order depriving a person of his
personal liberty irrespective of whether it stems from the
initial order directing his detention or from an order
laying down the conditions in his detention. [743 A-E]
Additional District Magistrate, .Jabalpur v. Shiva Kant
Shukla [1976] 2 S.C.C. 521--A.I.R. 1976 S.C. 1207 followed.
(Per Beg. J.) Concurring.
721
The High Courts, acting under Art. 226 have not been
given the power to interfere in any matter involving the
assertion or enforcement of a right to personal freedom by
the detenus during an Emergency, when exercise of such power
by the High Courts is suspended. In times of Emergency the
remedy for all the grievances of the detenus lies with the
executive and administrative authorities of the State. [754
B-C]
1. Shukla’s case held that ’it was not the fundamental
rights which were suspended by the Presidential Order under
Art. 359 but the right to move any Court for the enforcement
of such right conferred by Part III as may be mentioned in
the Order which is suspended for the duration of_the Emer-
gency. This mean that it is the ’jurisdiction of Courts, to
the extent to which a petitioner seeks to enforce the funda-
mental rights mentioned in the Presidential Order, which is
suspended. [749 G-H]
Additional District Magistrate, Jabalpur v. Shivakant
Shukla AIR 1976 SC 1283, applied.
A.K. Gopalan v. State of Madras, [1950] SCR 88, Kharak
Singh v. State of U.P., [1964] 1 SCR 332, 1. C. Golakanath
v. State of Punjab [1967] 2 SCR 762.
His Holiness Kesavananda Bharati Sripadagalavaru v.
State of Kerala, [1973] Supp. SCR 1 and Haradhan Saha v. The
State of West Bengal & Ors., [1975] (1) SCR 778--AIR 1974
SCR 154 referred to.
2. The term "any other purpose" in Art. 226 means pur-
poses similar to those for which one of the specified writs
would issue subject to certain exceptions The writ of habeas
corpus is wider in scope than the enfrocement of fundamen-
tal rights which are available against the State only and
its officers and agents. But so far as mere directions or
orders for any other purpose are concerned, the jurisdiction
of High Courts does not extend to making orders against
private individuals. On the other hand, if an officer is
duly empowered and has passed a detention order, that order
is not capable of being questioned under Art. 226. All
enquiry into the conditions of exercise of such. power is
barred under the constitutional provisions during the emer-
gency.
[750 D-E, H, 751 A, C-D]
3. In the instant case the remedy sought was clearly
covered by the Presidential inhibition which operates
against the High Courts. The claims made by the detenus
were not matters which the High Court could consider in
petition under Art. 226 of the Constitution. [751 E-F]
4. If the object of a proceeding is to enforce the
fundamental right, to personal freedom, a High Court’s
jurisdiction under Art. 226 is barred during an Emergency
even if it involved adjudication on the question of vires of
a rule made under enactments authorising preventive deten-
tion. It is impossible to invalidate a rule either intended
for or used for regulating the conditions of detention of a
person detained under one of the Acts authorising preven-
tive detention on the ground that the rule could only be
used for persons in punitive detention. The attack on the
validity of such a rule cannot succeed on the ground that
the object of the rule should be shown to be preventive and
not punitive. [754 E-F]
5. Shukla’s case indicates that Arts. 19 and 21 embrace
every aspect of an alleged infringement of the right of
personal freedom by a State authority or officer purporting
to act under a law. Even if the action violates, a protec-
tion conferred by Art. 21 upon citizens as well as non-
citizens in ordinary times, the result of the suspension, of
the protection given by Art. 21 must necessarily be that the
protection cannot be enforced during an Emergency. If that
be the effect of the Presidential declaration under Art.
359, the Court cannot go behind this declaration of law and
the express letter of the law as embodied in the Constitu-
tion and enforce what may be covered by the right to person-
al freedom in ordinary times whether it parades under the
guise of natural law or statutory law or constitutional law.
[755 F-H]
722
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 310
& 363 of 1976.
(From the Judgments and Orders dated the 1st September,
1975 of the Bombay High Court in Criminal Appln. No. 20/75)
and
Criminal Appeals Nos.: 348-349, 350, 195-201, 170-176, &
Crl. As. Nos. 181-182 of 1976.
(Appeals by Special Leave Petitions from the Judgments
and Orders dated the 14th/18th July, 1975, 9th July, 1975,
3rd April, 1976, 13th March, 1976, and 19th March, 1975, of
the Bombay High Court in Criminal Appln. Nos. 794, 784/75,
833-839/76 and 614620/76 and 385-386/76 respectively and
Criminal Appeal No. 397 of 1976.
(Appeals by Special Leave from the Judgments and Orders
dated the 23rd March, 1976 and 6th April, 1976 of the Karna-
taka High Court in Writ Petitions Nos. 1454 and 2096/76
respectively) and
Criminal Appeal No. 397 of 1976.
(From the Judgment and Order dated the 3rd September,
1975 of the Bombay High Court in Criminal Application No.
792/75) and
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 573 of 1976.
(Appeal by Special Leave from the Judgment and Order
dated the 26th March, 1976 of the Bombay High Court in
Criminal Appln. No. 31 of 1976) and
Special Leave Petitions (Civil) Nos. 2443-2444, 2864,
3061 of 1976.
(From the Judgments & orders dated 8-4-76, 7-4-76,
12-4-76 & 8-4-76 of the Karnataka High Court in W.P. Nos.
2918/76, 6693/75, 1977, 2012 & 1295/76) and
Dy. Nos. 3002 & 3003 0f 1976.
(From the Judgments and Orders dated the 8-4-1976 of
the Karnataka High Court in Writ Petitions Nos. 2355 and
1968 of 1976 respectively) and
Civil Appeals Nos. 1365-1367 of 1976.
(From the Judgment and Order dated the 23-3-1976 of
the Karnataka High Court in Writ Petitions Nos. 2293, 2477
and 2503/76 respectively) and
723
Civil Appeal No. 434 of 1976.
(From the Judgment and Order dated the 1-4-1976 of the
Karnataka High Court in IA No. IV in Writ Petition No.
4177 of 1970).
Narayan Nettar for the appellants in Crl. A. 210 and CAs
Nos. 1365-1367/76 and Crl. A. 192 and for Petitioners in
SLPs (Civil) Nos. 2443, 2444, 2864, 2865 and 3061/76 and R.
3 in CA 434/76.
V.P. Raman, Addl. Sol. Genl. (In Crl. A 310, 348, 397,
195 and 181/76), M/s. R.N. Sachthey and M.N. Shroff with him
for the Appellant in Crl. A. 310, 348, 397, 349, 350, 363,
170-176, 181,182 add 195-201 and C.A. 573/76 and 434/76 and
for R. 3 in Crl. A. 310 and 348 and RR 2 and 4 in Crl. A.
350/76.
Jail Petitioners for the Petitioners in Petn. Under Dy. No.
3002 3003/76.
H.M. Seervai (In Crl. A. Nos. 310, 340, 349, 363 and CA
573/ 76), Ashok H. Desai, A.J. Rane. (In CA 573/76), L R.
Gagrat and B.R. Agarwala for RR. 1 and 2 in Crl. A. 310, 363
and 397 and R. 1 in Crl. As. 348-349 and RR in CA 573/76.
A.K. Sen, R.H. Dhebar and B.V. Desai for R. 1 in Crl. A.
No. 350/76.
V.M. Tarkunde, Ashok H. Desai and V.N. Ganpule for RR in
Crl. A. 170 to 176, 181, 182, 195-201/76.
H.M. Seervai, Dr. N. M. Ghatate, S. Balakrishnan,
S. S. Khanduja, (Miss) Rani Jethamalani and Altar Ahmed for
R. 1 in CA 434/76.
The Judgment of A.N. Ray C.J. and Jaswant Singh, J. was
delivered by Jaswant Singh J., Beg, J. gave a separate
opinion.
JASWANT SINGH J. These appeals, some of which have been
preferred by certificates granted under Articles 133 and
134(1)(e) of the Constitution and Others by Special leave
granted by this Court under Article 136 of the Constitution,
and which are directed against various final and interim
judgments and orders of the High Courts of Bombay and Karna-
taka passed in writ petitions filed under Articles 226 and
227 of the Constitution by or on behalf of certain persons
who are detained under orders of the appropriate authorities
made under section 3 of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974 (Act No. 52
of 1974) (hereinafter referred to as ’the Act’) complaining
of certain constraints imposed on them under orders made
under section 5 of the Act and claiming facilities in excess
of those provided in the said orders, shall be disposed 0f
by this judgment. A gist of the orders appealed against
12--112SCI/77.
724
and particulars of the petitions in which they have been
passed given in the sub-joined table for facility of refer-
ence :---
FIRST BATCH OF APPEALS
1.Sr. No.
2.No. of appeal
3. Date of the order appealed against
4. No. of the application in which the order appealed
against has been passed
5. Name of the High Court which passed the order
6. Name of the detenu in whose favour or against whom the
order against has been passed.
