TMI Blog1976 (4) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... DGMENT: Per M. H. Beg, 1. A prima facie valid detention order, that is to say, one duly authenticated and passed by an officer authorised to make it recording a purported satisfaction to detain the petitioner under the Maintenance of Internal Security Act, which is operative either before or after its confirmation by the Government, is a complete answer to a petition for a writ of habeas corpus. Once such an order is shown to exist in response to a notice for a writ of habeas corpus, the High Court cannot inquire into its validity or vires on the ground of either mala fides of any kind or of non-compliance with any provision of the Maintenance of Internal Security Act in habeas corpus proceedings. [371 G-H, 372 A] 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 functions 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 eme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subject of enforcement of the right to personal freedom was deliberately restricted by our Constitution makers. It is difficult to see any such scope when enforcement itself is suspended. [314 E-F, 315 B-C] What is suspended is really the procedure for the enforcement of a right through courts which could be said to flow from the infringement of a statutory procedure. If the enforcement of a right to be free, resulting derivatively from both the constitutional and statutory provisions based on an infraction of the procedure. which is statutory in cases of preventive detention, is suspended, it is impossible to lay down that it becomes enforceable when that part of the procedure which is mandatory is violated but remains unenforceable so long as the part of the procedure infringed is directory. Such a view would introduce a distinction which is neither warranted by the language of Article 359 of the Constitution nor by that of the Presidential order of 1975. [315 F-G] If the protection of enforceability is validly suspended for the duration of an Emergency, declared under constitutional provisions, the courts will have nothing before them to enforce so as to able to afford ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xistence. [319 G-H, 320 A] State of Orissa v. Dr. Miss Binapani Dei ors. [1967] 2 SCR 625, applied. Fundamental Rights are basic aspects of rights selected from what may previously have been natural or common law rights. These basic aspects of rights are elevated to a new level of importance by the Constitution. Any other coextensive rights, outside the Constitution, are necessarily excluded by their recognition as or merger with Fundamental Rights. [329 B] 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 (i e. Article 20) of the State. This necessarily means that these safeguards can also be legally removed under appropriate constitutional or statutory provisions, although their suspension does not, by itself, take away the illegalities or their legal consequences. The intention was to exclude all other control or to make the Constitution, the sole repository of ultimate control over those aspects of human freedom which are guaranteed in Part m. [319 A-C 329 C] Article 21 of the Constitution has to be interpreted comprehensively enough to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould serve as substitutes for those conferred by Part III of the Constitution. They could not be, on any principle of law or justice or reason, virtually added to Part III as complete replacements for rights whose enforcement is suspended, and then be enforced, through constitutionally provided machinery, as the unseen appendages of the Constitution or as a separate group of rights outside the Constitution meant for the emergency which suspends but does not resuscitate in a new form certain rights. [325 B-D] His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala [1973] Supp. SCR @ 1. Satish Chandra Chakraworti v. Ram Dayal De ILR 48 Cal. 388 P @ 407-410, 425 and 426: Waghela Rajsanji v. Sheikh Masludin and ors. 14 Indian Appeals p. 89 and Baboo Seo Thakur Dhobi v. Mst. Subanshi w/o Mangal Dhobi, AIR 1942 Nagpur 99, referred to. Not only all steps leading up to the deprivation of personal liberty but also the substantive right to personal freedom. by implication, is covered by Article 21 of the Constitution. [328 E-F] 1. C. Golaknath ors. v. Sate of Punjab and Another [1962] 2 SCR 762. Even if Art. 21 is not the sole repository of all personal freedom, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court under Art. 226 could come to the aid of a detenu when the right to enforce a claim to personal freedom, sought to be protected by the Constitution is suspended. [331 E-F] Provision for preventive detention in itself aptly described as jurisdiction of suspicion is a departure from ordinary norms, and resorted to either in times of war or of apprehended internal disorders and disturbances of a serious nature, with the object of preventing a greater dager to national security and integrity than any claim which could be based upon a right, moral or legal, to individual liberty. [332 B-C] Haradhan Saha Anr. v. The State of West Bengal and ors. [1975] 1 SCR 778; Khudiram Das v. State of West Bengal [1975] 2 SCR p.832 @ p. 842; State of Madras v. V.G. Row AIR 1952 SC 197 @ 200 and Rex v. Halliday [1917] A.C. 260 @ 275, referred to. It is true that the Presidential order of 1975 like the Presidential order of 1962, does not suspend the general power of this Court under Art. 32 or the general powers of High Courts under Art. 226, bot the effect of taking away enforceability of the right of a detenu to personal freedom against executive authorities is to affect the locu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 K.B. 72 and Green v. Secretary of State of Home Affairs, [1942] AC 284 @ 293, discussed. Decisions on what restraints should be put and on which persons during a national emergency, in the interests of national security, are matters of policy which are outside the sphere of judicial determination. [344 G] Liversidge v. Sir John Anderson [1942] AC 206 and Rex v. Halliday Ex Parte Zadiq [1917] AC 260, referred to. Under our Constitution, there is no distinction between the effects of a declaration of emergency under Art. 352(1) whether the threat to the security of the State is from internal or external sources. Presidential declarations under Art. 352(1) and 359(1) of our Constitution are immune from challenge in courts even when the emergency is over. A noticeable feature of our Constitutions is that, whereas the consequences given in Art. 358 as a result of a Proclamation under Art. 352(1) are automatic, Presidential orders under Article 359(1) may have differing consequence, from emergency to emergency depending upon the terms of the Presidential orders involved. And then, Article 359(1A) made operative retrospectively by the 38th Constitutional amendment of 1st August ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f infringement of their fundamental rights by the executive authorities of the State. The intention of the Parliament itself to bring about this result so that the jurisdiction of courts under article 226 in this particular type of cases is itself affected for the duration of the emergency, seems clear enough from the provisions of S. 16A(9) of the Act, introduced by Act No. 14 of 1976, which received Presidential assent on January 25. 1976, making s. 16A(9) operative retrospectively from June 25, 1975. [352 F-H] There is no doubt that the object of the Presidential (order of June 27, 1975, by suspending the enforcement of the specified rights, was to affect the powers of courts to afford relief to those the enforcement of whose rights was suspended. This was within the purview of Article 359(1). Hence objections that powers of the courts under. Art. 226 may indirectly be affected is no answer to the direct suspension of rights which was bound to have its effect upon the manner in which jurisdiction is or could reasonably be exercised even if that jurisdiction cannot be itself suspended for all types of cases. [353 A-B] The term Rule of Law is hot a magic wand which can h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is available for the courts to apply during the emergency to test the legality of executive action. [355 AC] Mohd. Yaqab etc. v. The State of Jammu Kashmir [1968] 2 SCR p. 227 @ 234, referred to. The suggestion that a common law remedy by way of writ of habeas corpus exists, even after s. 491 was introduced in the. Criminal Procedure Code in 1923, is incorrect. The sweep of Art. 359(1) of the Constitution taking in the jurisdiction of any court is wide enough to cover any kind of relief claimed by a petitioner for the enforcement of a specified Fundamental Right. [355 D-E] Pleas which involve any adduction of evidence would be entirely excluded by the combined effect of the terms of The Presidential order of June 27, 1975 read with the amended provisions of s. 16A(9) of the Act. In a case in which the officer purporting to detain had in fact, not been invested at all with any authority to act, the detention would be on the same footing as one by a private person who has no legal authority whatsoever to detain. [357 C-E] Makhan Singh v. State of Punjab [1964] 4 SCR 797 @ 821- 822 and 5. Pratap Singh v. State of Punjab [1964] 4 SCR 733, referred to. The suspensio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities. There is no bar against that. What is hot possible is to secure a release by an order in habeas corpus proceedings after taking the courts behind a duly authenticated prima facie good return. [366 B-C] If the meaning of the emergency provisions in our Constitution and the provisions of the Act is clearly that what lies in the executive field should not be subjected to judicial scrutiny or judged by judicial standards of correctness the courts cannot arrogate unto themselves a power of judicial superintendence which they do not, under the law during the emergency, possess. [362 H] It does not follow from a removal of the normal judicial superitendence even over questions of vires, of detention orders, which may require going into facts behind the returns that there is no Rule of Law during the emergency or that the principles of ultra vires are not to be applied at all by any authority except when, on the face of the return itself, it is demonstrated in a court of law that the detention does not even purport to be in exercise of the executive power or authority or is patently outside the law authorising detention The intention behind emergency provisions and of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under s. 3 of the Act, if prima facie case is made out. [336 G-H, 337 A] Observation [The same result could have been achieved by enacting that a detention order under s. 3, prima facie good, will operate as conclusive proof that the requirements of s. 3 have been fulfilled. But, as the giving of grounds is not entirely dispensed with under the Act even as it now exists, this may have left the question in doubt, whether courts could call upon the detaining authorities to produce the grounds. Enactment of a rule of conclusive proof is a well established form of enactments determining substantive rights in the form of procedural provisions]. [337 A-B] Section 16A(9) makes it impossible for courts to investigate questions relating to the existence or absence of bona fides at least in proceeding under An. 226, It is clear that the validity of s. 16A(9) cannot be challenged on the ground, of any violation of Part III of the Constitution in view of the provisions of Art. 359(1)(A). [353 C-D] A challenge to the validity of s. 16A(9) based either on the submission on hat grounds for detention do not call for secrecy or that the provision is an unwarranted invasion o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties of proving the strict legality and correctness of every step in the procedure adopted in a case of deprivation of personal liberty, and asking the executive authorities to satisfy such a requirement, in accordance with what has been called the principle in Eschugbayi Eleko s case, [1931] A.C. 662 @ 670, would be to nullify the effect of the suspension of the enforceability of the procedural protection to the right of Personal freedom. To do so is really to take the Presidential order under Article 359(1) of the Constitution ineffective. [368 B-C] No question of malice in law can arise in habeas corpus proceedings when such a protection is suspended. As regards the issue of malico in fact it cannot be tried at all in a habeas corpus proceedings although it may be possible to try it in a regular suit the object of which is not to enforce a right to personal freedom but only to obtain damages for a wrong done which is not protected by the terms of s. 16 of the Act. The possibility of such a suit should be another deterrent against dishonest use of these powers by detaining officers. [1368 D-E] Section 18, though unnecessary, appears to have been added by way of abundant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of 1975. Habeas corpus petitions are not maintainable, in such cases since the prisoner is deemed to be in proper custody under orders of a court. [371-F-G] Neither Article 136 nor Art 226 of the Constitutional is meant for the exercise of an advisory jurisdiction. Attempts to lay down the law in an abstract form, unrelated to the facts of particular cases, not only do not appertain to the kind of jurisdiction exercised by this Court or by the High Courts under the provisions of Art. 136 and 226 respectively, but may result in misapplications of the law declared by courts to situations for which they were not intended at all. [306 D-E]. Per Chandrachud, J. The order issued by the President on June 27, 1975, under Article 359(1) does not suspend the fundamental principle that all executive action must have the authority of law to support it. Nor does the Presidential order give to the executive a charter to disobey the laws made by the Parliament which is the supreme law making authority.[413 BC] The aforesaid Presidential order, however, deprives a person of his locus stand; to move any court, be it the Supreme Court or the High Court, for enforcement of his Fundam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be said that some other Article of the Constitution stands thereby amended article 359(1) provides for the passing of an order by the President declaring that the right to move for the enforcement of Fundamental Rights mentioned. in the order shall be suspended. That may, in effect. affect the jurisdiction of the High Courts to entertain a petition for the issuance of the writ of habeas corpus. But, that does not bring about any amendment of Article 226 within the meaning of Art. 368, which speaks of amendments to the Constitution by the Parliament in the exercise of its constitutional power. Article 226 and Article 359(1) are parts of the same fundamental instrument and a certain interpretation of one of these Article cannot amount to an amendment of the other. 1;385 G-H, 386 A-B] The Presidential order neither bars the right of an accused to defend his personal liberty in the court of first instance or in a higher court nor does it bar the execution of decrees passed against the Government, nor dos it bar the grant of relief other than or less than the release of the detenu from detention. [414 B-C] Detention without trial is a serious on personal freedom but it bea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Art. 359 (1A) on the one hand and of Art 359(1) on the other. Article 358, of its own force, removes the restrictions on the power of the Legislature to make laws inconsistent with Art. 19 and on the power of the Executive to take action under a law which may thus violate Art. 19. Article 358 does not suspend any right which was available under Art. 19 to any person prior to the Proclamation of Emergency. Article 359(1) is wider in scope than Art. 358. In view of the language of Art. 359(1) and considering the distinction between it and the provisions of Art. 358, there is no justification for restricting the operation of Art. 359(1) as against laws made by the Legislatures in violation of the Fundamental Rights. [386 G-H, 387 A-E] Sree Mohan Choudhary v. The Chief Commissioner, Union Territory of Tripura [1964] 3 SCR 442 and Makhan Singh v. State of Punjab [1964] 4 SCR 797. referred to. Article 359(1) is as much a basic feature of the Constitution as any other, and it would be inappropriate to hold that because in normal times the Constitution requires the Executive to obey the laws made by the Legislature, therefore. Article 359(1) which is an emergency measure, must be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions contained in Chapter XVIII of the Constitution. There cannot be a brooding and omnipotent Rule of Law drowning in its effervescence the emergency provisions of the Constitution. [393-B-D] Article 359(1) neither compels nor condones the breaches by the executive of the laws made by the Legislature. Such condonation is the function of an act of indemnity. [393 G] The object of empowering the President to issue an order under Alt. 359(1) suspending the enforcement of the right to personal liberty conferred by Part III of the Constitution cannot be to save all other rights to personal liberty except the one conferred by Part III which seems totally devoid of meaning and purpose. Their is nothing peculiar in the content of the right to personal liberty conferred by Part III so that the Constitution should provide only for the suspension of the right to enforce that particular kind of right leaving all other rights to personal liberty intact and untouched. This purpose cannot ever be achieved by interpreting Article 359(1) to mean that every