TMI Blog1966 (12) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... il further orders." Clause (g) enables the Central Government to make an order detaining a foreigner. The clause does not narrate the reasons for which he can be detained. If, as the respondent says, the petitioner is involved in a serious case of conspiracy to smuggle gold and on that account his detention in India was necessary to make further investigation with regard to his conduct, we do not see why the wide power conferred on the Central Government to detain him under clause (g) could not be invoked. There is no merit in this contention also. Appeal dismissed. - Writ Petition No. 155 of 1966 - - - Dated:- 15-12-1966 - RAO, K. SUBBA (CJ), HIDAYATULLAH, M., SIKRI, S.M., BACHAWAT, R.S. AND SHELAT, J.M., JJ. For the Petitioner : R. V. Pillai For the Respondent : N. S. Bindra and R. N. Sachthey, JUDGMENT Subba Rao, C.J. This petition under Article 32 of the Constitution of India raises the question of validity of the detention of the petitioner under s. 3 of the Foreigners Act, 1946 (Act No. 31 of 1946) (hereinafter called the Act). The petitioner is a Pakistani national who entered India without any travel documents. On May 8, 1964, he was arrested in New ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of U. P.( )[1962] 1 S.C.R. 574,590) was relied upon in support of the said contention. There, the High Court dismissed a writ petition under Art. 226 of the Constitution after hearing the matter on merits, on the ground that no fundamental right was proved or contravened and that its contravention was constitutionally justified. The petitioner therein did not prefer an appeal against that order to this Court; but he filed an independent petition under Art. 32 of the Constitution in this Court on the same facts and for the same reliefs. This Court held that the petition in this Court would be barred by the general principles of res judicata. That decision related to a right claimed by the petitioners therein. The petitioners in that case sought to enforce their fundamental right to property which had been negatived by the High Court in its order made on an application presented by them under Art. 226 of the Constitution. While upholding the plea of res judicata, this Court made the following observations in the context of the said plea vis-a-vis the writ of habeas corpus : "In England, technically an order passed on a petition for habeas corpus is not regarded as a judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effective remedy against illegal restraints. It is inextricably intertwined with the fundamental right of personal liberty. "Habeas Corpus" literally means "have his body". By this writ the court can direct to have the body of the person detained to be brought before it in order to ascertain whether the detention is legal or illegal. Such is the predominant position of the writ in the AngloSaxon jurisprudence. We need not go into the history of this writ in India, for it is now incorporated in Art. 226 and Art. 32 of the Constitution. On the question of res judicata, the English and the American Courts agreed that the principle of res judicata is not applicable to a writ of habeas corpus, but they came to that conclusion on different grounds. It was held in England that a decision in a writ of habeas corpus was not a judgment, and therefore it would not operate as res judicata and on that basis it was thought at one time that a person detained could file successive applications before different judges of the same High Court. But subsequently the English courts held that a person detained cannot file successive petitions for a writ of habeas corpus before different courts of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciple of res judicata is not applicable to a fundamentally lawless order. If the doctrine of res judicata is attracted to an application for a writ of habeas corpus, there is no reason why the principle of constructive res judicata cannot also govern the said application, for the rule of constructive res judicata is only a part of the general principles of the law of res judicata, and if that be applied, the scope of the liberty of an individual will be considerably narrowed. The present case illustrates the position. Before the High Court the petitioner did not question the constitutional validity of the President's order made under Art. 359 of the Constitution. If the doctrine of constructive res judicata be applied, this Court, though it is enjoined by the Constitution to protect the right of a person illegally detained, will become powerless to do so. That would be whittling down the wide sweep of the constitutional protection. We, therefore, hold that the order of Khanna, J., made in the petition for habeas corpus filed by the petitioner does not operate as res judicata and this Court will have to decide the petition on merits. It was suggested that the declaration of Eme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eading to totalitarianism. Indeed, the perversions of the ideal democratic Constitution i.e. Weimar Constitution of Germany, brought about the autocratic rule of Hitler and the consequent disastrous World War. What is the safeguard against such an abuse? The obvious safeguard is the good sense of the Executive, but the more effective one is public opinion. A question is raised whether this Court can ascertain whether the ,action of the Executive in declaring the emergency or continuing 'it is actuated by mala fides and is an abuse of its power. We do /not propose to express our opinion on this question as no material has been placed before us in that regard. It requires a careful research into the circumstances obtaining in our country and the motives operating on the minds of the persons in power in continuing the emergency. As the material facts are not placed before us, we shall not in this case express our opinion one way or other on this all important question which is at present agitating the public mind. Mr. Pillai then contended that the power of the President under Art. 359(1) to suspend the right to move any court for the ,enforcement of fundamental rights must have a rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order dated 30-10-1962 relating to foreigners which we have already noticed, the President passed an order dated 3-11-1962. It was subsequently amended on 11-11-1962. The order as amended declares that the right of any person to move any court for the enforcement of the rights conferred by Arts.14,21 and 22 of the Constitution shall remain suspend for the period during which the Proclamation of Emergency issued under clause (1) of Art.