7. substance of the order appealed against
Sr.No.-1
2. Crl. A.No. 310/1976
3. 1-9-1975
4. Crl. Application No. 20/1975
5. Bombay
6. Krishna Budha Gawda
7. Clauses 9(iii) 10, 12(i)and (xi), 19,
20, 21, 23, 24 and 31 of the Conservation of
Foreign Exchange and Prevention of Smugling
Activities (Maharashtra Conditions of Deten-
tion) Order, 1974 struck down and directions
issued requiring the detaining authority
to keep the detenu under detention as a
’civil prisoner’ within the terms of and in
all respects in conformity with the provi-
sions of the Prisons Act, 1894 and further
directing the detaining authority to,permit
the detenu to maintain himself by
receiving such funds not exceeding the sum of
Rs. 200/- per month us he may desire to
have lot that purpose from any of his rela-
tives or friends, and to purchase or receive
from private sources at proper hours food.
clothing, bedding, and other necessaries,
including toilet requisites, toilet soap.
cigarettes and tobacco, subject to examina-
tion gild to such rules, if any, as may be
approved by the Inspector General , as also
to permit the detenu to meet persons with
whom he may desire to communicate at proper
times anti tinder proper restrictions.
Sr. No. 2.
2. Crl. A. No.
3. -do-
4. -do-
5. -do-
6. -do-
7. -do-
Sr.No. 3
2. Crl. A. No. 397/1976
3. 3-9-1975
4. Crl. Application No. 792/1975
5. Bombay ram Kewalji
6. Ghamandi Gowani
7. [Nil]
SECOND BATCH OF APPEALS
Sr. No.1.
2. Crl. A. No.348/1976
3. Interim order dated 14-7-1975
4. Crl. Application No. 794/1975
5. Bombay
6. Ramlal Narang
7. Directions issued to the detaining
authority to permit the detenu (1) to have his
food from out side at his own expense, subject
to routine check: (2) to have one interview
with his legal advisers for two hours in the
presences
725
of a Customs Officer, but not within
Iris hearing; (3) to have one interview per
month with ally Of tile Family members,
which should be in accordance with and
subject to subclauses (iii), (vi), (vii)
and (ix)of clause 12 of the Conservation
of Foreign Exchange and Prevention of Smug-
gling Activities (Maharashtra Conditions of
Detention) Order, 1974.
2. Crl. A. No 348/1976
3. Interim order dated 14-7-1975
4. Crl. Application No. 794/1975
5. Bombay
6. Yusuf Abdulla Patel
7. Directions issued to the detaining
authority (1)
to permit the detenu to have his food
from outside at his own expense subject to
routine check,(2) to have the detenu exam-
ined at least once a week by Doctors at
St. George’s Hospital and to permit the
detenu’s
doctor being present at such examination.
(3) to
permit the detenu to take specially prescribed
medicines at his own cost.(4) not to
remove the detenu to another jail from
the Arthur Road Prison, Bombay, without
giving at least 24 hours notice in writing
(excluding Sundays and other holidays) to
his Attorneys, (5) to permit the detenu to
have one interview with his legal advis-
ers for two hours in the presence of a
Customs Officer but not within his hear-
ing and (6) to permit the detenu to have
interview with relatives as per clause 12(ii)
of Maharashtra Conditions of Detention
Order, 1974.
THIRD BATCH OF APPEALS
Sr.No .1
2. Crl. As. Nos. 195-201/1976
3. 3-4-1976
4. Crl. Applications 833-839/1976
5. Bombay
6. Ratan Singh Gokaldas Rajda & others
7. Directions issued to the detaining au-
thority to have the detenus taken under
custody to the site of the meeting of the
Bombay Municipal Corporation and enable
them to exercise their votes at the
mayoral election.if and when it takes place.
Sr.No. 2
2. Crl. As. Nos. 170-176/1976
3. 13-3-1975
4. Crl. Applications 614-620/1975
5. Bombay
6. Smt. Ahilya Pandurang Rangankar and others
7. While rejecting the application
for release on parole directions
issued the detaining in authority to
have the detenus taken under custody
to vote at the election of statutory Com-
mittees to be held on 15-3-1976 at 3 P.M.
at the Bombay Municipal Corporation Bom-
bay.
726
Sr.No. 3
2. Crl. As. Nos. 181-182/1976
3. 19-3-1976
4. Crl. Applications Nos. 385-386/1976
5. Bombay
6. Ganesh Prabhakar Pradhan and others
7. Directions issued to the detaining author-
ity to have the the detenus taken under custo-
dy to the Maharashtra Legislative Council Hall
for the limited purpose of enabling them to
exercise their right to the statutory Committ-
ess on 30-3-1976.
Sr.No. 4
2. Crl As. Nos. 1365-67/1976
3. 23-3-1976
4. W. Ps. Nos. 2293, 2477, 2503/1976
5. Karnataka
6. C.R. satish and Others
7. Directions issued to the detaining
authority to have the detenus taken not
later than 11 A.M. on 24-3-1976 under
police escort to the place where the election
of the President of the Town Municipal
Council, Chikmaglur was to be held and
after they exercised their right to vote to
have them brought back under police escort to
the jails in which they were then detained.
Sr. No. 5
2. C.A. Nos. 434/1976
3. 1-4-1976
4. I.A. No. IV W.P. No. 4177/1976
5. Karnataka
6. L.K. Advani
7. Directions issued to the detaining
authority to have the detenu taken under
police escort to New Delhi so as to enable him
to be in Rajya Sabha on 3-4-1976 before 10.45
A.M. and to allow him to take oath of affirma-
tion and thereafter to take his seat in Rajya
Sabha and to have him brought back under
police escort to the Central Jail Banglore on
3-4-1976 or on 4-4-1976 whichever date is
convenient to the detaining authority.
FOURTH BATCH OF APPEALS
Sr. No. 1
2. Crl. A. No. 192/1976
3. 23-3-1976
4. W.P. Nos 1454/1973
5. Karnataka
6. Gurunath Kulkarni
7. Directions issued to the detaining
authority (1) to have the detenu taken under
police escort on or before 3-4-1976 to the
shops in Bellary to enable them to purchase
stationary required for the examination and
to the college where detenu had 10 get the
admission ticket to the examination. (2) to
have the detenu taken on each day of the
examination under police escort from the jail
at Bellary to the Examination centre and to
see that he reached such centre at least
20 minutes before the commencement of the
examination and was brought back after the
day’s examination was over from such centre
to the jail under police escort. Directions
also issued to the jail authorities to
ascertain well in advance the programme
of the examination which the detenu had to
take.
727
Sr. No. 2
2. Crl. A. No. 210/1976
3. 6-4-1976
4. W.P. No. 2096/1976
5. Karnataka
6.K.T. Shivanna
7. Directions issued to the detaining
authority to release the detenu on
parole on the afternoon of 10-4-1976. The
detaining authority also directed to arrange
to have the detenu either taken under police
escort to his home at Novavirakare, Tiprut
Talu, starting from Bangalore on the
afternoon of 10-4-1976 and to have him
brought back under police escort from his home
to the Central Jail, Bangalore, starting
from Honavinskere on the afternoon of
12-4-1976 OR release the detenu at the gate
of the Central jail Bangalore on his
executing a self bound for Rs. 6,000/-
undertaking to surrender himself to the jail
authorities on 12-4-1976 not later than 6
P.M. and not take part in political activ-
ities or other activities detrimental to the
security of the State during the period
he remained on parole. The police, however
given the liberty to keep a watch around the
detenu’s house and to follow his movements
outside his house during the period he
continued on parole.
Sr.No. 3
2. S.L.P.(Civil) No. 2443/1976
3. 8-4-1976
4. W.P. No.2918/1972
5. Karnataka
6. K.A.Nagaraj
7. Directions issued to the detaining
authority (1) to release the detenu on pa-
role, (2) to have the detenu taken on the
evening of 9-4-1976 under police escort to
his houses and brought back to the Central
Jail, Bangalore. under police escort on the
evening of 10-4-1976; and (3) again have the
detenu taken on the evening 01 14-4-1976
under police escort to his house and
brought back under police escort to the
Central Jail, Bangalore, on the evening of
15-4-1976. The police, however, given tile
liberty to keep a watch around the house of
the detenu and to follow his movements
during the period he remained on parole.
Sr. No. 4
2. S.L.P.(Civil) No. 2444/1976
3. 8-4-1976
4. W.P. No.6693/1975
5. Karnataka
6. P.B.Satyanarayana Rao
7. Directions issued to the detaining
authority to release the detenu on
parole on 14-4-1976 and to have him taken
under police escort to his home and brought
back under police escort to the jail On the
afternoon of 16-4-1976. The police, howev-
er, given the liberty to keep a watch around
the house of the detenu and to watch his
movement outside his house during his release
on parole.
728
Sr. No. 5
2. S.L.P.(Civil) No. 2864/1976
3. 7-4-1976
4. W.P. No. 1977/1976
5. Karnataka
6. M.Sanjeev Gatti
7. Directions issued to the detaining author-
ity either
(i) to arrange the detenu taken under police
escort to his native place. Bangalore,
starting from Bangalore on 8-4-1976 and
brought back under police escort to the
Central Jail Bangalore on 14-4-1976.
and
(ii) to release the detenu at the gate
of the Central Jail. Bangalore. on the
morning of 8-4-1976 his executing a sell-
bond of Rs. 5,000/- undertaking to surrender
himself to the jail authorities not later
than 5 P.M. on 15-4-1976 and not to take
part in any political activity or other
activity detrimental to the security of the
State.
The police, however, given the
liberty to keep a watch around the house
houses in which the detenu stayed and to
follow his movements outside the house or
houses during the period he remained on
parole.