right to personal liberty shall be enforceable and every proceeding involving the enforcement of such right shall continue during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherever it is found unless its content is totally different as from one Article to another. The right conferred by Article 21 is only a description of the right of personal liberty in older to facilitate its exact identification and such a description cannot limit the operation of the Presidential order to those cases only where the right to personal liberty is claimed under Article 21. [398 F-G] Rustom Cavasajee Cooper v. Union of India [1970] 3 SCR 530, 578, referred to. The circumstance that The pre-constitution rights continued in force after the enchantment of the Constitution in view of Art. 372 does not make any difference to this position because even assuming that certain rights to personal liberty existed before the Constitution and continued thereafter as they were not repugnant to any provision of the Constitution all rights to personal liberty. having the same content as the right conferred by Art. 21 would fall within the mischief to the Presidential order. [398 C-H, 399 A] The theory of eclipse has no application to such cases because that theory applies only when a pre-Constitution law becomes devoid of legal force on the enactment of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghts conferred by Part III is not taken away by Article 359(1). It is the Presidential order passed in pursuance of the powers conferred by that Article by which such a consequence can be brought about. The Presidential order in the instant case is not subject to the preconditions that the detenu should have been deprived of his right under any particular Act and therefor, there is no scope for the enquiry whether the order is consistent or in conformity with any particular Act. [405 B-H, 406 A, 407 B-C] Makhan Singh v. State of Punjab [1964] 4 SCR 797; Dr. Ram Manohar Lohia v. State of Bihar [1966] 1 SCR 709. K. Anandan Nambiar and Anr. v. Chief Security Government of Madras ors. [1966] 2 SCR 406. State of Maharashtra v. Prabhakar Pandurang Sangzgiri Anr. [1966] 1 SCR 702, discussed and distinguished. A mala fide exercise of power does not necessarily imply any moral turpitude and may only mean that the statutory power is exercised for purposes Other than those for which the power was intended by law to be exercise. In view of the fact that an unconditional Presidential order of the present kind effects the locus standi of the petitioner to move any court for the enforce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate with the right of an aggrieved person to complain of the invasion of his rights. Section 16A(9) cannot be said to shut out an inquiry which is otherwise within the jurisdiction of the High Court to make. [411 B] Section 18 does not suffer from the vice of excessive delegation and is a valid piece of legislation. [414 D] That section only declares what was the true position prior to its enactment on June 25, 1975. The amendment of section 18 by the substitution of the words in respect of whom an order is made or purported to be made under s. 3 , in place of the words detained under this Act , does not render the section open to a challenge on the ground of excessive delegation. The words purported to be made have been inserted in order to obviate the challenging that the detention is not in strict conformity with the Act. Such a challenge is even otherwise barred under the Presidential order. The object of he said provision is not to encourage the passing of lawless orders of detention but to protect during emergency orders which may happen lo be in less Than absolute conformity with the Maintenance of Internal Security Act, 1971. [412 B-C] His Holiness Kesvananda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Makhan Singh v. State of Punjab [1964] 4 SCR 797, followed. When a Presidential order is issued under Art. 353, clause (1), the Fundamental Right mentioned in the Presidential order is suspended so that the restriction on the power of the executive or the legislature imposed by the Fundamental Right is lifted while the Presidential order is in operation and the executive or the legislature is free to make any law or to make any action which it would, but for the provisions contained in Part 111, be competent to make or to take. the words but for the provisions contained in that part that is, but for the Fundamental Rights, mean if the Fundamental Rights were not there in the Constitution, the executive being limited by law would still be unable to take any action to the prejudice of a person except by authority of law and in conformity with or in accordance with law and, therefore, even the Presidential order mentions Art. 21, clause (1A) of Art. 359 Would not enable the executive to deprive a person of his Personal liberty without sanction of law and except in conformity with or in accordance with law. It an order or dentention is made by the executive without the author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e no Fundamental Right conferred by Art. 21 and even if a person is deprived of his personal liberty otherwise than in accordance with the procedure established by law and there is infringement of Art .21, such person would not be entitled to move the Supreme Court for a writ of habeas corpus under Art. 32, for that Article is available only for enforcement of the rights. conferred by Part III. That would be a starting consequence, as it would deprive the Supreme Court of a wholesome jurisdiction to protect the personal liberty of an individual against illegal detention, resulting in a departure from the well settled constructional position of Art. 21. [432 B-D] No attribute of personal liberty can be regarded as having been calved out of Art. 21. That Article protects all attributes of persona; liberty against, executive action which is not supported by law. When a person is detained. there is deprivation of personal liberty within the meaning of Art. 21. 1433 A-BI Kharak Singh v. State of U.P. Ors. [1964] 1 SCR 332. referred to The protection under Art. 21 is only against State action and not against private individuals and the protection, it secures, it is a limited o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ande v. Emperor AIR 1945 Nag. 8. Jitenderanath Ghosh v. The Chief Secretary to the Government of Bengal, ILR 60 Cal. 364 at 377; In re: Banwarilal Roy 48 Cal. Weekly Notes 766 at 780; Secretary of State for India v. Hari Bhanji (1882) ILR 5 Mad. 373; Province of Bombay v. Khushaldas Advani [1950] SCR 621 and P. K. Tare v. Emperor AIR 1943 Nag. 26, referred. Even prior the Constitution, the principle of rule of law that the executive cannot act to the prejudice of a person without the authority of law was recognised as part of the law of the land and was uniformly administered by the courts. It was, clearly law in force and, ordinarily, by reason of Art. 372 it would have continued to subsist as a distinct and separate principle of law hr even after the commencement of the Constitution, until some aspects of this principle of Law were expressly recognised and given constitutional embodiment in different Articles of the Constitution. [439 B-C] When this principle of rule of law that the executive cannot deprive a person of his liberty except by authority of law, is recognised and embodied as a Fundamental light and enacted as such in Art. 21, it cannot continue to have a di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sanctioned by law. As soon as the emergency comes to an end and the Presidential order ceases to be operative, the unlawful action of the executive becomes actionable and the citizen is entitled to challenge it by moving a court of law. [161 A-C] Whilst a Presidential Order issued under Art. 359, clause (1) is in operation, the Rule of Law is not obliterated and it continues to operate in all its vigour. The executive is bound to observe and obey the law and it cannot ignore or disregard it. If the executive commits a breach of the law its action would be unlawful but merely the remedy would be temporarily baned where it involves enforcement of any of the Fundamental Rights specified in the Presidential order. [461 C-D] When the right of personal liberty based on the Rule of Law which existed immediately prior to the Commencement of the Constitution has been enacted in the Constitution as a Fundamental Right in Art. 21 with the limitation that when there is a Proclamation of Emergency, the President may by order under Art. 359, clause (1) suspend its enforcement, that right of personal liberty based on the Rule of law cannot continue to exist as a distinct and independent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed. When the Presidential order is without any condition, in a detenu contends that the order of detention has been made mala fide or that it has been passed by a delegate outside the authority conformed on him under the Act or that it has been exercised inconsistently with the conditions prescribed in that behalf, that is, it is not in accordance with the Provisions of law, such a plea would be barred at the threshold by the Presidential order. [458 B-C] Quinn Leathen [1901] AC 495, State of Orissa v. Sudhansu Sekhar Misra [1968] 2 SCR 154. Makhan Singh Tarsikka v. The State of Punjab [1966] 2 SCR 797; A. Nambiar v. Chief Secretary [1966] 2 SCR 406 and Sate of Maharashtra v. Prabhakar Pandurang Sangzgiri [1966] 1 SCR 702, distinguished. There is no scope for the contention that even if the enforcement of the Fundamental Right conferred by Art. 21 is suspended by the Presidential order, the detenu can still enforce a supposed natural right of personal liberty in a court of law. [459 D] His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala [1973] Supp. SCR 1 and Golak Nath Ors. v. State of Punjab [1967] 2 SCR 762, referred to. If the positive law of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fundamental Right of the detenu or the murdered man under Art. 21 so as to attract the inhibition of the Presidential order. [461 F-G] An application seeking to enforce a statutory obligation imposed on the police officer and a statutory right created in favour of an arrested person by s. 57 of the Criminal Procedure Code would not be barred, because what is suspended by a Presidential Order specifying Art. 21 is the right to move the court for enforcement of the Fundamental Right conferred by that article and not the right to move the court for enforcement of the statutory right to be released granted under s. 57, Cr. P C..[462 G] If a positive legal right is conferred on a person by legislation and he seeks to enforce it in a court, it would not be within the inhibition of a Presidential Order issued under Art. 359, clause (1). [463 G-H] This does not mean that whenever a petition for a writ of habeas corpus comes before the court it must be rejected straightaway without even looking at the averments made in it. The court would have to consider where the bar of the Presidential order is attracted and for that purpose the court would have to the whether the order of dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h power during, martial law the situation can be brought about only by a Presidential order issued under C. Act 359 clause (i) and in no other way, and the Presidential Order. in so far as it suspends the enforcement of the right of personal liberty confirmed under Art. 21 must be constructed to bar challenge to the legality of detention in am, court including the Supreme Court and the High Courts whilst the Presidential Order is in operation, [444 A-C] Ex parte Milligan (1866) 4 Wallace 2; Moyer v. Peabody (1909) 212 US 76, and Duncan v. Kohanmeku (1945) 327 US 304, referred to. There are two rights which the detenu has in this connection: one is the Fundamental Right conferred by Art. 22, clause (5) and the other is the statutory right conferred by s. 8. Though the content of both these rights is the same, they have distinct and independent existence and merely because enforcement of one is suspended, it does not mean that the other also cannot be enforced. [463 B-C] The theory of reflection is clearly erroneous. If the right conferred under s. 8 were a reflection of the Fundamental Right conferred by Art. 22, clause (5) which is the object reflected must necessarily res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Art. 226 and would be void as offending that Article. [470 C D, 471 A-B, E-F] Hari Vishnu Kamath v. Syed Ahmad Ishaque Ors. [1955] 1 SCR 1104; Durga Shankar Mehta v. Thakur Raghuraj Singh Ors. [1955] 1 SCR 267; Raj Krushna Bose v. Binod Kanungo Ors. [1954] SCR 913; The Kerala Education Bill 1957, [1959] SCR 995; Prem Chand Garg v. Excise Commissioner, U.P. Allahabad [1963] Supp. 1 SCR 885; Khudiram Das v. State of West Bengal [1975] 2 SCR 832; Biren Dutta Ors. v, Cheif Commissioner of Tripura Anr. [1964] 8 SCR 295; M.M. Damnoo v. J K State [1972] 2 SCR 1014 and A.K. Gopalan v. State of. Madras [1950] SCR p. 80, referred. A rule of evidence merely determines what shall be regarded as relevant and admissible material or the purpose of enabling the court to come to a decision in the exercise of its jurisdiction and it does not in any way detract from or affect the jurisdiction of the court and it cannot, in the circumstances, be violative of Art. 226. But in order that if should not fall foul of Art. 226, is must be a genuine rule of evidence. If in the guise of enacting a rule of evidence the legislature in effect and substance disable and impedes the High Court fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases [476 E-F] M. M. Damnoo v. State of J K [1972] 2 SCR 1014; A. K. Gopalan v. State of Madras [1950] SCR 88 and Liversidge v. Sir John Anderson [1942] AC 206. referred to. The grounds, information and materials in almost all cases would be of a confidential character falling within the class of documents privileged under s. 123 and hence the rule enacted in sub-section genuinely partakes of the character of a rule of evidence. Sub-s. (9) (a) of s. 16A enacts a genuine rule of evidence and it does not detract from or affect the jurisdiction of the High Court- under Art. 225 and hence it cannot be successfully assailed as invalid. [476 G-H, 477 A] There is no warrant for reading down sub-section 9A of s. 16 so as to imply a favour in favour of disclosure to the court The provision does not constitute an encroachment on the constitutional jurisdiction or the High Court under Art. 226 and is accordingly not void. [477, C-D] If the declaration under sub-section (2) or sub-s. (3) is invalid, subs 9(a) of s. 16A will not be attracted on the grounds of information and materials on which the order of detention is made, would not be privileged under sub section therefore, sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e governed by laws would cease to have any meaning. the principle that no one shall be deprived of his life or liberty without the authority of law is rooted in the consideration that life and liberty are priceless possessions which cannot be made the plaything of individual whim and caprice and that any act which has the effect of tampering with life and liberty must receive substance from and sanction of the laws of the land. Article 21 incorporates an essential aspect of that principle and makes it part of the Fundamental Rights guaranteed in part III of the Constitution. It does not, however, follow from the above that if Art. 21 had not been drafted and inserted in Part III, in that even would have been permissible for the State to deprive a person of his life or liberty without the authority of law. There are no case, to show that before the coming into force of the Constitution or in countries under Rule of Law where there is no provision corresponding to Art. 21, a claim was ever sustained by the court, that the State can deprive a person of his life or liberty without the authority of law. [302 H, 269 H, 270 A C] Olmstead v. United States 277 U.S. 438 (1928); James Somm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akhan Singh v. State of Punjab [1964] 4 SCR 797, applied. Dhirubha Devisingh Gohil v. The State of Bombay [1955] I SCR 691, not invokable. The principle that no one shall be deprived of his life or liberty without the authority of law stems not merely from the basic assumption in every civilised society governed by the Rule of Law of the sanctity of life and liberty, it flows equally from, the fact that under our penal laws no one, is empowered to deprive a, person of his life or liberty without the authority of law [272 l I, 273 A] The fact that penal laws of India answer to the description of the word law which has been used in Art. 21 would not militate against the inference that Art. 21 is not the sole repository of the right to life or personal liberty. Nor is it the effect of Art. 21 that penal laws get merged in Art. 21 because of the act that they constitute law as mentioned in Art. 21, for were it so the suspension of the right to move a court for enforcement of Fundamental Right contained in Art.. 21 would also result in suspension of the right to move any court for enforcement of penal laws. At one time the Constitution came into force, the legal position was th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can seek relief from courts during the period of emergency against deprivation of life and personal liberty. If two constructions of the Presidential order were possible, the court should lean in favour of a view which does not result in such consequence. The construction which does not result in such consequences is not only possible, it is also pre-eminently possible. 