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1977 (1) TMI 147 - SC - Indian LawsWhether in view of the orders dated June 27, 1975 and January 8, 1976 issued by the President under clause (1) Article 359 of the Constitution, the petitions under Articles 226 and 227 of the Constitution were maintainable? Held that:- Detenu 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 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 administrative 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. 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.
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