Sr.No. 6
2. S.L.P. (Civil) No. 2865/1976
3. 8-4-1976
4. W.P. No. 2012/1976
5. Karnataka
6. V.S. Acharya
7. Directions issued to the detaining
authority either to arrange to have the
detenu taken under police escort from Central
Jail. Bangalore, to Udupi starting from
Bangalore on the morning of 13-4-1976 and to
have him brought back under police escort from
Udupi starting there from on the morning of
21-4-1976 or release the detenu at the gate
of the Central Jail, Bangalore, on his execut-
ing a self-bond lot Rs. 5,000/- undertaking
not to take part in any political activity
or in any activity detrimental to the
security of the State during the period
he remained on parole as to surrender him-
self to the Jail authorities not later
than 6 P.M. on 21-4-1976. The police
however, given the liberty to keep a watch
over the
detenu and to follow him movements during
the period he remained on parole.
Sr.No. 7
2. S.L.P. (Civil) No. 3061/1976
3. 8-4-1976
4. W.P. No. 1295/1976
5.Karnataka
6. C.V.Shankar Rao Jadhav
7. Directions issued to the detaining
authority either (1) to arrange to have
the detenu taken too his home at Nandya
under police escort starting from Bangalore on
the evening of 10-4-1976 and to have him
brought back under police escort to the
Central Jail Bengal starting from Nandya on
the morning 13-4-1977.
729
or (2) to release him at the gate of the
Central Jail, Bangalore on the evening of
10-4-1976 on his executing a self-bond for
Rs. 5,000/- undertaking to surrender himself
to the Jail authorities not later than 4
P.M. on 12-4-1976 and not to take part in
any political activity or other activity
detrimental to the security of the State
during the period of his release on parole.
The police, however, given the liberty to keep
a watch around the
detenu’s house and to follow his
movements outside his house during the
period of his release on parole.
FIFTH BATCH OF APPEALS
Sr.No. 1
2. Dy. No. 3002/1976
3. 8-4-1976
4. W.P. No. 2355/1976
5. Karnataka
6. D.J. Shivaram
7. Prayer of the detenu allow him to be
released on parole to enable him to take the
final LL.B. examination rejected in view of
the orders made by this Court i.e. the Su-
preme Court in High Court W.P. No. 1454/1976
Sr. No. 2.
2. Dy. No.3003/1976
3. 8-4-1976
4. W.P. No. 1968/1976
5. Karnataka
6. Hanumant Gururao Inamdar
7. Prayer of the detenu to allow him to be
released on parole to enable him to take the
Second Year LL.B. examination rejected in
view of the orders made by this Court on in
High Court W.P. No. 1454/1976.
SIXTH BATCH OF APPEALS
Sr. No.1
2. C.A. No. 349/1976
3. 18-7-1975
4. Crl. Application No.794/1975
5. Bombay
6. Ramlal Narang
7. Directions issued to the detaining
authority not to remove the detenu till
further order to another jail outside the
State without giving at least 3 hours notice
in writing (excluding Sunday and holidays
to the detenu attorneys.
Sr. No. 2.
2. C.A. No. 573/1976
3. 20-3-1976
4. Crl. Application No. 31/1976
5. Bombay
6. Prabhudas Tribhovandas
7. Directions issued to the detaining
authority to detain the detenu in such
prison where the detenu would have the bene-
fit of the Company of other women detenus as
also other facilities under the rules.
Clauses 9(iii), 10, 12(ii) & (xi), 19, 20, 21, 23, 24 &
31 of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities (Maharashtra Conditions of Detention)
Order, 1974 (hereinafter referred to as "the Maharashtra
Conditions of Detention Order, 1974") which have been struck
down by the High Court of Bombay read as under :---
"9. ... .... ..... ...... ........
730
(iii) Security prisoners shall not be
allowed to supplement their diet even at their
own expense. Any security prisoner who wishes
to supplement his diet on medical grounds. may
apply to the Commissioner or the Superintend-
ent, as the case may be. The Commissioner or
the Superintendent shah get him examined by a
Medical Officer attached to the place of
detention who may order such modification of,
or addition to, his diet, as he may consider
necessary on medical grounds.
10. Supply of funds :--(i) A security prison-
er may, with the previous sanction of the
detaining authority, receive from a specified
relative or friend at intervals of not less
than a month, funds not exceeding Rs. 30/-
per month and may spend these funds or a
similar sum from his own private funds on such
objects and in such manner as may be permissi-
ble under the rules, in case in which for want
of funds any security prisoners are compelled
to do without small amenities which their
fellow prisoners enjoy, such amenities may, if
considered absolutely necessary by the Commis-
sioner or the Superintendent be supplied to
them at Government
costs.
(ii) All funds so received shall be kept
by the Commissioner or the Superintendent and
spent by him on behalf of the security prison-
ers concerned.
(iii) Amounts in excess of those pre-
scribed in subclause (i) may be received by
the Commissioner or the Superintendent on
behalf of security prisoners, but they shall
not be spent in any month beyond the limits
laid down in the said sub-clause.
12. .. .. .. .. ..
(ii) The number of interviews which a
security prisoner may be permitted to have
shall not ordinarily exceed one per month.
(xi) In addition to the interviews permis-
sible under the preceding provisions of this
clause, a security prisoner may with the
permission of the detaining authority, be
granted not more than two special interviews,
for the settlement of his business or profes-
sional affairs, such interviews shall ordi-
narily take place within a period not exceed-
ing two months from the date of detention of
the security prisoner. concerned and shall be
conducted in accordance with the provisions of
this clause as regards place, duration and
conditions of the interview, and the proceed-
ings shall be strictly confined to the objects
for which the interview is granted.
19. Medical attendance :--(i) The Superin-
tendent of the Hospital or the Civil Surgeon,
as the case may be, shall depute a medical
officer to visit each security prisoner de-
tained
731
in a police lock-up and report of his physical
condition. The said Medical Officer shall
visit the prisoner at least once a week and
more often if the Superintendent of the Hospi-
tal or the Civil Surgeon or the Commissioner
as the ease may be thinks fit, and submit the
report on his condition to the Commissioner
or the detaining authority, after the first
day of each month and at any other time he
considers necessary.
(ii) Security prisoner detained in a jail
or sub-jail shall in the event of illness, be
treated in the same way as convicted criminal
prisoner or treated under the rules made under
the Prisons Act, 1894.
20. Toilet :--(i) Every security prisoner
shall be supplied with neam or babul stick at
Government expense.
(ii) Every security prisoner shall be
supplied with one cake of jail made toilet
soap per month for bathing at Government
expense. The weight of such cake shall be 113
grams approximately and if jail made soap is
not available in any medium quality, toilet
soap manufactured in India: and available
locally shall be supplied.
21. Service of barbers etc. :--(i) A securi-
ty prisoner shall not be permitted to have
shaving equipment of his own.
(ii) Every security prisoner shall be
allowed to have the services of the jail
barber once a week.
23. Smoking and tobacco:--Except cigarettes
or bidies and chewing tobacco, which are
available at the jail canteen, no other facil-
ities to smoke or chew tobacco shall be per-
mitted.
24. Games :--Security prisoners shall not
be pertained to play indoor games like cards
or to play chess, draughts and carrom.
31. Power to withhold any concessions or
facilities: The State Government may, by
general or special order, withhold any of the
concessions or facilities provided by or
under any of the provisions of this order in
respect of any security prisoner or class of
security prisoner, and for such period or
periods, as the State Government may, from
time to time specify.
Appearing on behalf of the Union of India and the
States of Maharashtra and Karnataka, the learned Additional
Solicitor General has, while very fairly stating that though
the appropriate Government may have no objection to the
issue of special orders permitting the detenus to receive
or purchase toilet requisites, toilet soap and to consult
private doctors in case of genuine necessity if an applica-
tion is made to it in that behalf, submitted that the right
of any person to
732
move any court for the enforcement of the rights conferred
by Article 21 (which is the sole repository of the right to
life and personal liberty) and Articles 14, 19 and 22 of
the Constitution having been suspended by virtue of the
Presidential Orders dated June 27, 1975 and January 8. 1976
issued under clause (1) of Article 359 of the Constitution
(which are absolute in terms) for the period during which ,
the proclamation of emergency made on June 25, 1975 under
clause (1) of Article 352 of the Constitution is in force,
no person has a locus standi to move any application under
Article 226 or Article 227 of the Constitution for issue of
a writ, order or direction to enforce any right to personal
liberty. He has further urged that since it is for the
appropriate Government to specify the place of a detenu’s
detention and to lay down by means of a general or special
order the conditions as to his maintenance, interviews or
communications with others with a view to prevent his con-
tact with the outside world and sincewhat was sought to be
enforced in the instant cases by means of the applications
filed by or on behalf of the detenus under Article 226 and
227 of the Constitution in the aforesaid High Courts was
nothing but various facts of personal liberty under Articles
19, 21 and 22 of the Constitution, the applications were not
maintainable and the High Courts were not competent to
deal with them and to either strike down the aforesaid
clauses of the Maharashtra Conditions of Detention Order,
1974 or to issue the aforesaid directions to the detain-
ing authorities.
Mr. Seervai Mr. Ashok Sen, Mr. Desai and Mr. Dattar,
learned counsel for the detenus have, on the other hand,
emphasized:
(1) that preventive detention does not stand
on the samefooting as punitive detention and
while it cannot be gainsaid that persons who
can be prosecuted and punished for offences
against the law can also be preventively
detained they cannot be punitively treated;
(2) that considerations relevant for applica-
tions seeking relief of release by habeas
corpus are not relevant to cases in, which
conditions of detention fall for considera-
tion;
(3) that the principle of legality and the
doctrine of ultra vires are not abrogated even
during the times of emergency and the exercise
of power under section 5 of the Act must
have a reasonable nexus with the purpose for
which the power is conferred;
(4) that if according to the majority judgment
in Additional District Magistrate, Jabalpur v.