1303 B-C] Equally well established is the rule of construction that if there be a conflict between the municipal law on one side and the international law or the provisions of any treaty obligations on the other, the courts would give effect to municipal law. If. however, two constructions of the municipal law are possible, The court should lean in favour of adopting such construction as would make the provisions of the municipal law to the in harmony with the international law or treaty obligations. While dealing with the Presidential Order under Art. 359(1) such a construction should be a adopted. as would, if possible, not bring it in conflict with the above Articles 8 and 9 of U.N Charter. It is plain that such a constructional is not only possible, it is a also pre-eminently reasonable The Presidential or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecisions. 1278 E. 281 E, 303 CD]- Rai Sahib Ram Jawaya Kapur Ors.. v. The State of Punjab [1955] 2 SCR 225: State of Madhya Pradesh Anr. v. Thakur Bharat Singh [1967] 2 SCR 454. Chief Settlement Commissioner, Rehabilitation Department Punjab Ors. etc. v. Om Parkash Ors. etc. [1968] 3 SCR 655; District Collector of Hyderabad Ors. v. M/s. Ibrahim Co. etc. [1970] 3 SCR 498; Bennett Coleman Co. and Ors. v. Union of India [1973] 2 SCR 757. Shree Meenaksi Mills Ltd. v. Union of India [1974] 2 SCR 398; Naraindas Indurkhya v. The State of Madhya Pradesh AIR 1974 SC 1232: Director of Rationing and Distribution v. The Corporation of Calcutta Ors [1961] 1 SCR 158; Bishan Das Ors. v. The State of Punjab Ors. [1962] 2 SCR 69; S. G. Jaisinghani v. Union of India Ors. [1967] 2 SCR 703. United States v. Wunderlick 342 US 98; John Wilkes s case (1770) 4 Burr. 2528 at 2539 and Smt.. Indira Nehru Gandhi v. Shri Rai Narain. [1976] 2 SCR 347, referred to. According to Art. 21. no one can be deprived of his right to personal liberty except in accordance with the procedure established by law. Procedure for the exercise of power of depriving a person of his right of personal Liber ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purview of Art. 359(1) and the Presidential order made thereunder. 1303 C-Hl Anandan Nambiar Anr. v. Chief Secretary, Govt. Of Madras [1966] 2 SC R 406 @ 410, referred to. Clause (1A) of Art.. 359 protects laws and executive actions from any attack on validity on the score of being violation of the Fundamental Rights mentioned in the Presidential order in the same way as Art. 358 protect the laws and executive actions from being challenged on the ground of being violative of Art. 19 during the period of emergency. The language of clause (IA) of It. 359 makes it clear that the protection which is afforded by that clause h is to such law or execute action as the State would but for the provisions contained in Part 111 of the Constitution be competent to make or take. The word competent has a significance and it is apparent that despite the Presidential order under Art. 359(1) in the case of executive action the competence of the State to take such action would have to be established. Such competence . Would, however, be judged ignoring the restriction placed by the provisions or Part III of tho Constitution. To put it in other words, clause (IA) of Art. 359 does not dispe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of procedure for the exercise of the substantive power would not do away with the compulsion regarding the existence of that power. [284 G-H, 285 A-G] In considering the effect of Presidential order suspending the right of a person tn move my court for enforcement of right guaranteed by Art, 21, the words except according to procedure established by law should not be treated to be synonymous with save by authority of law . [285 D] A Presidential order under Art. 359(1) cannot have the effect of suspending the right to enforce rights flowing from statutes, nor can it bar access to the courts of persons seeking redresses on he s ore of contravention of statutory provisions. Statutory provisions are enacted to be complied with and it is not permissible to contravene them. Statutory provisions cannot be treated as mere pious exhortations or words of advice which may be adjured or disobeyed with impunity. Nor is compliance with statutory provisions optional or at the sufference of the official concerned. It is the presence of legal sanctions which distinguished positive law from other systems of rules and norms. To be a legal system a set of norms must furnish sanctions fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our . Constitution. The acceptance of the contention advanced on behalf of the appellants would mean that during the period of emergency, the courts would be reduced to the position of being helpless spectators even if glaring and blatant instances of deprivation of Life and personal liberty in contravention of the statute are brought to their notice. It would also mean that whatever it may be the law passed by the legislature, in the matter of life, and personal liberty of the citizens, the executive during the period of emergency would not be bound by it and would be at liberty to ignore and contravene it. It is obvious that the acceptance of the contention would result in a kind of supremacy of the executive over the legislate and judicial organs of the State, and thus bring about a constitutional imbalance which perhaps was never in the contemplation of the framers of the Constitution. The fact the the government which controls the executive has to enjoy the confidence so the legislator does not d-tract from the above conclusion. The executive under our constitutional scheme is nob merely to enjoy the confidence of the majority in the legislature it is also bound to carry out t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion the legality of the detention orders and such petitions could be proceeded with despite that order. [293 F] Principle in James Commersett s case 1772 State Trials p. 1, referred to. A law of preventive detention is not punitive but precautionary and preventive. The power of detention under such law is based on circumstance of suspicion and not on proof of allegation as is required at a regular trial for the commission of an offence. [294 F] A court cannot go behind the truth of the alleged facts. If The material is germane to the object for which detention is legally permissible and an order. for detention is made don the basis of that material, the courts cannot sit as a court of appeal and substitute their own opinion for that of the authority concerned regarding the necessity of detention. [295 E-F] Sharpe v. Wakefield [1891] A.C. 172 at p. 179 and Ross v. Papadopollos [1958] 2 All. E.R. 23 (on P. 33), referred to. Malice in fact is quite a different thing: it means an actual malicious intention on the part of the person who has done the wrongful act, and it May be, in proceedings based on wrongs independent or contract, a very material ingredient in the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l before the court with a view to satisfy it about the validity of the detention by filing a good return. [299 C-D] Kishori Mohan v. State of West Bengal AIR 1974 SC 1749; king Emperor v. Sibnath Banerji 71 IA 241 and G. Sadanandan v. State of Kerala Anr., [1966] 3 SCR 590, referred to. [His Lordship did not express any opinion on the question of the validity of s 16A(9) of the Maintenance of Internal Security Act.[ 301-A] The appropriate occasion for the High Court to go into the constitutional validity of s. 16A(9) and external all judicial scrutiny in writs of habeas corpus would be when the State or a detenu whoever is aggrieved upon, comes in appeal against the final judgments in any of the petitions pending in the High courts. The whole matter would then be at large before the Supreme Court and it would not be inhibited by procedural or other constraints. It would not be permissible or proper for the Supreme Court to short circuit the whole thing and decide the matter by by-passing the High Courts who are seized of the matter. [302 F-G and 304 D-E] Section 18 of the Maintenance of Internal Security Act would not detract from the view that Art. 21 is not the sole r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 of 1976 should be avoided. [301 F-H] There is no sufficient ground to interfere with the view taken by all the nine High Courts which went into the matter that the Presidential order dated June 27, 1975, did not affect the maintainability of the habeas corpus petitions to question the legality of the detention orders. [304-C] The principles which should be followed by the courts in dealing with petitions for writs of habeas corpus to challenge the legality of detention are well-established. 1304-D] Unanimity obtained without sacrifice of conviction commends the decision to public confidence. Unanimity which is merely formal and which is recorded at the expense of strong conflicting views is not desirable in a court of last resort. [304-E] A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting Judge believes the court have been betrayed. [304-G] Prophets with Honor by Alan Barth 1974 Ed. p. 3-6. referred to. Observation: Judges are not there simply to decide cases, but to decide them as they think they should be decided, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatue which form the conditions precedent to the exercise of power under the status as distinguished from merely procedural provisions or are malafide or are not based on relevant materials by which the detaining authority could have been satisfied that the order of detention was necessary. The High Court s held that the, High Courts could not go into the questions whether the Proclamation of Emergency was justified or whether the continuance thereof was malafide. The High Courts did not decide about the validity of the 38th and the 39th Constitution Amendment Acts. The 38th Constitution Amendment Act amended Articles 123, 213, 239(b), 352, 356, 359 and 360. Broadly Stated the 38th Constitution Amendment Act renders the satisfaction of the President or the Governor in the relevant Articles final and conclusive and to be beyond any question in any Court on any ground. As for Article 359 clause (1A) has been inserted by the 38th Constitution Amendment Act. The 39th Constitution Amendment Act amended Articles 71, 329. 329(A) and added Entries after Entry 86 in the Ninth Schedule. No arguments were advanced on these Constitution Amendment Acts and nothing thereon falls for det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainable. Second if such a petition is maintainable what is the scope or extent of judicial scrutiny particularly in view of the Presidential order dated 27 June, 1975 mentioning, inter alia, Article 22 of the Constitution and also in view of sub section (9) of section 16A of the Act. The Attorney General contended that the object and purpose of emergency provisions is that the Constitution provides special powers to the Executive because at such times of emergency the considerations of state assume importance. It has been recognised that times of grave national emergency demand grant of special power to the Executive Emergency provisions contained in Part XVIII including Articles 358, 359(1) and 359(1A) are constitutional imperatives. The validity of law cannot be challenged on the ground of infringing a fundamental right mentioned in the Presidential Order under Article 359(1). Similarly, if the Executive take any action depriving a person of a fundamental right mentioned in the Presidential order any not complying with the law such Executive action cannot be challenged because such challenge would amount in substance to and would directly impinge on the enforcement of fundame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Executive can act to the prejudice of citizens only to the extent permitted by valid laws. The Proclamation of Emergency does not widen the Executive power of the state under Article 162 so as to empower the State to take any Executive action which it is not otherwise competent to take. Eighth, the right to arrest is conferred by the Act on the State and their officers only if the conditions laid down under section 3 of the Act are fulfilled. Therefore, if the conditions laid down under section 3 of the Act are not complied with by the detaining authority then the order of detention would be ultra vires the said Act. Ninth, Habeas corpus is a remedy not only for the enforcement of he right to personal liberty,, whether under natural law or a statute but is also a remedy for the enforcement of the principle of ultra vires viz., when the detaining authority has failed to comply with the conditions laid down in section 3 of the Act. In such a case the High Court has jurisdiction to issue a writ af haheas corpus for the enforcement of the principle of ultra vire.;. In England it was the practice in times of danger to the state to pass what were popularly known as Habeas Corpu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be controlled by the courts, if only because considerations of security forbade proof of the evidence upon which detention was ordered. It was sufficient for the Home Secretary to have a belief which in his mind was reasonable. The courts would not enquire into the grounds for his belief, although apparently they might examine positive evidence of mala fides or mistaken identity. In Greece s case (supra) the House of Lords held that a mistake on the part of the advisory committee in failing, as was required by the regulation, to give the appellant correct reasons for his detention did not invalid the detention order. It is noticeable how the same House expressed this view without any dissent. Dicey states that this increase in the power of the Executive is no trifle, but it falls far short of the process known in some foreign countries as suspending the constitutional guarantees or in France as the proclamation or a State of siege . Under the Act of 1881 the Irish executive obtained the absolute power of arbitrary and preventive arrest, and could without breach of law detain in prison any person arrested on suspicion for the whole period for which the Act continued in force. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw. The suspension does not legalise what is doing while it continues. It merely suspends or the time this particular remedy. All other remedies for illegal arrests remain, and may be pursued against the parties making or continuing them. Liberty is confined and controlled by law, whether common law or statute. It is in the words of Burke a regulated freedom. It is not an abstract or absolute freedom. The safeguard of liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved. If extraordinary powers are given, they are given because the emergency is extraordinary, and are limited to the period of the emergency. Unsuitability of a court of law for determining matters of discretionary policy was referred to by Lord Parker in the Zamora([1916] 2 A. C. 107) case and Lord Finlay in the Zadiq case (supra). In the Liversidge s case (supra) it was held that the. court is not merely an inappropriate tribunal, but one the jurisdiction of which is unworkable and even illusory in these cases. A court of law could not have before it the information on which the Secretary acts still less the background of statement and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce ? The first question turns on the depth and content of the Presidential order. The vital distinction between Article 358 and Article 359 is that Article 358 suspends the rights only under Article 19 to the extent that the Legislature can make laws contravening Article 19 during the operation of a Proclamation of Emergency and the Executive can take action which the Executive is competent to take under such laws. Article 358 does not suspend any fundamental right. While a Proclamation of Emergency is in operation the Presidential order under Article 359(1) can suspend the enforcement of any or all fundamental rights. Article 359(1) also suspends any pending proceedings for the enforcement of such fundamental right or rights. The purpose and object of Article 359(1) is that the enforcement of any fundamental right mentioned in the Presidential order is barred or it remains suspended during the emergency. Another important distinction between the two Articles is that Article 355 provides for indemnity where as Article 359(1) does not Article 359(1A) is on the same lines as Article 358 but Article 359(1A) now includes all fundamental rights which may be mentioned in a Presidentia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingh s case (supra) and Ram Manohar Lohia s case (supra)]. It is incorrect to say that the jurisdiction and powers of this Court under Article 32 and of the High Courts under Article 226 are virtually abolished by the Presidential order without any amendment of the Constitution. No amendment of the Constitution is necessary because no jurisdiction and power either of this Court or of the High Court is taken away. When a Presidential order takes away the locus standi of the detenus to move any court for the enforcement of fundamental rights for the time being the jurisdiction and powers of this Court and of the High Courts remain unaltered Article 359(1) is not directed against any court. It is directed against an individual and deprives him of his locus standi. The courts cannot either increase or curtail the freedom of individuals contrary to the provisions of the Constitution. The courts interpret the Constitution and the laws in accordance with law and judicial conscience and not emotion. It is wrong to say that the Executive has asked or directed any one not to comply with the conditions of the Act. The question is not whether the Executive should comply or should not com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections to any State as to manner