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. It will be seen that the order dated 30-10-1962 was confined to foreigners and the order dated 3-11-1962 was confined to persons who had been deprived of their rights under the Defence of India Ordinance, 1962. Reliance was placed upon the terms of Art. 359 and a contention was raised that the said Article did not countenance orders on different groups of persons. It is true that Article 359 does not speak of persons but only speaks of a right to move any court and also to a period, or a part or whole of the territory. But Article 359 empowers the Presi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order which, is a. valid one. An order making an unjustified discrimination in suspending the right to move a court under Art. 14 itself, will be void at its inception. It is a still born order. It cannot be said that this involves an argument in a circle. This argument ignores the distinction between the order and the effect of that order. If the order does not violate Art. 14, it can validity take away the right to move the court to enforce Art. 14. So viewed, the order of the President must satisfy the requirements of Art. 14. Mr. Bindra relied upon the decision of this Court in Sree Mohan, Chowdhury v. The Chief Commission, Union Territory of Tripura (1) in support of his argument that the order of the President was untrammelled by the provisions of Art. 14. The passage relied upon reads : "It was also contended that the President's order of Novem- ber 3, 1962, is subject to the condition precedent that there is a valid Ordinance and the rules framed or the orders made thereunder are valid. In other words, it is contended that it is open to the petitioner to canvass the validity of the Ordinance. This is arguing in a circle. In order that the Court may investigate the vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the object sought to be achieved by the statute in question." What was the object of the order GSR 1418 issued by the President on 30-10-1962. There was a grave emergency. The Chinese attacked India and Pakistan was poised for an attack. There was a danger of internal sabotage. So, it was necessary to screen the foreigners, and to guard against their acts of sabotage and espionage. It was, therefore, necessary to issue a special order wider in scope than that of GSR 164 dated 3-11-1962 which was confined only to persons that had been deprived of certain rights under the Defence of India Ordinance. There was a greater danger from foreigners, and, therefore, a more drastic order only could meet the requirements of national ,security. Compared to foreigners, nationals, with some un- fortunate exceptions, can be relied upon to support the country's integrity and security. There is, therefore, a clear nexus between the classification of foreigners and the citizens and the object sought to be achieved thereby. Nor can we appreciate the argument that the making of two orders, one confined to foreigners and the other confined to all persons, including foreigners, violates Art. 14. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uct the said investigation, the argument proceeded, the detention of the petitioner in the said circumstances was an abuse of powers under the Foreigners Act. It was further contended that s. 3 of the Foreigners Act was intended for regulating the entry and the exit of foreigners into and out of India, that it had nothing to do with the investigation of cases, and that therefore, the detention under that Act for the sole purpose of investigation was mala fide. The order of detention dated 18th September, 1964 reads: "In exercise of the powers conferred by sub-section (1) read with clause (g) of sub-section (2) of section 3 of the Foreigners Act, 1946 (31 of 1946) the Central Government hereby orders that Shri Ghulam Mohuddin a Pakistani National shall be arrested and detained until further orders." Clause (g) enables the Central Government to make an order detaining a foreigner. The clause does not narrate the reasons for which he can be detained. If, as the respondent says, the petitioner is involved in a serious case of conspiracy to smuggle gold and on that account his detention in India was necessary to make further investigation with regard to his conduct, we do not see why th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the remedy of a writ of habeas corpus is available to test the propriety or legality of the verdict of a competent Criminal Court. The petitioner challenges the legality of the order, GSR 1418 dated October 30, 1962 in respect of foreigners passed by the President under Art. 359(1) of the Constitution on the ground that it is discriminatory and violative of Art. 14. The argument is this : Article 359(1) does not operate of its own force. The President has to make an order under it declaring that the right to move a Court in respect of a fundamental right in Part III is suspended. The order of the President under Art. 359(1) is a law within the meaning of Art. 13(2). An order under Art. 359(1) which takes away or abridges a fundamental right is void under Art. 13 (2). Therefore, the validity of an order under Art. 359(1) may be questioned if it abridges or takes away a fundamental right other than the right under Art. 19 which is already suspended under Art. 358. On the other hand, the respondent's argument is this.- An ,order of the President under Art. 359(1) suspending the right to move this Court for the enforcement of any right conferred by Part III necessarily abrid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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