Shiva Kant Shukla(1) even habeas corpus could
issue in cases where the order is not duly
authenticated then the conditions of detention
can certainly be scrutinized and relief can be
granted if those conditions are found to be
illegal or ultra vires;
(1) [1976] 2 S.C.C 521= A.I.R. 1976 S,C.
1207.=[1976] Supp. S,C.R. 172.
733
(5) that the aforesaid clauses of the Maha-
rashtra Conditions of Detention Order, 1974,
being ultra vires and violative of the princi-
ples of reasonableness and legality have
rightly have been struck down by the High
Court of Bombay:
(6) that a curtain cannot be drawn round the
detenu ,red while he can be cut off from
undesirable contacts, he cannot be cut off
from unobjectionable contacts;
(7) that if the place of detention mentioned
in a detention order is a prison, then the
detenu would be governed by the Prisons Act
but not if the detenu is lodged elsewhere;
(8) that the detenus’ grievances are not
’echoes’ of Article of the Constitution but
are the echoes of the ’totality’ law;
(9) that it is not right to say that what is
not contained in Article 19 of the Constitu-
tion is contained in Article 21 of the Consti-
tution as this submission ignores Articles 15,
25 and 26 of the Constitution which are ap-
plicable even to non-citizens.
The learned Additional Solicitor General has, in his
rejoinder, contended that while total release is of course
different from regulating conditions of detention, the
former not being available by virtue of the Presidential
Orders dated 27th June, 1975 and January 8, 1976 issued
under Article 359 (1) of the Constitution which are uncondi-
tional even conditions of detention cannot be enforced by
moving a court during the period of emergency and that the
contention based upon the principles of legality and reason-
ables and doctrine of ultra vires is misconceived. The
Additional Solicitor General has further submitted that
legality has to be understood as meaning the authority of
law and it so understood, a person detained in accordance
with the conditions framed under section 5 of the Act cannot
complain that the conditions are illegal or ultra vires,
broader challenges based on fundamental rights not being
available; that the principle of reasonableness and the
doctrine of ultra vires have no bearing on subordinate
legislation framed under emergency laws; that the court
cannot grant relief on vague and indeterminate philosophical
theories like the totality of law; that as the line of
demarcation between preventive and punitive detention which
is easily perceivable at the stage of detention becomes
progressively elusive and hazy when one comes to conditions
of detention. there is little scope for generalisation; that
curtain has to be drawn round a detenu to ensure effective-
ness of detention which cannot be sacrificed in the interest
of security of the State; that the observations made by the
majority in Shivakant Shukla’s case (supra) regarding the
area of judicial interference which are sought to be relied
upon on behalf of the detenus relate to the obvious eases
where the Executive itself could not and would not seek to
defend a detention order and can be of no assistance in the
present cases where the detenus seek to
734
enforce a right to do something or to get something which is
not con t:erred on and given to them by law; that any right
to personal liberty or any facet or aspect thereof has to be
found in some constitutional provision to be enforced in
normal times and ex-hypothesi to become unenforceable during
an emergency and reference to Articles 15, 25 and 26 of the
Constitution completely ignores the fact that these rights
postulate a free citizen and cannot be enforced independent-
ly of Article 21 or Article 19 of the Constitution and in
any case, the rights claimed in the present cases have no
relation to those Articles.
Without prejudice to the aforementioned contentions
advanced by him the learned Additional Solicitor General has
further submitted that it is only where there are specific
provisions in the rules framed trader section 5 of the’ Act
that those provisions being conditions of detention can be
enforced when still available to an individual detenu that
the provisions of Maharashtra Conditions of Detention
Order, 1974 have to be examined and scrutinized to see if
the facilities claimed by the detenus are excluded by impli-
cation, e.g. where a provision for a particular number of
interviews is made, it necessarily implies a prohibition
against having more interviews; that the question whether a
particular act which is not specifically prohibited should
be permitted or not has to be decided by keeping in view the
effectiveness of detention; that allowing a detenu to go and
vote at a corporate election or to take part in legislative
proceedings is destructive of the purpose of detention and
in any event approach must be made to the Executive to
exercise its rights of parole or relaxation which is implic-
it in sections 12 and 5 of the Act as for instance if the
release is necessitated by exigencies like performance of
obsequieal ceremonies or sharadh of a kith and kin, but an
order directing the detenu to be taken under police guard to
the place where obsequies of a dead relation are to be
performed cannot be made by a court as it tantamounts to
onforcing his personal liberty; that while Iramane consider-
ations are generally borne in mind by the authorities having
the custody of the detenus and appropriate Government, they
cannot furnish reliable basis for judicial relief; that the
aforesaid directions of the Bombay High Court equating
detenus with ’civil prisoners’ amenable to the Prisons Act,
1894, does not only amount to a substitution or re-enactment
of section 5 of the Act i.e. of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974
but is also opposed to the definition of the ’prisoner’ as
contained in the Bombay Jail Manual which has not been
amended so as to include persons directed to be detained
under any Central or other Act providing for detention; that
the mere fact that a person is detained for purposes of
administrative convenience in a jail does not mean that he
is a civil prisoner or that the Prisons Act applies to him;
and that the necessity of having provisions in the condi-
tions of detention orders enabling a detenu to consult pri-
vate doctors in the presence of the official doctors in case
of genuine necessity or to supplement his diet on medical
grounds or to indulge in harmless pastimes like chess or
carrom or to appear in examinations are matters for which
the appropriate Government should be approached.
735
We have given our anxious consideration to the submis-
sion made by counsel for the parties. In our judgment, the
vital question of fundamental importance that requires to
be determined at the threshold in the instant cases is
whether in view of the orders dated June 27, 1975 and Janu-
ary 8, 1976 issued by the President under clause (1) Article
359 of the Constitution, the aforesaid petitions under
Articles 226 and 227 of the Constitution were maintainable.
For a proper determination of the question, it is
necessary to advert to the provisions of Articles 352, 353,
358 and 359 contained in Part XVIII of the Constitution
called the Emergency Provisions, as well as to the Presiden-
tial Orders dated November 3, 1962, December 3, 1971, Novem-
ber 16, 1974, June 25, 1975, June 27, 1975 and January 8,
1976. The aforesaid Articles of the Constitution are in
these terms :--
"Article 352. (1) If the President is
satisfied that a grave emergency exists where-
by the security of India or of any part of the
territory thereof is threatened, whether by
war or external aggression or internal dis-
turbance, he may, by Proclamation make
a declaration to that effect.
(2) A Proclamation issued under clause (1)--
(a) may be revoked by subsequent Proclamation;
(b) shall be laid before each House of Parlia-
ment;
(c) shall cease to operate at the expiration
of two months unless before the expiration of
that period it has been approved by resolu-
tions of both Houses of Parliament;
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 Procla-
mation 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 oper-
ate at the expiration of thirty days from the
date on which the House of the People first
sits after its reconstruction unless before
the expiration of the said period of thirty
days a resolution approving the Proclamation
has been also passed by the House of 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 disturb-
ance may be made before the actual occurrence
of war or of any such aggression or disturb-
ance if the President is satisfied that there
is imminent danger thereof.
736
** (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 Constitu-
tion,
(a) the satisfaction of the President men-
tioned in clause (1) and clause (3) shall be
final and conclusive and shall not be ques-
tioned 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 validi-
ty of--
(i) a declaration made by Proclamation by
the President to the effect stated in clause
(1); or
(ii) the continued operation of such Proclama-
tion."
"Article 353. While a Proclamation of Emer-
gency is in operation then-
(a) notwithstanding anything in this Con-
stitution, 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 there-
of 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."
"Article 358. While a Proclamation of Emer-
gency 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 incompeten-
cy, cease to have effect as soon as the Proc-
lamation ceases to operate, except as respects
things done or omitted to be done before the
law so ceases to have effect."
** Inserted retrospectively by section 5 of the Constitution
(Thirty-eighth Amendment) Act, 1975.
737
"Article 359. (1) Where a Proclamation of
Emergency is in operation, the President may
by order declare that the fight to move any
court for the enforcement of such of the
rights conferred by Part III as may be men-
tioned 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 us defined in the said
Part to make any law or to take any execu-
tive 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 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."
It is hardly necessary to emphasize that the provisions
of the Articles reproduced above arc designed to arm the
State with special powers to meet extraordinary situations
created in times of grave national emergencies due to war,
external aggression and internal disturbance when the secu-
rity of the State nay the very existence of the nation is
threatened necessitating the subordination of individual
rights to the paramount consideration of the welfare of the
State, and to give effect to the well recognized principle
to which particular attention was called by E.C.S. Wade and
Godfrey Phillips by inserting the following passage in their
Constitutional Law, 8th Edition, Chapter 48, pp. 717, 718:--
"It has always been recognized that times
of grave national emergency demand the grant
of special powers to the Executive. At such
times arbitrary arrest and imprisonment may be
legalised by Act of Parliament."