in which the executive power thereof is to be exercised. The exercise of such executive power by the Union totally displaces the provisions of Article 162. Noncompliance with directions of the Union Executive under Article 353 by any State Executive may attract the provisions of Article 356 and the President s Rule may be imposed on that State. In such an event, Parliament may, under Article 357(1) confer on the President the power of the Legislature of that State to make laws or to delegate such legislative power to any other authority. In such a situation, the federal structure and representative Government on which the Constitution is based may be completely changed in the State or States concerned. Article 250 provides that during the operation of Proclamation of Emergency Parliament may make laws with respect to any of the matters enumerated in the State list. The Federal Structure and representative government may suffer its full place in that situation. On the expiry of the operation of the Presidential order under Article 359(1), the infringement of the fundamental rights mentioned in the order, either by the legislative enactment or by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Emergency issued under clause (1) of Article 352 on 26 October, 1962 is in force, if such a person has been deprived of any right under the Defence of India ordinance 1962 or of any rule or order made thereunder . the 1975 Presidential order under Article 359(1) does not have the words if such a person has been deprived of any such right under the Defence of India ordinance 1962 or any rule or order made thereunder . In other words, the 1962 Presidential order is limited to the condition of deprivation of rights under the Defence of India ordinance or any rule or order made thereunder whereas in the 1975 Presidential order no statute is mentioned. The illegality of orders was challenged in Makhan Singh s case (supra) in spite of the Presidential order under the 1962 Proclamation on the ground that the impeached orders are not in terms of the statute or they are made in abuse of law. The decisions of this Court in Mohan Chowdhury s and Makhan Singh s cases (supra) are that during the operation of a Proclamation of emergency no one has any locus standi to move any court for the enforcement of any fundamental rights mentioned in the Presidential Order. The ratio must necessarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Presidential order of 1962 and the present Presidential order. It is obvious that the Government fully conscious of the Presidential order of 1962 and its effect as determined by the decisions of this Court in Makhan Singh s case (supra) and subsequent cases deliberately made the present Presidential order an unconditional order under Article 359(1). Reference may be made to State of Maharashtra v. Prabhakar Pandurang Sangzgiri and Anr.( [1966] 1 S. C. R 702) which clearly pointed out that the Presidential order of 1962 was a conditional one and therefore if a person was deprived of his personal liberty not under the Act or rules and orders made thereunder but in contravention thereof, his right to move the courts in that regard would not be suspended The decision of this Court in Pandurang s case (supra) is by the Constitution Bench of five learned Judges, three of whom were on the Constitution Bench of seven learned Judges deciding Makhan Singh s case (supra). In Pandurang s case (supra) the ratio was that if a personal was deprived of his personal liberty not under the Act or rules and orders made thereunder but in contravention thereof, his right to move the courts in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly on the decision is Rustom Cavasjee Cooper v. Union of India (1) where it was said that the ruling in A. K. Gopalan v. the State of Madras([1950] 3 S. C. R. 88) that Articles 19 and 22 are mutually exclusive no longer holds the field. The respondents also rely on the decisions if Shombhu Nath Sankar v. The state of West Bengal Ors.( [1970] 3 S.C.R. 530), Haradhan Saha Anr. v. The State of West Bengal Ors.( [1975] 1 S. C. R. 778) and Khudiram Das v. The State of West Bengal Ors.( [1975] 2 S. C. R. 832) in support the proposition that these decisions followed the ruling in the Bank Nationalisation case (supra). The respondents contend that the Presidential order bars enforcement of rights under Articles 14, 19, 21 and 22 but it is open to the respondents to enforce violation of right under Article 20. The other reasons advanced by the respondents are dealt with hereinafter. The majority view in His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala([1973] Supp. S. C. R. 1) is that there are no natural rights. fundamental rights in our Constitution are interpreted to lie what is commonly said to be natural rights. The only right the life and liberty is enshri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in the Constitution. (See Bank Nationalisation case (supra) at p. 568). Similarly Article 21 is our Rule of Law regarding life and liberty. No other rule of law can have separate existence as a distinct right. The negative language of fundamental right incorporated in Part III imposes limitations on the power of the State and declares the corresponding guarantee of the individual to that fundamental right. The limitation and guarantee are complementary. The limitation of State action embodied in a fundamental right couched in negative form is the measure of the protection of the individual. Personal liberty in Article 21 includes all varieties of rights which go to make personal liberty other than those in Article 19(1)(d). (see Kharak Singh v. State of U.P. Ors.([1964] 1 S. C. R. 332). The Bank Nationalisation case (supra) merely brings in the concept of reasonable restriction in the law. In the present appeals, the Act is not challenged nor can it be challenged by reason of Article 358 and Article 359(1A) and the Presidential order mentioning Article 19 as well. If any right existed before the commencement of the Constitution and the same right with its same content is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of section 491 of the Criminal Procedure Code have been repealed recently as being superfluous in view of Article 226. (See 41st Report of Law Commission of India (Vol.1) p. 307). The present appeals arise from petitions filed in High Courts for writs in the nature of habeas corpus. The statutory right to remedy in the nature of habeas corpus under section 491 of the Criminal Procedure Code cannot be exercised now in view of the repeal of that section. Even if the section existed today it could not be exercised as a separate right distinct from the fundamental right, the enforcement of which is suspended by the Presidential order as was held by this Court in Makhan Singh case (supra) at pp. 818-825. There was no statutory right to enforce the right to personal liberty other than that in section 491 of the Criminal Procedure Code before the commencement of the Constitution which could be carried over after its commencement under Article 372. Law means enacted law or statute law. (See A. K. Gopalan s case (supra) at pp. 112, 199, 276, 277, 288, 307, 308, 309, 321, 322). It follows that law in Article 21 will include all post-constitutional statute law including the Act i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Article 20 states that no person shall be prosecuted and published for the same offence more than once. The present appeals do not touch any aspect of Article 20. The reason why reference is made at this stage to Article 20 is to show that Article 20 is a constitutional mandate to the Judiciary and Article 21 is a constitutional mandate to the Executive. The respondents contend that State in Article 12 will also include the Judiciary and Article 20 is enforceable against the Judiciary in respect of illegal orders. The answer is that Article 20 is a prohibition against the Judiciary in the cases contemplated there. If a person is detained after the Judiciary acts contrary to the provision, in Article 20 such detention cannot be enforced against the Judicially. In the event of the Judiciary acting contrary to the provisions in Article 20 such, detention can be challenged by moving the court against the Executive for wrongful detention or conviction or punishment as the case may be. The expression No person shall be prosecuted for the same offence more than once in Article 20 would apply only to the Executive The decision in Makhan Singh s case (supra) is that fundamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right which is recognised by the decree but on the decree itself. This right arising from a decree is not a fundamental right, and, therefore, will not be prima facie covered by a Presidential order under Article 359(1). The other examples given by the respondents are seizure of property by Government, requisition by Government contrary to Articles 31 and 19(1) (f). If any seizure of property is illegal or in acquisition or requisition is challenged it will depend upon the Presidential order to find out whether the proceedings are for the enforcement of fundamental rights covered by the Presidential Order Fundamental rights including the right to personal liberty are enforced by the Constitution. Any pre- Constitutional rights which are included in Article 21 do not after the Constitution remain in existence which can be enforced if Article 21 is suspended. If it be assumed that there was any pre-constitutional right to personal liberty included in Article 21 which continued to exist as a distinct and separate right then Article 359(1) will be an exercise in futility. In Makhan Singh s case (supra) there was not suggestion that apart from Article 21 there was any common law or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the Act. Here again, the detenu cannot enforce any statutory right under the Act for the same reason that it will amount to enforce his fundamental right to personal liberty by contending that the Executive is depriving him of his personal liberty not according to procedure established by law . Similarly, the example given of an illegal detention of a person by a Police officer will be met with the same plea. An argument was advanced on behalf of the respondents that if n pre-existing law is merged in Article 21 there will be conflict with Article 372. The expression law in force in Article 372 cannot include laws which are incorporated in the Constitution viz., in Part III. The expression law in Articles 19(1) and 21 takes in statute law. The respondents contended that permanent law cannot be repealed by temporary law. The argument is irrelevant and misplaced. The Presidential order under Article 359(1) is not a law. The order does not real any law either. The suggestion that Article 21 was intended to afford protection to life and personal liberty against violation lay private individuals was rejected in Shamdasani s case (supra) because there cannot be any questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overrides the Presidential Order. The Presidential Order does not alter or suspended any law. The Rule of law is not a mere catchword or incantation. Rule of Law is not a law of nature consistent and invariable at all times and in all circumstances. The certainly of law is one of the elements in the concept of the Rule of law but it is only one element and taken by itself, affords little guidance. The essential feature if Rule of law is that the judicial power of the state is to a large extent, separate from the Executive and the Legislature. The Rule of Law us a normative as much as it is a descriptive term. It expresses an ideal as much as a juristic fact. The Rule of Law is nit identical with a free society. If the sphere of the Rule of Law involves what can be called the Existence of the Democratic system it means two things. In the first place the individual liberties of a democratic system involves the right of the members of each society to choose the Government under the which they lie. In the second place come freedom of speech, freedom of assembly and freedom f association. These are not absolute tights, Their exceptions are justified by the necessity if reconciling the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bharat Singh s case (supra) is this: Executive action which operates to the prejudice of any person must have the authority of law to support it. [See also Ram Jawaya Kapur s case (supra). The provisions of Article 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or Executive action provided such action was competent for the State to make or take but for the provisions contained in Part III of our Constitution. Article 358 permits an Executive action under a law which may violate Article 19 but if the law is void or if there be no law at all, the Executive action will not be protected by Article 358. Bharat Singh s case (supra) considers the effect of Article 358 so far the Executive action is concerned, but was not concerned with any Executive action taken infringing any fundamental right mentioned in a Presidential order under Article 359 (1) . Ibrahim s case (supra), the Bannett Coleman case (supra) and the Meenakshi Mill s case (supra) follow Bharat Singh s case (supra) regarding the proposition that the terms of Article 358 do not detract from the position that the Executive cannot act to the prejudice of a person witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution, nor can there be any invocation to any rule of law to nullify the constitutional provisions during the times of emergency. The respondents relied on the decision in Eshugbayi Eleko v. officer Administering the Government of Nigeria ([1931] A. C. 662) support of the proposition that Rule of Law will always apply even when there is Presidential order. It has to be realised that the decision in Eshuqbavi Eleko cannot overreach our Constitution. Article 358 does not permit the Executive action to have the authority of law. Article 359 prevents the enforcement of the fundamental rights mentioned in the Presidential order. It bars enforcement against any legislation or executive! action violating a fundamental right mentioned in the Presidential order. The principle in Eshugbayi Eleko s case (supra) will not apply where Article 359 is the paramount and supreme law of the country. There is no question of amendment of the concept of rule of law or any suggestion of destruction of rule of law as the respondents con tended because the Presidential order under Article 359 neither nullifies nor suspends the operation of any law. The consequence of the Presidential order is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or purported to be made under section 3 shall have any right to personal liberty by virtue of natural law or common law, if any. It has been earlier held that there is no natural law or common law right to habeas corpus. The respondents rely on the decisions in Poona Municipal Corporation v. D. N. Deodher([1964] 8 S. C. R. 178), Kala Bhandar v. Munc. Committee([1965] 3 S. C. R. 499), Indore Municipality v. Niyamatulla(A. I. R. 1971 S. C. 97) and Joseph v. Joseph([1966] 3 All. E. R. 486) in support of the proposition that the expression purports means has the effect of . The respondents contend that Section 18 of the Act can apply only when a valid order of detention is made. If the section be interpreted to include malafide orders or orders without jurisdiction then it is said that such interpretation will prevail upon the judicial power and violate Article 226. The expression purported to be done occurs is section 80 of the Code of Civil Procedure. The expression purported to be made under section 3 of the Act in section 18 will include an executive act made by the District Magistrate within the scope of his authority as District Magistrate, even if the order is made in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of grounds will not affect the jurisdiction of the Court. It is said by the respondents that the scope of judicial scrutiny is against orders. The respondents submit that court has gone behind the orders of detention in large number of cases. The respondents submit as follows: It is open to the Court to judge the legality of the orders. This the Court can do by going beyond the order. Though satisfaction is recorded in the order and such recording of satisfaction raises the presumption of legality of order the initial onus on a detenu is only to the extent of creating disquieting doubts in the mind of the Court. The doubts are that the orders are based on irrelevant non-existing facts or on facts on which no reasonable person could be satisfied in respect of matters set out in section 3 of the Act. If such a prima facie case is established the burden shifts and the detaining authority must satisfy the court about the legality of detention and the detaining authority must remove doubts on all aspects of legality which have been put in issue. If the detaining authority for whatever reasons ] fails to satisfy the court either by not filing an affidavit or not placing such facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said by the Additional Solicitor General that if the grounds are furnished or are required to be furnished the Court can examine whether such grounds ex-facie justify reasonable apprehension of the detaining authority. Where the grounds are not to be furnished, it is said that this enquiry does not arise. The Additional Solicitor General submits that judicial scrutiny cannot extend to three matters-first, objective appraisal of the essential subjective satisfaction of the detaining authority, second, examination of the material and information before the detaining authority for the purpose of testing the satisfaction of the authority, and, third, directing compulsory production of the file relating to detenu or drawing and adverse inference from the non-production thereof. Material and information on which orders of preventive detention are passed necessarily belong to a class of documents whose disclosure would impair the proper functioning of public service and administration. The file relating to a detention order must contain intelligence reports and like information whose confidentiality is beyond reasonable question. This was the view taken in the Live sidge ([1942 1 A. C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . C. R. 167.), Shibban Lal Saksena v. The State of Uttar Pradesh Ors([1954] S. C. R. 418)., Rarneshwar Shaw v. District Magistrate, Burdwan Anr.,( [1964] 4 S. C. R. 921) Jaichand Lal v. W. Bengal ([1966] Supp. S. C. R. 464) and Ram Manohar Lohia s case (supra). The theory of good return mentioned in the English decisions is based on the language of Habeas Corups Act and the Rules of the Supreme Court of England. The practice of our Court is different. The respondents relied on M. M. Damnoo v. J. K. State ([1972] 2 S. C. R. 1014) in support of the proposition that the file was produced there and also contended that section 16A(9) can be struck down as happened in A. K. Gopalan s case (supra) where section 14 of the Preventive Detention Act was struck down. When A. K. Gopalan s case (supra) was decided Article 22 was in force. Prevention of court from on seeing the grounds contravened Article 22. There was no question of privilege. Section 14 of the Preventive Detention Act in A. K. Gopalan s case (supra) offended Article 22. (See A. K. Gopalan s case 1950 S. C. R. 88 at 130, 217, 242, 283-84, 332-33). In Damnoo s case (supra) there was no question of privilage. The f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the court cannot give any relief on that basis the contention of malafides is not only ineffective but also untenable. (See Lawrence Joachim Joesph D Souza v. The State of Bombay ([1956] S. C. R. 382 at 392-93). The provision for periodical review entrusted to the Government under section 16A(4) of the Act in the context of emergency provides a sufficient safeguard against the misuse of power of detention or arbitrary malafide detention during the emergency. The Government is in full possession of the grounds, materials and information relating to the individual detentions while exercising the power of review. The jurisdiction of the court in times of emergency in respect of detention under the Act is restricted by the Act because the Government is entrusted with the task of periodical review. Even if the generality of the words used in section 3(1) of the Act may not be taken to show an intention to depart from the principle in ordinary times that the courts arc not deprived of the jurisdiction where bad faith is involved, there are ample indications in the provisions of the Act, viz., section 16A(2), proviso to section 16A(3), section 16A(4), section 16A(5), section 16A(7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 3 of the Act is to be adjudged in the context of the emergency proclaimed by the President. The Court cannot compel the detaining authority to give the particulars of the grounds on which he had reasonable cause to believe that it was necessary to exercise this control. An investigation into facts or allegations of facts based on malafides is not permissible because such a course will involve advertence to the grounds of detention and materials constituting those grounds which is not competent in the context of the emergency. For the foregoing reasons the conclusions are as follows:- First. In view of the Presidential order dated 27 June, 1975 under clause (1) of Article 359 of our Constitution no person has locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to enforce any right to personal liberty of a person detained under the Act on the grounds that the order of detention or the continued detention is for any reason not under or in compliance with the Act or is illegal or malafide. Second. Article 21 is the sole repository of rights to life and personal liberty against the State. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against community s need for security against internal and external peril. It is with a view to balancing the conflicting viewpoints that the framers of the Constitution made express provisions for preventive detention and at the same time inserted safeguards to prevent abuse of those powers and to mitigate the rigour and harshness of those provisions. The dilemma which faced the Constitution-makers in balancing the two conflicting viewpoints relating to liberty of the subject and the Security of the State was not, however, laid to rest for good with the drafting of the Constitution. It has presented itself to this Court in one form or the other ever since the Constitution came into force. A. K . Gopalan s([1950] S.C.R. 88) was he first case where in a Bench of six Judges of this Court dealt with the matter. Another Bench of seven Judges again dealt with the matter in 1973 in the case of Shambhu Nath Sarkar v. State of West Bengal Ors ([1974] 1 S. C. R. 1) In between a number of Benches have dealt with the various facets of the question one such facet has now presented itself to this Constitution Bench The question posed before us is whether in view of the Presidential orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strates specially empowered in this behalf by the State Government, (c)Commissioners of Police, wherever they have been appointed, may, if satisfied as provided in sub-clauses (ii) and (iii) of clause (a) of sub-section (1) exercise the power conferred by the said sub-section. (3) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been, made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making there of unless in the meantime it has been approved by the State Government: Provided that where under section 8 the grounds of detention are communicated by the authority making the order after five days but not later than fifteen days from the dates of detention, this sub-section shall apply subject to the modification that for the words twelve days , the words twenty-two days shall be substituted. (4) When any order is made or approved by the State Government under this section, the State Government sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal aggression. V. V. Giri President Clause (1) of article 359 of the Constitution reads as under: Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. On November 16, 1974 the President of India made the following order: In exercise of the powers conferred by clause (1) of article 359 of the Constitution, the President hereby declares that- (a) the right to move any count with respect to orders of detention which have already been made or which may hereafter be made under section 3 (1) (c) of the Maintenance of Internal Security Act, 1971 as amended by ordinance 11 of 1974 for the enforcement of the rights conferred by article 14, article 21 and clauses (4), (5), (6) and (7) of article 22 of the Constitution, and (b) all proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6A was introduced in MISA with effect from June 29, 1975 and the same reads as under : 16A. (1) Notwithstanding anything contained in this Act or any rules of natural justice, the provisions of this section shall have effect during the period of operation of the Proclamation of Emergency issued under clause (1) of article 352 of the Constitution on the 3rd day of December, 1971 or the Proclamation of Emergency issued under that clause on the 25th day of June, 1975, or a period of twelve months from the 25th day of June, 1975, whichever period is the shortest. (2) The case of every person (including a foreigner) against whom an order of detention was made under this Act on or after the 25th day of June, 1975, but before the commencement of this section, shall, unless such person is sooner related from detention, be reviewed within fifteen days from such commencement by the appropriate Government for the purpose of determining whether the detention of such person under this Act is necessary for dealing effectively with the emergency in respect of which the Proclamations referred to in sub-section (1) have been issued hereinafter in this section referred to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson detained under a detention order to which the provisions of sub-section (2)S apply, being a person the review of whose case is pending under that sub-section or inrespect of whom a declaration has been made under that sub-section.- (1) section 8 to 12 shall not apply; and (ii) section 13 shall apply subject to the modification that the words and figures which has been confirmed under section 12 shall be omitted. (7) In the case of every person detained under a detention order to which the provisions of sub-section (3) apply being a person in respect of whom a declaration has been made under that sub-section,- (1) section 3 shall apply subject to the modification that for sub-sections (3) and (4) thereof, the following sub-section shall be substituted, namely:- (3) when order of detention is made by a State Government or by an officer subordinate to it, the State Government shall, within twenty days, forward to the Central Government a report in respect of the order; (ii) section 8 to 12 shall not apply; and (iii) section 13 shall apply subject to the modification that the words and figures which has been confirmed under section 12 shall be omitted. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 16A of MISA and the same read as under: (a) for sub-section (5), the following sub-section shall be substituted, namely:- (5) In making any review, consideration or reconsideration under sub-section (2), sub-section (3) or sub section (4), the appropriate Government or officer may act on the basis of the information and materials in its or his possession without communicating or disclosing any such information or materials to the person concerned or affording him any opportunity of making any representation against the making under subsection (2), or the making or confirming under subsection (3), or the non-revocation under sub-section (4), of the declaration in respect of him. ; (b) in sub-section (7), in clause (1),- (1) in the opening portion, for the words the following sub-section , the words the following shall be substituted; (ii) in sub-section (3), as substituted by that clause, for the words forward to the Central Government a report in respect of the order , the words report the fact to the Central Government shall be substituted; (iii)after sub-section (3) aforesaid, the following shall be inserted, namely:- (4) At any time after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and twenty days in subsection (3) of section 3 of MISA were substituted by the words twenty days and twentyfive days respectively. In section 14 of the principal Act following sub-section was substituted for the original sub-section: (2) The expiry or revocation of a detention order (hereafter in this sub-section referred to as the earlier detention order) shall not bar the making of another detention order (hereafter in this sub-section referred to as the subsequent detention order) under section 3 against the same person: Provided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person, may be detained in pursuance of the subsequent detention order shall, in no case, extend beyond a period of twelve months from the date of detention under the earlier detention order or until the expiry of the Defence and Internal Security of India Act, 1971, whichever is later. Following sub-section (2A) was also inserted in section 16A of the principal Act: (2A) If the State Government makes a declaration under sub-section (2) tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terials in its or his possession without communicating or disclosing any such information or materials to the person concerned or affording him any opportunity of making any representation against the making under sub-section (2), or the making or confirming under sub-section (3), or the non-revocation under sub-section (4), of the declaration in respect of him.,; (c) in sub-section (7), in clause (1),- (1) in the opening portion, for the words the following sub-section , the words the following shall be substituted and shall be deemed to have been substituted with effect from the 29th day of June, 1975; (ii) in sub-section (3), as substituted by that clause, for the words forward to the Central Government a report in respect of the order , the words report the fact to the Central Government shall be substituted, E; and shall be deemed to have been substituted with effect from the 29th day of June, 1975; (iii)after sub-section (3) aforesaid, the following shall be inserted. and shall be deemed to have been inserted with effect from the 17th day of October, 1975 namely:- (4) At any time after the receipt of a report under sub-section (3), the Central G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 3 shall be substituted, and shall be deemed to have been substituted with effect from the 25th day of June, 1975. 6. Any act or thing done or purporting to have been done; before the 16th day of November, 1975, under the principal Act in respect of any person against whom an order of detention was made under that Act on or after the 25th day of June, 1975 or in respect of any such order of detention shall, for all purposes, be deemed to be as valid and effective as if the amendments made to the principal Act by sections 2 and 3, and clause (a) of section 4, of this Act had been in force at all material times. During the pendency of these petitions under article 226 of the Constitution of India before the High Courts for issue of writs of habeas corpus, it was contended on behalf of the Union of India and the States that in view of the Presidential order dated June 27, 1975 under article 359 suspending the right of all persons to move any court for the enforcement of the rights conferred by articles 14 21 and 22 of the Constitution, petitions for issue of writs of habeas corpus were not maintainable. Particular stress was laid upon the fact that the right to move t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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, 196 (4 of 1962) or any rule or order made thereunder. on November 6, 1962, the rules framed under the ordinance by the Central Government were published. On November 11, 1962 the Presidential order reproduced above was amended and for the words and figure article 21 , the words and figures articles 14 and 21 were substituted. The Defence of India ordinance was subsequently replaced by the Defence of India Act and the rules framed under the ordinance were deemed to have been framed under the Act. Perusal of the above Presidential order of 1962 shows that what was suspended was the right of any person to move any court for the enforcement of rights conferred by articles 14, 21 and 22. The suspension was, however, conditioned by the circumstance that such person had been deprived of such rights under the Defence of India Act or any rule or order made thereunder. It was plain that in case a detention order was made or any other action was taken not under the provisions of the Defence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights specified in the order, his right to move any court in that behalf is not suspended, because it is outside Art. 359(1) and consequently outside the Presidential order itself. Let us take a case where a detenu has been detained in violation of the mandatory provisions of the Act. In such a case, it may be open to the detenu to contend that his detention is illegal for the reason that the mandatory provision of the Act have been contravened. Such a plea is outside Art. 359(1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential order. Take also a case where the detenu moves the Court for a writ of habeas corpus on the ground that his detention i has been ordered malafide. It is hardly necessary to ; emphasise that the exercise of a power malafide is wholly outside the scope of the Act conferring the power and can ; always be successfully challenged. It is true that a mere allegation that the detention is malafide would not be enough; the detenu will have to prove the malafides. But if the malafides are alleged, the detenu cannot be precluded from substantiating his plea on the ground of the bar created by Art. 359(1) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the Defence of India Rules where under he was detained. If it was in contravention of the said Rules he would have the right to approach the High Court under Art. 226 of the Constitution. Similar view was expressed in the case of Dr. Ram Manohar Lohia v. State of Bihar Ors.