It is, however, necessary to state that there is an
appreciable difference between Articles 358 and 359(1) of
the Constitution. Whereas simultaneously with the declara-
tion of emergency under Article 352, Article 358 by its
own force removes the restrictions on the power of the
Legislature to make laws inconsistent with Article 19 of the
Constitution as also on the power of the Executive to
take
** Inserted retrospectively by section 7 of the Constitu-
tion (Thirty-eighth Amendment) Act, 1975.
738
actions which may be repugnant to Article 19 of the Consti-
tution so long as the proclamation of emergency continues to
operate but does not suspend any fundamental right which was
available to a citizen under Article 19 of the Constitution
prior to the promulgation of emergency, Article 359(1)
empowers the President to suspend the right of an individual
to move any court for enforcement of such of the rights
conferred by Part III of the Constitution as may be speci-
fied by him (the President) in his order. In other words,
while Article 358 proporio vigore suspends the fundamental
rights guaranteed by Article 19 of the Constitution thus
enabling the State during the period the proclamation of
emergency is in operation to make laws in violation of
Article 19 of the Constitution and to take Executive
action under those laws despite the fact that those laws
constitute an infringement of the rights conferred by Arti-
cle 19, Article 359(1) of the Constitution does not sus-
pend any fundamental right of its own force but authorises
the President to deprive an individual of his right to
approach any Court for enforcement of any or all of the
rights conferred by Part III of the Constitution. In Mohd.
Yaqub etc. v. The State of Jammu & Kashmir(1), a Constitu-
tion Bench of this Court consisting of seven Judges inter
alia pointed out that there is a distinction between Arti-
cles 358 and 359(1) of the Constitution. Whereas Article
358 by its own force suspends the fundamental rights guaran-
teed by Article 19, Article 359(1) of the Constitution has
the effect of suspending the enforcement of specified funda-
mental rights so. that these concept cannot be used to test
the legality of an Executive action.
Reference in this connection may also usefully be made
to a passage in Shivakant Shukla’s case (supra) where my.
Lord the Chief Justice who headed the majority opinion
while pointing out the difference between Articles 358 and
359 of the Constitution observed :--
"The vital distinction between Article 358
and Article 359 is that Art. 358 suspends the
rights only under Article 19 to the extent
that the legislature can make laws contraven-
ing 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 fight. 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 sus-
pends any pending proceedings for the enforce-
ment 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 Arti-
cle 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. (1)
[1968] 2 S.C.R. 227.
739
A person can enforce a fundamental right
both in the case of law being made in viola-
tion 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 enforce-
ment 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 suspend-
ing 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."
Thus the foregoing discussion makes two things perfectly
clear(1) that Article 359(1) (which makes no distinction
between the threat to the security of India by war or
external aggression or internal disturbance) is wider in
scope than Article 358 and (2) that it is not open to any
one either to challenge the validity of any law or any
Executive action on the ground of violation of a fundamen-
tal right specified in the Presidential Order promulgated
under Article 359(1). of the Constitution. It would be
apposite at this stage to mention that in England in Liver-
sidge v. Anderson(1) and Greene v. Secretary of State for
Home Affairs(2) and in India in Sree Mohan Chowdhury v. The
Chief Commissioner, Union Territory of Tripura(3) and
Makhan Singh v. State of Punjab(4) the right of any person
to challenge any executive action taken during emergency
on the ground that it was arbitrary or unlawful has been
negatived. In the Liversidge’s case (supra) the following
memorable observations made by the House of Lords in the
King v. Halliday, Ex parte zadig(5) were referred to and
relied upon :-
"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 forfeit-
ed or abridged."
Having noticed the amplitude of the provisions incorpo-
rated in our Constitution by its rounding fathers in rela-
tion to the threat posed by three types of grave emergencies
on the basis of the experience gained . in England and
United States of America and their effect, let us now turn
to the various Presidential Orders and notice their effect.
(1) [1942] A.C. 206.
(2) [1942] A.C. 284.
(3) [1964] 3 S.C.R. 442 = A.I.R. 1964 S.C. 173.
(4) [1964] 4 S.C.R. 797 = A.I.R. 1964 S.C. 381.
(5) [1917] A.C. 260.
13--112 SCI/77.
740
Presidential Order dated November 3, 1962 issued under
clause (1) of Article 359 of the Constitution after the
proclamation of emergency made on October 26, 1962 under
clause (1) of Article 352 of the Constitution consequent on
the invasion of India by China on September 8, 1962 ran
as follows :--
"New Delhi, the 3rd November, 1962
G.S.R. 1464--In exercise of the powers Con-
ferred by clause (1) of Article 359 of the
Constitution, the President hereby declares
that the right of any person to move any court
for the enforcement of the rights conferred by
Article 21 and Article 22 of the Constitution
shall remain suspended for the period during
which the Proclamation of Emergency issued
under clause (1) of Article 352 thereof on the
26th October, 1962 is in force, if such person
has been deprived of any such rights under
the Defence of India Ordinance, 1962 (4 of
1962) or any rule or order made thereunder."
Be it noted that addition of Article 14 was made in the
above Presidential Order of November 3, 1962 by the Presi-
dential Order dated November 11, 1962 and the aforesaid
emergency declared on October 26, 1962 was revoked vide
Presidential Order dated January 10, 1968 issued under
Article 352(2)(a) of the Constitution.
Proclamation of emergency issued by the President of
India under Article 352(1) of the Constitution on December
3, 1971, consequent upon the Pakistani aggression reads as
under :--
"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."
Presidential Order dated November 16, 1974
issued under clause (1) of Article 359 of the
Constitution is in these terms :--
"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 court 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 II 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 to orders of detention
made under the said section 3(1)(e) shall
remain suspended for a period of six months
from the
741
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 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.
Proclamation of Emergency issued by the
President of India on June 25, 1975 is to the
following effect :--
"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 emer-
gency exists whereby the security of India is
threatended by internal disturbances.
New Delhi Sd/F.A. Ahmed
the 25th June, 1975 President."
Presidential Order dated June 27, 1975
promulgated under clause (1) of Article 359 of
the Constitution runs thus :--
"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 (including a foreigner) to move any
court for the enforcement of the rights con-
ferred 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 sus-
pended for the period during which the Procla-
mations 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 and
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.
On January 8, 1976, the President issued yet another
order under Article 359(1) of the Constitution declaring
that the right to move
742
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 of the proclamations of emergency dated Decem-
ber 3, 1971 and June 25, 1975.
The difference between the Presidential Order dated June
27, 1975 which was supplemented by the Presidential Order
dated January 8, 1976 and the earlier Presidential Orders
barring the right of a person to move any court for enforce-
ment of certain fundamental rights conferred by Part III of
the Constitution may now be noticed. While the Presidential
Order dated June 27, 1975, which, as already stated, was
supplemented by the Presidential Order dated January 8, 1976
was absolute and unconditional in terms, the earlier Presi-
dential Orders alluded to above were conditional and limited
in scope. Apart from the fact that the Presidential Order
dated November 3, 1962 did not make any mention of the
pending proceedings, it was, as pointed out by this Court in
State of Maharashtra v. Prabhakar Pandurang Sanzgiri(1) Dr.
Ram Manohar Lohia v. State of Bihar(2) Makhan Singh v. State
of Punjab (supra) and by the majority in .A.D.M. Jabalpur v.
Shivakant Shukla (supra), hedged by a condition inasmuch as
it declared that the right of any person to move any court
for the enforcement of rights conferred by Articles 21 and
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 October 26, 1962 is in
force if such a person has been deprived of any such rights
under the Defence of India Ordinance, 1962 (4 of 1962)
(which was later on replaced by the Defence of India Act,
1962) or any rule or order made thereunder." Accordingly,
if a person was deprived of his personal liberty not under
the Defence of India Act or any rule or order made there-
under but in contravention thereof, his locus standi to move
any court for the enforcement of his rights conferred by
Articles 21 and 22 of the Constitution was not barred.
More or less, similar was the pattern and effect of the
Presidential Order dated November 16, 1974. The position
with respect to the Presidential Orders dated June 27, 1975
and January 8, 1976 is, however, quite different. These
orders are not circumscribed by any limitation and their
applicability is not made dependent upon the fulfilment of
any condition ’precedent. They impose a total or blanket
ban on the enforcement inter alia of the fundamental
rights conferred by Articles 19, 21 and 22 of the Constitu-
tion which comprise all varieties or aspects of freedom
of person compendiously described as personal liberty.
(See/1. K. Gopalan v. The State of Madras(1), Kharak Singh
v. State of U.P.(2) and A.D.M. Jabalpur v. Shivakant
Shukla (supra). Thus there is no room for doubt that the
Presidential Orders dated June 27, 1975, and January 8,
1976, unconditionally suspend the enforceability of the
right conferred upon any person including a foreigner to
move any court for the enforcement of the rights enshrined
in Articles 14, 19, 21 and 22 of the Constitution.
(1) [1966] 1 S.C.R. 702 = A.I.R. 1966 S.C. 1924.
(2) [1966]1 S.C.R. 709 = A.I.R. 1966 S.C. 540.
(3) [1950] S.C.R. 88 = A.I.R. 1950 S.C. 27.
(4) [1964] 1 S.C.R, 332 = A.I.R. 1963 S.C. 1295.