( [1966] 1 S. C. R. 709) Sarkar J. (as be then was) in that case observed that where a person was detained in violation OF the mandatory provisions of the Defence of India Act, his right to move the court was not suspended. Hidayatullah and Bachawat JJ. referred to the fact that the Presidential order did not say that even if a person was proceeded against in breach of the Defence of India Act or the rules, he could not move the court or complain that the Act and the Rules under colour of which some action was taken did not warrant it. The Presidential order was held to have not intended to condone an illegitimate enforcement of the Defence of India Act. Raghubar Dayal J. held that the Court could go into the question as to whether the District Magistrate exercised the power of detention under the Defence of India Rules bonafide and in accordance with the rules. Mudholkar J. Observed that if a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der specified provisions, cannot now be relied upon while construing the ambit of the Presidential order of June 27, 1975. The difference in phraseology of the Presidential order dated June 27, 1975 and that of the earlier Presidential orders would not, however, justify the conclusion that because of the new Presidential order dated June 27, 1975 a detention order need not comply with the requirements of the law providing for preventive detention. Such a detention order would still be liable to be challenged in a court on the ground that it does not comply with the requirement of law for preventive detention if ground for such challenge be permissible in spite of and consistently with the new Presidential order. The effect of the change in phraseology would only be that such of the observations which were made in the cases mentioned above in the context of the language of the earlier Presidential orders cannot now be relied upon. Reliance, however, can still be placed upon the observations made in those cases which were not linked with the phraseology of the earlier Presidential orders. Question then arises as to what is the effect of the suspension of the right of a person t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own as Statute of Westminster of the liberties of London that the expression due process of law appears to have been used for the first time. Neither of the expressions due process of law or law of the land was explained or defined in any of the documents, but on the authority of Sir Edward Coke it may be said that both the expressions have the same meaning. In substance, they guaranteed that persons should not be imprisoned without proper indictment and trial by peers, and that property should not be seized except in proceedings conducted in due form in which the owner or the person in possession should have an opportunity to show cause why seizure should not be made. The expression due process of law came to be a part of the US Constitution by the Fifth Amendment which was adopted in 1791 and which provided that no person shall be deprived of life, liberty or property without due process of law. A Similar expression was used in the Fourteenth Amendment in 1868. It has been said that few phrases in the law are so elusive of exact apprehension as due process of law. The United States Supreme Court has always declined to give a comprehensive definition of it and has pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et of circumstances. The requirement of due process clause as a substantial restriction on Government control is also now becoming a thing of the past and the rule is being restricted more and more to its original procedural aspect (see observations of Mukherjea J. in the case of A. K. Gopalan, (supra). At the time the Constitution was being drafted, the Constitutional Adviser Mr. B. N. Rau had discussions with US Constitutional experts some of whom expressed the opinion that power of review implied in due process clause was not only undemocratic because it gave the power of vetoing legislation to the judges, but also threw an unfair burden on the judiciary. This view was communicated by Mr. Rau to the Drafting Committee which thereupon substituted the words except according to procedure established by law for words due process, of law. In dropping the words due process of law, the framers of our Constitution prevented the introduction of elements of vagueness, uncertainty and changeability which had grown round the due process doctrine in the United States. The words except according to procedure established by law were taken from article 31 of the Japanese Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inalienable rights are life, liberty, and the pursuit of happiness. The Second Amendment to the US Constitution refers inter alia to security of person, while the Fifth Amendment prohibits inter alia deprivation of life and liberty without due process of law. The different Declarations of Human Rights and fundamental freedoms have all laid stress upon the sanctity of life and liberty. They have also given expression in varying words to the principle that no one shall be deprived of his life or liberty without the authority of law. The International Commission of Jurists, which is affiliated to Unesco, has been attempting with considerable success to give material content to the Rule of Law, an expression used in the Universal Declaration of Human Rights. One of its most notable achievements was the Declaration of Delhi, 1959. This resulted from a Congress held in New Delhi attended by jurists from more than 50 countries, and was based on a questionnaire circulated to 75,000 lawyers. Respect for the supreme value of human personality was stated to be the basis of all law (see page 21 of the Constitutional and Administrative Law by o. Hood Phillips, 3rd Ed. Freedom under law, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... norm of all civilised societies. Even if there have been deviations from the rule of law, such deviations have been covert and disguised for no government in a civilized country is prepared to accept the ignominy of governing without the rule of law. As observed on page 77 of Constitutional Law by Wade and Phillips, 8th Ed., the rule of law has come to be regarded as the mark of a free society. Admittedly its content is different in different countries, nor is it to be secured exclusively through the ordinary courts. But everywhere it is identified with the liberty of the individual. It seeks to maintain a balance between the opposing notions of individual liberty and public order. In every State the problem arises of reconciling human rights with the requirements of public interest. Such harmonising can only be attained by the existence of independent courts which can hold the balance between citizen and State and compel Governments to conform to the law. Sanctity of life and liberty was not something new when the Consitution was drafted. It represented a fact of higher values which mankind began to cherish in its evolution from a state of tooth and claw to a civilized existen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther individuals (see Rule of Law, page 6). To quote further from Professor Macdonald: It is clear enough that high echelon administrators are understandably impatient with the restraints imposed upon them by the traditional concept of the rule of law as developed by Dicey. Administrators deal with the implementation of highly technical and complex matters involving the immediate interests of many citizens, To accomplish this they are granted wide discretion in the use of administrative power to effectuate broad policies laid down by the legislators. It is natural that they should desire to have the conflicts which arise as the result of the exercise of their discretion adjudicated by tribunals composed of experts acquainted with the details of the matters at issue, rather than by judges trained only in the law. Hence their resistance to judicial review of administrative findings of fact as opposed to findings of law . The very things which a court of law prizes-rules of evidence, common law procedures, even due process-frequently appear to the administrators as obscurantist devices employed by those who oppose the very principle of the policy he is attempting to effectuate. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missible for the State to deprive a person of his life or liberty without the authority of law. No case has been cited before us to show that before the coming into force of the Constitution or in countries under rule of law where there is no provision corresponding to article 21, a claim was ever sustained by the courts that the State can deprive a person of his life or liberty without the authority of law. In fact, any suggestion to such a claim was unequivocally repelled. In the case of James Sommersett([1772], 16 Cr. Pract. 289) Lord Mansfield dealt with a case of a negro named Sommersett, who was being taken in a ship to Jamaica for sale in a slave market. When the ships anchored at London port, a habeas corpus petition was presented by some Englishmen who were moved by the yelling and cries of Sommersett. In opposition to the petition the slave trader took the plea that there was no law which prohibited slavery. Lord d Mansfield while repelling this objection made the following observation in respect of slavery which is one of the worst forms of deprivation of personal freedom: It is so odious that nothing can be suffered to support it but positive law: whatever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Such right existed before the Constitution came into force. The fact that the framers of the Constitution made an aspect of such right a part of the fundamental rights did not have the effect of exterminating the independent identity of such right and of making article 21 to be the sole repository of that right. Its real effect was to ensure that a law under which a person can be deprived of his life or personal liberty should prescribe a procedure for such deprivation or, according to the dictum laid down by Mukherjea, J. in Gopalan s case, such law should be a valid law not violative of fundamental rights guaranteed by Part III of the Constitution. Recognition as fundamental right of one aspect of the pre-Constitutional right cannot have the effect of making things less favourable so far as the sanctity of life and personal liberty is concerned compared to the position if an aspect of such right had not been recognised as fundamental right because of the vulnerability of fundamental rights accruing from article 359. I am also unable to agree that in view of the Presidential order in the matter of sanctity of life and liberty, things would be worse off compared to the state of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. It is for that reason that courts have insisted upon the authority of law for a public servant to take away someone s life or liberty. An executioner carrying out the sentence of death imposed by the court would not commit the offence of homicide, because he is executing the condemned man in obedience to a warrant issued by a court having jurisdiction in accordance with the law of the land. Likewise, a jailor confining a person sentenced to imprisonment is not guilty of the offence of wrongful confinement. The principle that no one shall be deprived of his life or liberty without the authority of law stems not merely from the basic assumption in every civilised society governed by the rule of law of the sanctity of life and liberty, it flows equally from the fact that under our penal laws no one is empowered to deprive a person of his life or liberty without the authority of law. The fact that penal laws of India answer to the description of the word law , which has been used in article 21 would not militate against the inference that article 21 is not the sole repository of the right to life or personal liberty and that the principle that no one shall be deprived of his lif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difficult to accede to the contention that because of article 21 of the Constitution, the law which was already in force that no one could be deprived of his life or liberty without the authority of law was obliterated and ceased to remain in force. No rule of construction interpretation warrants such an inference. Section 491 of the Code of Criminal Procedure continued to remain an integral part of that Code despite the fact that the High Courts were vested with the power of issuing writs of habeas corpus under article 226. No submission was ever advanced on the score that the said provision had become a dead letter of unforceable because of the fact that article 226 was made a part of the Constitution. Indeed, in the case of Malkha Singh (supra) Gajendragadkar J. speaking for the majority stated that after the coming into force of the Constitution, a party could avail of either the remedy of section 491 of the Code of Criminal Procedure or that of article 226 of the Constitution. The above observations clearly go to show that constitutional recognition of the remedy of writ of habeas corpus did not obliterate or abrogate the statutory remedy of writ of habeas corpus. Section 491 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority to detain a person on any ground whatsoever. l agree with the learned Attorney General that if we are to accept his argument about the scope of the Presidential order of June 27, 1975, in that event we have to accept it in its entirety and go the whole hog; there is no half way house in between. So let us examine the consequences of the acceptance of the above argument. This would mean that if any official, even a head constable of police, capriciously or maliciously, arrests a person and detains him indefinitely without any authority of law, the aggrieved person would not be able to seek any relief from the courts against such detention during the period of emergency. This would also mean that it would not be necessary to enact any law on the subject and even in the absence of any such law, if any official for reasons which have nothing to do with the security of State or maintenance of public order, but because of personal animosity, arrests and puts behind the bar any person or a whole group or family of persons, the aggrieved person or persons would not be able to seek any redress from a court of law. The same would be the position in case of threat of deprivation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the courts would give effect to municipal law. If, however, two constructions of the municipal law are possible, the courts should lean in favour of adopting such construction as would make the provisions of the municipal law to be in harmony with the inter national law or treaty obligations. Every statute, according to this rule, is interpreted, so far as its language permits, so as not to be inconsistent with the committee of nations or the established rules of international law, and the court will avoid a construction which would give rise to such inconsistency unless compelled to adopt it by plain and unambiguous language. But if the language of the statute is clear, it must be followed notwithstanding the conflict between municipal and international law which results (see page 183 of Maxwell on the Interpretation of Statutes, Twelfth Edition.) As observed by Oippenheim s International law, although municipal courts must apply Municipal Law even if it conflicts with the Law of Nations, there is a presumption against the existence of such a conflict. As the Law of Nations is based upon the common consent of the different States, it is improbable that an enlightened State would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution or by law. ARTICLE 9 No one shall be subjected to arbitrary arrest, detention or exile. While dealing with the Presidential order under article 359(1), we should adopt such a construction as would, if possible, not bring it in conflict with the above articles 8 and 9. From what has been discussed elsewhere, it is plain that such a construction is not only possible, it is also preeminently reasonable. The Presidential order, therefore, should be so construed as not to warrant arbitrary arrest or to bar right to an effective remedy by competent national tribunals for acts violating basic right of personal liberty granted by law. It has been argued that suspending the right of a person to move any court for the enforcement of right to life and personal liberty is done under a constitutional provision and therefore it cannot be said that the resulting situation would mean the absence of the rule of law. This argument, in my opinion, cannot stand close scrutiny for it tries to equate illusion of the rule of law with the reality of rule of law. Supposing a law is made that in the matter of the protection of life and liberty, the administrative officers would not be g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutional declarations in securing the rights of the individual against encroachment by the State (see Law in a Changing Society by Friedmann, 2nd Ed., page 501). One of the essential attributes of the rule of law is that executive action to the prejudice of or detrimental to the right of an individual must have the sanction of some law. This principle has now been well settled in a chain of authorities of this Court. In the case of Rai Sahib Ram Jawaya Kapur Ors. v. The State of Punjab ([1955] 2 S. C. R. 225) Mukherjea C.J. speaking for the Constitution Bench of this Court observed: Specific legislation may indeed be necessary if the Government require certain powers in addition to what they possess under ordinary law, in order to carry on the particular trade or business. Thus when it is necessary to encroach upon private rights in order to enable the Government to carry on their business a specific legislation sanctioning such course would have to be passed. The above attribute of the rule of law has been specially high lighted in the decision of this Court in the case of State of Madhya Pradesh Anr. v. Thakur Bharat Singh([1967] 2 S. C. R. 454) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be conducted in accordance with the will of the majority of the people. The people govern themselves through their representatives, whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people; (2) There is distribution of powers between the three organs of the State-legislative, executive and judicial each organ having some check direct or indirect on the other: and (3) the rule of law which includes judicial review of arbitrary executive actions. As pointed out by Dicey in his Introduction to the study of the Law of the Constitution , 10th Edn., at P. 202 the expression rule of law has three meanings, or may be regarded from three different points of view. It means in the first place, the absolute supremacy or predominance of regular law as opposed to the HE influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative or even of wide discretionay authority on the part of government. At p. 188 Dicey points out: In almost every continental community the executive exercises far wider discretionary authority in the matter of arrest, of temporary imprisonment, of exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Bennett Coleman Co. ors. v Union of India([1973] 2 S. C. R. 757) Ray J. (as he then was) speaking for the majority of the Constitution Bench relied upon Thakur Bharat Singh and M/s Ibrahim Co. cases (supra) and observed: Executive action which is unconstitutional is not immune during the proclamation of emergency. During the proclamation of emergency Article 19 is suspended. But it would not authorise the taking of detrimental executive action during the emergency affecting the fundamental rights in Article 19 without any legislative authority or in purported exercise of power conferred by any per-emergency law which was invalid when enacted. In Shree Meenakshi Mills Ltd. v. Union of India ([1974] 2 S. C. R. 398) this Court dealt with petitions challenging the validity of the fixation of price of cotton yarns under an executive order. Objection was raised to the maintainability of the petitions on the score of proclamation of emergency. This objection was repelled and reliance was placed on the decision of the Court in the case of Bennett Coleman Co. In Naraindas lndurkhya v. The State of Madhya Pradesh (A. I. R. 1974 S. C. 1232) the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey- Law of the Constitution Tenth Edn., Introduction ex). Law has reached its finest moments , stated Douglas, J. in United States v. Wunderlick (342 U. S. 98), when it has freed man from the unlimited discretion of some ruler .... Where discretion is absolute, man has always suffered . It is in this sense that the rule of law may be said to be sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes ((1770) 4 Burr. 2528 at 2539), means sound discretion guided by law. It must be governed by rule, not by humour: It must not be arbitrary, value and fanciful. In the case of Shrimati Indira Nehru Gandhi v. Shri Raj Narain ([19761 2 S. C. R. 347) both Ray CJ. and Chandrachud J. laid stress on the rule of law in our constitutional scheme. It would not, in my opinion, be correct to consider rule of law as a vague or nebulous concept because of its description as an unruly horse by Ivor Jennings. Indeed, according to Jennings, the rule of law demands in the first place that the powers of the Executive should n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actions from being challenged on the ground of being violative of article 19 during the period of emergency. If the existence of article 358 did not have the effect of dispensing with the necessity for an executive action operating to the prejudice of tile right of a citizen of the authority of law, the same must necessarily be the position after the insertion of clause (1A) in article 359. It is significant that the language of clause (1A) of article 359 in material respect is substantially the same as that of article 358. The language of clause (1A) of article 359 makes it clear that the protection which is afforded by that clause is to such law or executive action is the State would but for the provisions contained in Part III of the Constitution be competent to make or take. The word competent has a significance and it is apparent that despite the Presidential order under article 359(1), in the case of executive action the competence of the State to take such action would have to be established. Such competence would, however, be judged ignoring the restriction placed by the provisions of Part III of the Constitution. To put it in other words, clause (1A) of article 359 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat score. Would it, however, follow from the suspension of such right that no judicial remedy would be available if a personal is deprived by an authority of his life or personal liberty even though such an authority has not been vested with the substantive power of deprivation of life and personal liberty. The answer to this question in my opinion, should plainly be in the negative. The suspension of the right to move a court for the enforcement of the right contained in article 21 cannot have the effect of debarring an aggrieved person from approaching the courts with the complaint regarding deprivation of life or personal liberty by an authority on the score that no power has been vested in the authority to deprive a person of life or liberty. The presupposition of the existence of substantive power to deprive a person of his life or personal liberty in article 21 even though that article only mentions the procedure, would not necessarily point to the conclusion that in the event of the suspension of the right to move any court for the enforcement of article 21, the suspension would also dispense with the necessity of the existence of the substantive power. The coexistence of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts cannot be suspended under article 359(1). Likewise, article 359(1) does not deal with obligations and liabilities which flow from statutory provisions, and it would follow that an order under article 359(1) cannot affect those obligations and liabilities arising out of statutory provisions. Nor can a Presidential order under article 359(1) nullify or suspend the operation of any statute enacted by a competent legislature. Any redress sought from a court of law on the score of breach of statutory provisions would be outside the purview of article 359 ( 1 ) and the Presidential order made hereunder. The Presidential order cannot put the detenu in a worse position than that in which he would be if article 21 were repealed It cannot be disputed that if article 21 were repealed, a detenu would not be barred from obtaining relief under a statute in case there is violation of statutory provisions. Likewise, in the event of repeal of article 21, a detenu can rightly claim in a court of law that he cannot be deprived of his life or personal liberty without the authority of law. Article 359(1) ousts the jurisdiction of the court only in respect of matters specified therein during the peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions for some of its precepts. A legal sanction is usually thought of as a harmful consequence to induce compliance with law. Non-compliance with statutory provision entails certain legal consequences. The Presidential order cannot stand in the way of the courts giving effect to those consequences. To put it differently, the executive authorities exercising power under a statute have to act in conformity with its provisions and within the limits set out therein. When a statute deals with matters affecting prejudicially the rights of individuals, the ambit of the power of the authorities acting under the statute would be circumscribed by its provisions, and it would not be permissible to invoke some indefinite general powers of the executive. As observed by Lord Atkinson in the case of Attorney General v. De Keyser s Royal Hotel Ltd.,( [1920] A. C. 508) the constitutional principle is that when the power of the Executive to interfere with the property or liberty of subjects has been placed under Parliamentary control, and directly regulated by statute, the Executive no longer derives its authority from the Royal Prerogative of the Crown but from Parliament, and that in exercising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot necessarily imply any moral turpitude as a matter of law. It only means that the statutory power is exercised for purposes foreign to those for which it is in law intended. In other words, the power conferred by the statute has been utilised for some indirect purpose not connected with the object of the statute or the mischief it seeks to remedy. Similar view was expressed in the case of Durgadas Shirali v. Union of India ors ([1966] 2 S. C. R. 573) In G. Sadanandan v. State of Kerala Anr.( [1966] 3 S. C. R. 590) the Constitution Bench of this Court speaking through Gajendragadkar CJ. struck down a detention order on the ground that it was mala fide. Our founding fathers made article 226 which confers power on the High Court to issue inter alia writs in the nature of habeas corpus an integral part of the Constitution. They were aware that under the US Constitution in accordance with article 1 section IX the privilege of the writ of habeas corpus could be suspended when in cases of rebellion or invasion the public safety may require it. Despite that our founding fathers made no provision in our constitution for suspending the power of the High Courts under article 226 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he illegal usurpation of power by the executive at the cost of the liege. The existence of the power of the courts to issue a writ of habeas corpus is regarded as one of the most important characteristic of democratic states under the rule of law. The significance of the writ for the moral health of the society has been acknowledged by all jurists. Hallam described it as the principal bulwark of English liberty . The uniqueness of habeas corpus in the procedural armoury of our law cannot be too often emphasised. It differs from all others remedies in that it is available to bring into question the legality of a person s restraint and to require justification for such detention. of course this does not mean that prison doors may readily be opened. It does mean that explanation may be exacted why they should remain closed. It is not the boasting of empty rhetoric that has treated the writ of habeas corpus as the basic safeguard of freedom. The great writ of habeas corpus has been for centuries esteemed the best and sufficient defence of personal freedom (see Human Rights Fundamental Freedoms by Jagdish Swarup, page 60). As article 226 is an integral part of the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy to that is a matter of constitutional obligation which is implicit in the Constitution itself. It was further observed by him: No constitutional Government can function in any country unless any particular constitutional authority remembers the fact that its authority is limited by the Constitution and that if there is any authority created by the Constitution which has to decided between that particular authority and any other authority,, then the decision of that authority shall be binding upon any other organ. That is the sanction which this Constitution gives in order to see that the President shall follow the advice of his Ministers, that the executive shall not exceed in its executive authority the law made by Parliament and that the executive shall not give its own interpretation of the law which is in conflict with! the interpretation of the judicial organ created by the Constitution. Article 226 of the Constitution confers power upon the High Courts of issuing appropriate writs in case it is found that the executive orders are not in conformity with the provisions of the Constitution and the laws of the land. Judicial scrutiny of executive orders with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is too pure for a slave to breathe, cannot we also say with I justifiable pride that this sacred land shall not suffer eclipse of the rule of law and that the Constitution and the laws of India do not permit life and liberty to be at the mercy of absolute power of the executive, a power against which there can be no redress in courts of law. even if it chooses to act contrary to law or in an arbitrary and capricious manner. The question is not whether there-can be curtailment of personal liberty when there is threat to the security of the State. I have no doubt that there can be such curtailment even on an extensive scale, in the face of such threat. The question is whether the laws speaking through the authority of the courts shall be absolutely silenced and rendered mute because of such threat. No one can deny the power of the State to assume vast powers of detention in the interest of the security of the State. It may indeed be necessary to do so to meet the peril facing the nation. The considerations of security of the State must have a primacy and be kept in the forefront compared to which the interests of the individuals can only take a secondary place. The motto has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts content and become meaningless. The chances of an innocent person being detained under a law providing for preventive detention on the subjective satisfaction of an administrative authority are much greater compared to the possibility of an innocent person being convicted at trial in a court of law. It would be apposite in this context to refer to the observations of Professor Alan M. Dershowitz: The available evidence suggest that our system of determining past guilt results in erroneous conviction of relatively few innocent people. We really do seem to practice what we preach about preferring the acquittal of guilty men over the conviction of innocent men. But the indications are that any system of predicting future crimes would result in a vastly larger number of erroneous confinements-that is confinements of persons predicted to engage in violent crime who would not, in fact do so. Indeed, all the experience with predicting violent conduct suggests that in order to spot a significant proportion of future violent criminals, we would have to reverse the traditional maxim of the criminal law and adopt a philosophy that it is better to confine ten people who would not commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e maintainability of the habeas corpus petitions to question the legality of the detention orders and that such petitions could be proceeded with despite that order. We may now deal with the second question regarding the scope and extent of judicial scrutiny in petitions for writ of habeas corpus relating to persons detained under MISA. For this purpose it would be appropriate to first deal with the position under the above law so far as cases not covered by section 16A are concerned. According to section 3(1) of MISA, the authorities specified in the sub-section may if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to (i) the defence of India, the relations of India with foreigner powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community, it is necessary so to make an order that such person be detained. The words if satisfied indicate that the satisfaction of the authority concerned is a condition precedent to the making of a detention order. Unless therefore the aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... postulates prior restraint so that the mischief apprehended at the hands of the person ordered to be detained might not materialise. The consequences of waiting and declining to take action against that person till the mischief is actually clone would quite often be disastrous and the nation may in some cases have to pay a heavy price for such abstention. The quantum of material available regarding the conduct and propensity of a person may not be sufficient to warrant his conviction in a court of law for an offence and yet if the material is germane to the object for which detention order can legally be made and the detaining authority is satisfied in view of that material regarding the necessity of making a detention order, such order made by that authority would be upheld as being in accordance with law. It is also not difficult to visualise a situation wherein serious crimes are committed in broad daylight and yet the witnesses to the crime are so much terrified and awestricken that they dare not depose against the culprits in a court of law. In such cases also because of the difficulty of securing the conviction of the culprits, the courts have upheld the detention orders, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that something is to be done according to the rules of reason and justice, not according to private opinion .... according to law and not humour. It is to be, not arbitrary, vague fanciful, but legal and regular. Likewise, if there were no grounds, as observed by Lord Morton in Ross v. Papadopollos ([1958] 2 All. E. R. 23 (on p. 33), or which the authority concerned could he satisfied, the court might infer either that the authority did not honestly form that view or that in forming it, the authority could not have applied its mind to the relevant facts. The courts would also interfere if the power of detention is exercised malafide, not in good faith or for an ulterior purpose. It would follow from the above that if the power of detention is exercised for an improper purpose, i.e., a purpose not contemplated by the statute, the order for detention would be quashed. Between malice in fact and malice ill law, as observed by Viscount Haldana L.C. in the case of Shearer v. Shields ([1914] A. C. 808), there is a broad distinction which is not peculiar to any particular system of jurisprudence. A person who inflicts an injury upon another person in contravention of the law is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if satisfied on the basis of the past activities that it is necessary to detain him with a view to preventing him from acting in a manner prejudicial to the security of India, might well pass a detention order in respect of that person. The fact that in such a case there is a time lag of ten years between the activities of the said person and the making of the detention order would not vitiate such an order. Likewise, a remote prejudicial activity may be so similar to a recent prejudicial activity as