743
The main contention advanced on behalf of the detenus
that the Presidential Orders dated June 27, 1975 and January
18, 1976 do not bar the Court from examining the legality or
vires or reasonableness of the Maharashtra Conditions of
Detention Order, 1974 and that what is sought by means of
the aforesaid petitions filed by or on their behalf is not
the enforcement of the right to personal liberty conferred
by Articles 14, 19, 21 and 22 of the Constitution but a
redress of the complaint against illegality or ultra
vires or unreasonableness of the Maharashtra Conditions of
Detention Order, 1974 which imposes unwarranted constraints
on them and does not provide them with facilities to which
even the ordinary prisoners are entitled is totally mis-
conceived. It overlooks the well recognized canon of
construction that the doctrines of legality and vires which
are sacrosanct in times of peace have no relevance in regard
to a legislative or an executive measure taken in times of
emergency in the interest of the security of the State. It
also ignores the well settled position that in times of,
emergency when the security of the State is of utmost
importance, the subordinate legislation has to be benevo-
lently construed and the strict yardstick of reasonableness
cannot be appropriately applied. It also ignores the stark
reality that the Presidential Orders dated June 27, 1975 and
January 8, 1976 impose blanket bans on any and every judi-
cial enquiry or investigation into the validity of an order
depriving a person of his personal liberty no matter whether
it stems from the initial order directing his detention or
from an order laying down the conditions of his detention.
It has to be borne in mind that the rule of law during the
emergency is no other than what is contained in Chapter
XVIII of the Constitution which is the positive and tran-
scendental law. The following observations made by my Lord
the Chief Justice in this connection in A.D.M. Jabalpur V.
Shivakant Shukla’s case (supra) are worth perusing :--
"The Constitution is the mandate. The
Constitution is the rule of law ....... The
rule of law is not a mere catchword or incan-
tation. The rule of law is not a law of
nature consistent and invariable at all times
and in all circumstances. ...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 constitu-
tional 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."
Again as observed by my learned brother Beg, J. in A.D.
M. Jabalpur v. Shivakant Shukla’s case (supra) "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
744
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 sus-
pended and then to enforce the substitutes. Even in emer-
gencies, the power of the courts to test the legality of
some executive act is not curtailed during the period the
proclamation of emergency is in operation. Courts will
apply the test of legality ’if the person aggrieved brings
the action 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 execu-
tive action of their relationship with the power to act, it
is no use appealing to this Particular concept of the Rule
of Law. It is just inapplicable to the situation which
arises here. Such a situation is governed by the Emergency
provisions of the Constitution. There provisions contain
the Rule of Law for such situations in our
country .........
If the meaning of the emergency provisions in our Con-
stitution and the provisions of the Act is clearly that what
lies in the executive fled, 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."
The observations made by my learned brother Chandrachud,
in A.D.M. Jabalpur v. Shivakant Shukla’s case (supra) are
also apposite and may be conveniently referred to at this
stage :--
"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 emergen-
cy provisions of the Constitution."
The following observations made by my
learned brother Bhagwati, J. in A.D.M. Jabal-
pur v. Shivakant Shukla’s case (supra) will
also repay perusal :--
"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
shah not be entitled to enforce his right of
personal liberty, whilst a Presidential Order
under Article 359, clause (1) specifying
Article 21 is in force, the Court has to give
effect to it as the plain and emphatic command
of the Constitution."
745
The observations made by this Court in Dhirubha
Devisingh Gohil v. State of Bombay(1) and reiterated in
A.D.M. Jabalpur v. Shivakant Shukla (supra) 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 cannot also be ignored.
The conclusion, therefore, seems to us to be irresisti-
ble that as Articles 19, 21 and 22 of the Constitution
which, according to the decisions of this Court in 4. K.
Gopalan v. State of Madras (supra), Kharak Singh v. State of
U.P. (supra) and A.D.M. Jabalpur v. Shivakant
Shukla .(supra) cover and form the source of all the varie-
ties or aspects of the rights that go to constitute what is
compendiously described as personal liberty are suspended
during the operation of the proclamation of emergency and
the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act and the orders made or passed
thereunder are not open to challenge on the ground of their
being inconsistent with or repugnant to Articles 14, 19, 21
and 22 of the Constitution in view of the aforesaid Presi-
dential Orders dated June 27, 1975 and January 8, 1976 which
totally take away the locus standi of the detenus to move
any court for the enforcement of the aforesaid fundamental
rights and the petitions out of which the present appeals
have arisen did not seek to enforce the orders laying down
the conditions of detention but on the contrary challenged
them and covertly sought to enforce the very rights which
are suspended, they were clearly untenable and it was not
open to the High Court of Bombay to strike down the afore-
said clauses of the Maharashtra Conditions of Detention
Order, 1974 ignoring the weighty observations made by this
Court in the State of Bombay v. Virkumar Gulabchand Shah(2)
to the effect that measures which often have to be enacted
hastily to meet a grave pressing national emergency in which
the very existence of the State is at stake should be con-
strued more liberally in favour of the State than peace-time
legislation.
Now if no person has a locus standi to move any court
to challenge the conditions of detention embodied in the
Maharashtra Conditions of Detention Order, 1974, or other
such orders or rules, the position whereof is the same as
that of the .Punjab Communist Detenus Rules, 1950, which, as
held by a Constitution Bench of this Court in Maqbool Hus-
sain v. The State of Bombay(3) constitute a body of. self’-
contained rules prescribing the conditions of the detenus’
maintenance, discipline etc., we cannot understand how the
High Courts of BOmbay and Karnataka could issue the afore-
said directions ’disregarding the provisions of the Act
particularly sections 5 and 12(6) thereof which are mandato-
ry in character and the aforesaid orders which in any case
appear to have been issued in the interest of the effective
detention of the detenus.
(1) [1955] 1 S.C.R. 691 = A.I.R. 1955 S.C. 47.
(2) [1952] S.C.R. 877 at 884
(3) [1953] S.C.R. 730
746
The avowed object of the Act as manifest from its
preamble being the conservation and augmentation of foreign
exchange and the prevention of smuggling activities of
considerable magnitude secretly organised and carried on
which have a baneful effect on the national economy and
gravely undermine the security of the State, it is essential
that the contact of the detenus with the outside world
should be reduced to the minimum. It is, therefore, for
the State Governments who are in full possession of all
material facts including the peculiar problems posed by
foreign exchange and smuggling and not for the Courts who
have neither the necessary knowledge of the facts nor the
legal competence to regulate conditions of detention of
persons including their maintenance, interviews or communi-
cations with others.
The High Court also seem to have ignored the observa-
tions made by this Court in State of Maharashtra v. Prabha-
kar Pandurang Sanzgiri & Anr. (supra) and in A.D.M. Jabalpur
v. Shivakant shukla (supra) to the effect that when a
person is detained, he loses his freedom. He is no longer
a free man and, therefore, he can exercise, only such privi-
leges as are conferred on him by the order of detention or
by the rules governing his detention.
We would also like to reiterate here the observations made
by a Constitution Bench of this Court in Maqbool Hussain v.
The State Bombay (Supra) that the mere fact that a detenu is
confined in a prison for the sake of administrative conven-
ience does not entitled him to be treated as a civil prison-
er or to be governed by the provisions of the Prisons Act.
The view of the High Court of Bombay to the contrary cannot,
therefore, be sustained.
It has also been contended by Mr. Seervai that in asking
for their temporary removal from their places of detention
to their homes to perform funeral ceremonies or to appear at
any examination or to be taken to a doctor of their choice
for social medical attention, the detenus are not enforcing
their rights to freedom. The contention is not sound.
Any relief that may be asked for through the aid of court
for giving facilities to a detenu to be taken from his place
of detention to his home or to an examination hall or for
special medical treatment under a doctor of his choice or
for any other facility would be enforcing fundamental rights
through the aid of Court. The Presidential Proclamation
is a complete answer against the enforcement of such reliefs
through the aid of Court.
The detenus may approach the competent administrative
authorities for special medical attention or for facilities
for performance of funeral ceremonies of their kith and kin
or for facilities to appear at the examination or any other
facility of similar nature. It is open to the administra-
tive authorities to take such action as they may be advised
under the relevant provisions of the Act. But if the
authorities do not give any relief it was said by counsel
for the detenus then the detenus could come to the court.
This contention is also unsound and unacceptable because
that would also be enforcing fundamental rights through the
aid and process of court which is not permissible so long as
the aforesaid Proclamation is in force.
747
We are therefore clearly of opinion that the aforesaid
writ petitions were not maintainable and the High
Court of Bombay and Karnataka were clearly in error in
passing the impugned directions which are not warranted by
any relevant law including the law relating to preventive
detention of the kind with which we are concerned in the
present cases. The detenus or their relations may if so
advised, approach the appropriate Governments. or other
competent administrative authorities invoking their powers
under section 5 read with section 12 of the Act or other
relevant provisions thereof.
In the result, appeals diarised as Nos. 3002 and 3003 of
1976 fail and are hereby dismissed while the rest of the
appeals are allowed and the orders and directions forming
the subject-matter thereof are quashed. The special leave
petitions are disposed of as infructuous as in view of our
Judgment High Court Orders cannot stand.
Since during the course of arguments, it was pointed out
to us that the conditions of detention laid down by some
State Government differ in certain particulars, we may, in
conclusion, observe that the appropriate Governments would
do well to take necessary steps to bring about uniformity
therein. To eliminate the chances of hardship, the appro-
priate Governments may as well issue standing orders to meet
special contingencies which necessitate expert medical aid
being provided to the detenus for the maintenance of their
health or their being removed temporarily from their places
of detention on humanitarian grounds to enable them to
perform the obsequies of their kith and kin or for appearing
in some examination without detriment to the security of the
State. No order as to costs.
BEG, J. The circumstances in which the appeals now
before us by special leave arose have been dealt with in
extenso by my learned brother Jaswant Singh with whose
judgment and proposed orders I entirely concur. I would,
however, like to add some reasons of my own also to indicate
why submissions made on behalf of the respondents, on the
strength of certain observations found in the judgments,
including mine, in Additional District Magistrate, Jabalpur
v. Shivakant Shukla(1), decided by a Constitution Bench of
this Court, cannot be accepted by us. I will also express
my opinion, very briefly and broadly on some other conten-
tions advanced by learned counsel for the respondents as
issues relating to personal liberty, which have been matters
of very special and anxious concern to this Court, arise
here.
I think this Court has made it amply clear in Shukla’s
case (supra) that the Constitution embodies, for all Courts
in this country, the highest norms of law. It is the
touch-stone by which the validity of all action, whether
executive, legislative, or judicial is to be judged. That is
why, this Court has, on several occasions, spoken of "the
supremacy of the Constitution" explained by me in Shukla’s
case (supra) also as follows:
(1) A.I.R. 1976 S.C. 1207, 1283=[1976] Supp. S.C.R. 172.
748
"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 provi-
sions of Articles 21 and 22, which deal
with personal liberty and preventive deten-
tion. The ’wider the sweep of the provisions
of Articles 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".
It seems to me that the majority view in Shukla’s Case
(supra) was that there is no pre-existing natural or funda-
mental or common law which, in so far as the rights covered
by Part III of our Constitution, together with implications
of such rights, are involved, is not embodied in the Consti-
tution itself. Furthermore, this Court held there, after
considering all the relevant case law on the subject, from
the case of 4. K. Gopalan v. State of Madras(1), through
Kharak Singh v. State of U.P.(2), I. C. Golaknath v. State
of Punjab(3), His Holiness Kesavananda Bharati Sripadagala-
varu v. State of Kerala(4), to Haradhan Saha v. The State 0f
West Bengal & Ors. (5), that the sweep of Articles 19 and
21 is wide enough to include every aspect of personal free-
dom. This Court recalled that, in Kharak Singh’s case, a
Constitution Bench of this Court had held that the concept
of personal liberty, embodied in Article 21, is a compendi-
ous 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 free-
dom of person". "It was held to include freedom from
surveillance, from physical torture, and from all kinds of
harassment of the person which may .interfere with his
liberty".
I summarised my conclusions on this sub-
ject in Shukla’s case (supra) as follows:
"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
(1) [1950] S.C.R. 88.
(2) [1964] (1) S.C.R. 332.
(3) [1967] (2) S.C.R. 762.
(4) [1973] Supp. S.C.R. I
(5) [1975] (1) S.C.R. 778=A.I.R. 1974 S.C.
2154.
749
other co-extensive rights, outside the Con-
stitution, 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 necessari-
ly means that these safeguards can also, be
legally removed under appropriate constitu-
tional 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, practi-
cally 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, substan-
tially, an elaboration Of what is found in
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 unjusti-
fiable 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 enforceabil-
ity 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".
I may mention, at the risk of repetition, that I had
explained in Shukla’s case (supra) that it is not the funda-
mental rights which are suspended by the Presidential Order
under Article 359 of the Constitution but "the right to move
any Court for the enforcement of such right by Part III as
may be mentioned in the order" which is suspended for the
duration of the Emergency. Speaking for myself, I was of
opinion that what is very obviously and clearly affected is
the enforceability of fundamental rights during such an
Emergency. This means that it is really the jurisdiction of
Courts, to the extent to which a petitioner seeks to
enforce a fundamental right mentioned
750
in the Presidential Order, which is suspended or is in
abeyance. I said there (at p. 1302) (paragraph 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".
It is these processes of law, whether statutory or outside.
any statute (even assuming, for the sake of argument, that
there could be any such non-statutory rights) which Arti-
cle 21 expressly protects. Therefore, I am totally unable
to understand how, without ignoring what our Constitution
enjoins, a Court could do what is Constitutionally prohib-
ited--i.e. to enforce a statutory or non-statutory supposed
protection. .
Shukla’s case (supra) and other connected cases related
to the enforcement of the right to personal liberty by
obtaining an order of release of detenus after issuing writs
of Habeas Corpus. Article 223 of the Constitution, no
doubt, gives power not only to issue specified writs but
enables High Courts to issue orders and directions for "any
other purpose". It seems to me that this "other purpose"
has to be similar to those for which one of the specified
writs could issue except to the extent that each specified
writ may have special features or incidents attached to it.
Now, the writ of Habeas Corpus, as is well known, is wider
in scope than enforcement of fundamental rights which are
available against the State only and its officers and
agents. Therefore, I had said in Shukla’s case (p. 1300):
"The remedy by way of a writ habeas corpus
is more general. It lies even against illegal
detentions by private persons although not
under Article 32 which is confined to en-
forcement of fundamental rights [vide:
Smt. Viday Verma v. Dr. Shiv Narain Verma,
(1955)C2 SCR 983=AIR 1956 SC 108]. The
Attorney General also concedes that judicial
proceedings for trial of accused persons would
fail outside the interdict of the Presidential
Order under Article 359(1). Therefore, it is
unnecessary to consider hypothetical cases of
illegal convictions where remedies under the
ordinary law are not suspended".
As already indicated above, fundamental rights are
conferred and guaranteed by the Constitution so that citi-
zens, and, in the cases of Articles 14 and 21, even non-
citizens, may get relief against the State and its agencies.
The suspension of enforcement of fundamental rights, which
are rights enforceable against the State only, does not, as
I pointed out, in Shukla’s case, debar enforcement of some
right to personal freedom against a private individual by
means of a writ of habeas corpus directed to him to produce
a person illegally detained. But, so far as mere direc-
tions or orders for "any other purpose" are concerned, the
jurisdiction of High Courts does not
751
extend to making orders against private individuals. There-
fore, the distinction which 1 drew in Shukla’s case (supra),
between a detention by an officer of the State, vasted with
the power to detain and purporting to act under some law
which authorises him to pass a detention order, and a
detention by a private individual, has no real bearing on
the cases now before us.
I had certainly expressed the view in Shukla’s case that,
if a detention by a person or authority is not in exercise
or purported exercise of a power to detain, which is not
vested in all officers of State, under statutes providing
for it, the action of an officer of the State, on the facts
of a particular case, may be, prima facie. indistinguisha-
ble from a detention by a private person and may not be
protected at all by the Presidential Order which only
covers purported actions of the State and its Officers
empowered to detain. That was, as I pointed out there, was
a purely hypothetical situation not presented in any of the
cases before us on that occasion. If the officer concerned
is duly empowered and has passed a detention order, that
order is certainly not capable of being questioned, under
Article 226, either on the ground of alleged ultra vires or
mala fides. All inquiry into the conditions of exercise of
such power is barred under Constitutional provisions during
the emergency. That was the very clearly expressed majori-
ty view in Shukla’s case (supra).
In all the cases now before us, the application consid-
ered by the High Court was for grant of a direction or order
against the State or its Officers, acting in the performance
of their purported duties. The remedy sought against them
was clearly covered by the Presidential inhibition which
operates, under the Constitution, which is supreme, against
the High Courts. Hence, whatever may be the grievances of
the detenus, with regard to the place of their confinement,
the supply of information to them, their desire to get
treatment by their own private doctors or to obtain some
special or additional food required by them from their own
homes, or to leave the place of their confinement temporari-
ly to go to some other place to perform some religious
ceremony or other obligation, for which they had erroneous-
ly sought permission and directions of the Court subject to
any conditions, such as that the detenus could be accompa-
nied by the police or remain in the custody of the police
during the period, are not matter which the High Court had
any jurisdiction to consider at all. It was, therefore,
quite futile to invite our attention to the allegations of
petitioners about supposed conditions of their detention.
Indeed, on the face of it, the nature of the claims made
was such that they are essentially matters fit to be left to
the discretion and good sense of the State authorities and
officers. It is not possible to believe, on bare allega-
tions of the kind we have before us, that the State authori-
ties or officers will be vindictive or malicious or unrea-
sonable in attending to the essential needs of detenus.’
These are not matters which the High Court could consider,
in petitions under Article 226 of the Constitution, whatever
be the allegations made on behalf of detenus so as to
induce the High Court to interfere. The High Courts can
only do so under Article 226 of the
752
Constitution if they have authority or power to do it under
the Constitution. Devoid of that power, the directions,
which may be given by a High Court after such enquiries as
it makes, would be useless as they will not be capable of
enforcement at all during the Emergency under the law as we
find it in our Constitution.
It will be noticed that, in most of the cases before,
us, the demands made by the detenus have become infructous
either because they have been promptly met by the State
concerned under orders of a High Court, without any attempt
by the State to do anything more than to question the juris-
diction, quite properly, of the High Court to give such
directions, or because the time to which it related has
expired so that there has remained nothing more than a
question of law or principle for us to be called upon to
determine.
I cannot help observing, having regard to some of the
allegations made, that they could not be at all easily
accepted by any reasonable person and may have been proved
to be totally unfounded if they had been actually investi-
gated and tried. If the State Governments promptly met, as
they seem to have done, all reasonable requests, either
before or after the orders of the High Court, without
questioning anything other than the power of the High Court
to give the directions given it could not be readily in-
ferred that all the allegations are either correct or that
the Governments concerned are taking any unreasonable
stands. Indeed, we have been requested by the Solicitor
General to indicate the lines on which requests by detenus,
of the kind we now find in the cases before us should be
dealt with. These are matters entirely outside the scope of
our judicial functions. We cannot suggest what a comprehen-
sive set of rules on such subjects should be. All that we
need say on such a subject is that the attitude on behalf of
the State has been very reasonable and proper in this Court.
And, we have no doubt that any attempt to formulate uniform
rules on such matters by authorities concerned and empow-
ered to do so will also disclose the same reasonableness.
Speaking for myself, I am inclined to suspect that a number
of allegations made on behalf of the detenus have the
oblique motive of partisan villification or political propa-
ganda for which Courts are not proper places. I would not
like to make any further comments on this aspect.
I would next like to make a few observations about the
contention most vehemently pressed for acceptance by us by
Mr. Seervai appearing on behalf of the respondents. It was
that we should adjudicate upon the validity of the rules
regulating conditions of detention which are being applied
to the detenus. The rules and the enactments under which
they have been made have been considered in the judgment of
my learned brother Jaswant Singh. I do not propose to.
cover the same ground afresh. I .am in complete agreement
with all that my learned brother has said. I would, howev-
er, like to add some observations on the main ground upon
which the validity of the rules is assailed. It was urged
before us that rules regulating conditions of their deten-
tion cannot be either so made or
753
administered as to amount to punitive detention of the
detenus. Reliance was placed on Haradhan Saha’s case
(supra), where a Constitution Bench of this Court said (at
p. 2100):
"The power of preventive detention is
qualitatively different from punitive deten-
tion. The power of preventive detention is a
precautionary power exercised in reasonable
anticipation. It may or may not relate to an
offence. It is not a parallel proceeding. It
does not overlap with prosecution even if it
relies on certain facts for which prosecution
may be launched or may have been launched. An
order of preventive detention may be made with
or without prosecution and in anticipation or
after discharge or even acquittal. The
pendency of prosecution is no bar to an order
of preventive detention. An order of preven-
tive detention is also not a bar to prosecution".
In Haradhan Saha’s case, this Court was concerned with
indicating how preventive detention and punitive detention
belong to two very different and distinct categories or
could be separately classified from the point of view of
Art. 14 of the Constitution. Their objects and social
purposes may be very different in hue and quality. The
procedures applicable in cases of the two types are certain-
ly radically different. The authorities entrusted with the
power of ordering punitive and preventive detentions also
act on very different principles and for very different
reasons. The Constitutional justification for preventive
detention was considered by this Court at some length
in Shukla’s case (supra). Although preventive detention,
which is constitutionally sanctioned in this country, and
punitive detention may be qualitatively different and be
regulated by entirely different procedures and may have very
different immediate objectives, yet, if we closely examine
the total effects and ultimate social purposes of detention,
whether preventive or punitive, it seems to me, speaking
entirely for myself, that the theoretical distinctions
become less obvious. It seems to me that the broad purpose
of all action which results in the detention of a person by
the State or its officers must necessarily be a deprivation
which could, if their effects on the detenu alone were to
be considered, be not incorrectly described as "punitive".
Again, "preventive" detention, like "punitive" detention,
may have some therapeutic or reformative purposes behind
them for the detaining authorities viewing the matters from
administrative or psychological points of view necessitating
some action in national interest. Some jurist, who under-
takes a study of the subject, may discover certain broad
similarities of social purposes, side by side with the
distinctions already pointed out by this Court.
In Shukla’s case I indicated that the exercise of power
of preventive detention during an Emergency may be viewed as
a purely administrative. or. to use the term employed by Sir
William Hordsworth. even "political" action lying in an area
which is completely protected from judicial scrutiny. As we
indicated in Shukla’s case, high
754
authority can be cited for such a proposition [see Liver-
sidge’s(1) case, and Rex v. zadiq(2)]. The result seems to
me to be that the principle that the doctrine of State
necessity is not available to a State against its own
citizens becomes inapplicable during an Emergency, at least
as a result of the suspension of enforceability of the
rights of citizens under Articles 19 and 21 ,of the Consti-
tution. This seems to me to flow directly from the implica-
tions of the maxim "Salus Populi Est Supreme Lax" (regard
for public welfare is. the highest law) applied by us in
Shukla’s case (supra) and by English Courts in Liver-
sidge’s case (supra) and Zadig’s .case (supra). .This,
however, does not mean that the persons detained are with-
out any remedy as was pointed out in Shukla’s case. The
result only’ is that the remedy for all their, grievances
lies, in times of Emergency, with the executive and adminis-
trative authorities of the State where they can take all
their complaints. Here, we have to be content .with de-
claring the legal position that the High Courts, acting
under Art. 226, have not been given the power to interfere
in any matter involving the assertion or enforcement of a
right to personal freedom by the detenus during an Emergen-
cy, when exercise of such power of High Courts is suspend-
ed. We are not concerned in these cases with other kinds of
claims which may arise before the ordinary criminal or civil
courts for wrongs done by officers acting maliciously in
purported exercise of their powers. We are only concerned
here with the powers of High Courts under Art. 226 of the
Constitution.
I have no doubt whatsoever, that if the object of a
proceeding is to enforce the fundamental right to personal
freedom, a High Court’s jurisdiction under Art. 226 is
barred during an Emergency even if it involves adjudication
on the question of vires of a rule made under enactments
authorising preventive detention. I find it impossible to
invalidate a rule either intended for or used for regulating
the conditions of detention of a person detained under one
of the Acts authorising preventive detention, on the ground
that the rule could only be used for persons in "punitive"
detention. The attack on the validity of such a rule
cannot succeed on the ground that the object of the rule
should be shown to be preventive and not punitive. I fail
to find a reasonably practical method of distinguishing a
rule which could be used for those in preventive detention
under an Act authorising it from another rule which could
only apply to persons in punitive detention undergoing
sentences of imprisonment. These are really administrative
matters with which High Courts can have no concern for the
reasons given above and also in Shukla’s case (supra).
Learned counsel for the detenus appear to me to be
resurrecting the ghost of a "Natural law" which we thought
we had laid to rest in Shukla’s case (supra). As certain
arguments based on what looks like "National Law" have been
advanced again before us, I may cite an instructive passage
from Judge Cordozo’s "Nature Of the Judicial Process". He
said:
(1) [1942] A.C. 206.
(2) [1917] A.C. 260.
755
"The law of nature is no longer conceived of as some-
thing static and eternal. It does not override human or
positive law. It is the stuff out of which human or posi-
tive law is to be woven, when other sources fail. The
modern philosophy of law comes in contact with the natural
law philosophy in that the one as well as the other seeks
to be the science of the just. But the modern philosophy of
law departs essentially from the natural-law philosophy in
that the latter seeks a just, natural law outside of posi-
tive law, while the new philosophy of law desires to deduce
and fix the element of the just in and out of the positive
law--out of what it is and of what it is becoming. ’the
natural law school seeks an absolute ideal law, ’natural
law’. ....... by the side of which positive law has only
secondary importance. The modern philosophy of law recog-
nizes that there is only one law, the positive law, but it
seeks its ideal side, and its enduring idea."
I respectfully agree with this statement of the rela-
tionship between natural law and positive law today, in the
application of law by courts governed by and subject to the
limitations of a written Constitution such as ours. Let us,
however, assume, in order to test the correctness of the
proposition, that a rule of natural law, having as much
force and validity as a rule of positive law embodied in a
statute, has been infringed. Let us go a little further,
and even assume that a rule embodied in a statute has been
violated by an authority functioning under the Constitu-
tion in either framing or administering a rule. Can
Courts, exercising powers under Article 226, declare that
rule or purported action of an executive authority dealing
with a detenu under the rule, or in exercise of its discre-
tion, to be ultra vires ? We are all aware of the dictum of
Justice Holmes that "law is not logic". Nevertheless, I do
not think that the Courts have the power to persue a logic
of their own to overcome what the letter of the Constitution
clearly prohibits. The precedents we have discussed at
length in Shukla’s case indicate the declarations of law,
that Articles 19 and 21 embrace every aspect of an alleged
infringement of the right to personal freedom by a State
authority or officer purporting to act under a law, by which
we are bound, Even if the action violates a protection
conferred by Article 21 upon citizens as well as non-citi-
zens in ordinary times, yet, the result of the suspension of
the protection given by Article 21 must necessarily be that
the protection cannot be enforced during an Emergency. If
that be the effect of the Presidential declaration under
Article 359, as we declared it to be after a very anxious
consideration in Shukla’s case we cannot go behind this
declaration of law and the express letter of the law as
embodied in our Constitution, and enforce what may be cov-
ered by the right to personal freedom in ordinary times
whether it parades under the guise of natural law or statu-
tory law or Constitutional, law. This consequence seems to
me to flow logically and naturally and necessarily from the
whole trend of reasoning and, in any ease, from the actual
declaration of law and the conclusion recorded by us in
Shukla’s ease. I would, therefore, consider any
14--112SCI/77.
756
stray sentences or expressions of opinion, in our judg-
ments in Shukla’s case, which may, torn out of their con-
text, give a contrary impression, to be mere obiter dicta.
For the reasons given above, as well as those given by my
learned brother Jaswant Singh, I concur with the orders
proposed by my learned brother.
P.B.R.
Appeals allowed
757