may give rise to an inference that the two are a part of chain of prejudicial activities indicative of a particular inclination. In such an event the remote activity taken along with the recent activity would retain its relevance and reliance upon it would not introduce an infirmity. If, however, in a given case and in the context of the nature of activity the time lag between the prejudicial activity of a detenu and the detention order made because of that activity is ex facie long, the detaining authority should explain the delay in the making of the detention order with a view to show that there was proximity between the prejudicial activity and the detention order. If the detainin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondone or allow relaxation in the matter of compliance with procedural requirements would necessarily have the effect of practically doing away with even the slender safeguards provided by the legislature against the arbitrary use of the provisions relating to preventive detention. The history of personal liberty, we must bear in mind, is largely the history of insistence upon procedure. I am, therefore, of the view that it would be wholly inappropriate to countenance any laxity in the matter of strick compliance with procedural requirements prescribed for preventive detention. The observations made in the case of Kishori Mohan v. State of West Bengal (A. T, R. 1974 S. C. 1749) have relevance. It was observed by this Court in that case . The Act confers extraordinary power on the executive to detain a person without recourse to the ordinary laws of the land and to trial by courts. Obviously, such power places the personal liberty of such a person in extreme peril against which he is provided with a limited right of challenge only. There can, therefore, be no doubt that such a law has to be strictly construed. Equally also, the power con feared by such a law has to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show that at his detention is mala fide or not in accordance with law. If the detenu makes out a prima facie case, the burden shifts on the State and it becomes essential for the State to file a good return. Once substantial disquieting doubts are raised by the detenu in the mind of the court regarding the validity of his detention, it would be the bounden duty of the State to dispel those doubts by placing sufficient material before the court with a view to satisfy it about the validity of the detention. In case the detenu fails to discharge the initial burden, his petition for writ of habeas corpus would be dismissed. Even if the detenu discharges the initial burden and makes out a prima facie case against the validity of his detention, but the State files a good return and adduces sufficient material before the court to show that his detention is valid, the detenu s petition would be dismissed. In case, however,, the detenu discharges the initial burden and makes out a prima facie case against the validity of his detention and the State fails to file a good return and does not place sufficient material on the record to show that the detention is valid, a serious infirmity woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosing any such information or materials to the person concerned or affording him any opportunity of making any representation against the making under sub-section (2) or the making or confirming under sub-section (3), or the non-revocation under sub-section (4), of the declaration in respect of him. Sub-sections (6) and (7) provide inter alia that sections 8 to 12 shall not apply in the case of a person detained under a detention order to which the provisions of sub-sections (2) and (3) apply. Sub-section (8) authorises the Central Government whenever it considers it necessary so to do to require the State Government to furnish to the Central Government the information arid materials on the basis of which declaration has been made or confirmed or not revoked and such other information and materials as the Central Government may deem necessary. It would appear from what has been stated above that once a declaration is made with respect to a detenu under sub-sections (2). or (3) of section 16A of MISA, the provisions of sections 8 to 12 of MISA would not apply to such a detenu. The result would be that the grounds of the order of detention would not be disclosed to the pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore its amendment by Act 14 of 1976. Before us arguments have been addressed on behalf of the respondents challenging the validity of section 16,A(9) on the ground that it is violative of article 226 inasmuch as it prevents the High Court from effectively exercising the jurisdiction under that article to issue was of habeas corpus. In my opinion, it would not be permissible in these appeals against orders disposing of preliminary objection to decide the question of validity of section 16A(9). It is manifest that any decision on the question of the validity of section 16A(9) would result either in upholding the validity of the provision or in striking it down. The latter course is out of question for it would be plainly impermissible to strike down the provision in appeal by the State when the validity of such provision has been upheld by the High Court. Like-wise, it would he impermissible in these appeals to record a finding that the ambit of judicial scrutiny is greater than that found by the High Court even though this Court on consideration of the relevant provisions comes to that conclusion. There is no appeal before us by the detenu-respondents. This Court in appeal by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the question of Maintability of the petition under article 226 not only on the ground relating to the question of as to the interpretation of the Constitution mentioned in the order granting the certificate but also with the leave of this Court on other grounds. It is, however, not the effect of article 132(3) that if the High Court in the impugned order decides two distinct preliminary issues, one in favour of one party and the other in favour of the opposite party, this Court in an appeal by only one party against that order of the High Court can also go into the correctness of the issue which has been decided in favour of the appellant. The fact that the respondents in these appeals have as a matter of abundant caution addressed arguments on sub section (9) of section 16A, so that the submissions of the appellants on that point may not remain unanswered, would not justify departure from the principle that this Court cannot, in the absence of an appeal by the respondent, adopt a course which might conceivably enlarge the area of unfavourable decision against the appellant. I am, therefore, of the view that the appropriate occasion for going into the question of the constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure for the exercise of power of depriving a person of his life or personal liberty necessarily postulates the existence of the substantive power. Then article 21 is in force, law relating to deprivation of life and personal liberty must provide both for the substantive power as wen as the procedure for the exercise of such power. When right to move any Court for enforcement of right guaranteed by article 21 is suspended, it would have the effect of dispensing with the necessity of prescribing procedure for the exercise of substantive power to deprive a person of his life or personal liberty, it cannot have the effect of permitting an authority to deprive a person of his life or personal liberty without the existence of such substantive power. (7) A Presidential order under article 359(1) can suspend during the period of emergency only the right to move any court for enforcement of the fundamental rights mentioned in the order. Rights created by statutes being not fundamental rights can be enforced during the period of emergency despite the Presidential order. Obligations and liabilities flowing from statutory provisions likewise remain unaffected by the Presidential order. Any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision to public confidence. Unanimity which is merely formal and which is recorded at the expense of strong conflicting views is not desirable in a court of last resort. As observed by Chief Justice Hughes (Prophets with Honor by Alan Barth, 1974 Ed. P. 3-6) judges are not there simply to decide cases, but t to decide them as they think they should be decided, and while if may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice. A dissent in a court of last resort to use his words, is an appeal lo the brooding spirit of the law to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed. The appeals are disposed of accordingly. BEG, J. The two principal questions placed before us for determination in these appeals from decisions given by various High Courts, on certain preliminary objections to the maintainability and hearing of Habeas Corpus petitions, under Article 226 of our Constitution, have been stated as follows by the Attorney Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ? Would a detention order, by any Government servant without even an ostensible or purported statutory authority to support it, not stand on the same footing as a detention by a private person? Would remedy against detention which may be patently illegal. without need for any real investigation into facts at an also be barred ? Could remedy by way of a writ of Habeas Corpus against any illegal detention by anyone in this country, under any circumstances, be held to be suspended during the Emergency ? The next steps in the argument on behalf of detenues consisted of attempts to show that there could be no distinction in principle, between an order which is, prima facie, ultra vires or made mala fide and one which can be shown to be that only if the facts and circumstances surrounding a detention were fully investigated in a Court. Processes of reasoning, based on hypothetical cases put forward for consideration by us, by learned Counsel for tile detenus seek, by stages to so expand the area of maintainability and investigation on claims for writs of Habeas Corpus in the High Courts that, if we accept them, the result would be that Article 359 of the Constitution and the Presidenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n given to them only for the duration of the Emergency proclaimed under Article 352(1 ) of the Constitution, if the President did not really intend to confer certain immunities from judicial scrutiny and interference upon detentions by executive authorities, even if some of them were contrary to the letter of the law, so that certain over-riding interests of national security and independence may not be jeopardized. The Attorney General s submission is that the risks of misuse of powers by the detaining officers and authorities, which are certainly there, must be presumed to have been over-ridden by the higher claims of national security which the proclamation of emergency denotes. It was pointed out that a citizen, or other person who may have been unfairly or illegally detained due to some unfortunate misapprehension or error, does not loose his remedy altogether. Only his right to move a Court for the enforcement of any of the rights conferred by Part III of the Constitution would be suspended for the time being. He could always approach higher Governmental authorities. All of them could not be so unreasonable as to deny redress in a case of genuine injustice. The proposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... growth of the new functions of the State has made much of his analysis irrelevant. Moreover, the argument from history or, what is the same thing, from the Constitution must be used with discretion. To say that a new policy is unconstitutional is merely to say that it is contrary to tradition, and it must always be considered whether the tradition is relevant to new circumstances. Even if the rule of law as Dicey expounded it had been exact, it would not be a sufficient argument to say of any proposal, as the Committee on Ministers Powers said on a minor point, that it was contrary to the rule of law . Those who glibly talk of the Rule of Law, as expounded by Dicey, forget that Prof. Dicey had made a very gallant and effective (I would not like to use here a colloquial expression, desperate , to describe it) attempt to repel the correctness of what he caned the dark saying of de Tocqueville that the largely conventional English Constitution has no real existence elle n existe point) (See: page 22 of the Dicey s Introduction to the Study of the Law of the Constitution -10th Edn.). He was at pains to show that the Constitutional Law of Eng land did exist. It lived and fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one under which Voltaire, in 1717, was sent to the Bastille for a poem which he had not written, of which he did not know the author, and with the sentiments of which he did not agree . The second assumption of Dicey s Rule of law was. Every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals . He overlooked the not infrequent injustice caused in England of his time, due to want of adequate remedies against the servants of the Crown, by applications of the maxim: The King can do no wrong . He wrote With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen . The third assumption on which Dicey s Rule of Law rested was what he caned the predominance of the Legal Spirit which he described as a special attribute of English Institutions . He explained: We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deals with the so-called suspension of the Habeas Corpus Act . He said that it bears a certain similarity to what is caned in foreign countries suspending the constitutional guarantees .. He euphemistically, explained: But, after an, a statute suspending the Habeas Corpus Act falls very far short of what its popular name seems to imply; and though a serious measure enough, is not, in reality, more than a suspension of one particular remedy for the protection of personal freedom. The Habeas Corpus Act may be suspended and yet Englishmen may enjoy almost all the rights of citizens. The constitution being based on the rule of law, the suspension of the constituion, as far as such a thing can be conceived possible, would mean with us nothing less than a revolution . If Dicey, bewitched by the beauties of an unwritten British Constitution could have been shocked by any modern transgressions of the basic principles of his Rule of Law - in the Introduction to later editions of his book, Dicey modified his earlier views, to some extent, about. the nature and purposes of Droit Administratif , accepted the inevitability of change, and noticed the logical consequenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther hand, believed that the difference in sources and forms of rules made a great difference in approach and outlook. But, Dicey also treated the judge-made Rule of Law and the rights guaranteed by a written constitution as alternatives or different modes of protecting same species of rights. He never dreamt of looking upon them both as simultaneously existing and available Under a written Constitution in addition to what such a Constitution contained. Dicey, indicated the basic distinction between the Constitutional position in England with an unwritten Constitution where the supremacy of Parliament prevailed, and that in the United States of America, with a written Constitution which was supreme. But, despite the differences in the logical consequences of an unwritten constitution, in a country so largely governed by its conventions and disciplined habits of life and thought as Dicey s England, and those of the written Constitution of the U.S.A., one common feature, snared by both English and American systems, was the large amount of judicial Constitutional law making which took place in both countries. In Britain, although the Parliament is the supreme lawgiver, yet, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Constitution is paramount. The Constitution provides the test for the validity of an other laws. It seeks to deter mine. the spheres of executive and legislative and judicial powers with meticulous care and precision. The judicial function, though wider in range when interpreting or applying other articles of the Constitution, particularly Articles 14 and 19, the enforcement of which is also suspended during the current Emergency, is especially constricted by the elaborate provisions of Articles 21 and 22, which deal with personal liberty and preventive detention. The wider the sweep of the provisions of Article 21 and 22 the more drastic must be the effect of suspending their enforcement. After an, suspension does not and cannot mean retention under a disguise. 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 wen as the reflection of an the rules of natural or ethical or common law Lying behind it which can be recognised by Courts. It seems to me to be legally quite impossible to successfully appeal to some spirit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which is actually operative or enforced in or by the win of society or the state. The Science of what rule ought to be made operative by the win of the state is a different thing; it is a science of rules regarded only as existing, whether operative in civil society-that is enforced-or not. A rule made operative by the authority of society, or of the state, is a rule identified with the expressed win of society or of the State. The win of the state, indicated in some form of expression, is the law, the subject of jurisprudence, and no natural rule which may exist, forms a part of the law unless identified with the win of the state so indicated. What the state wins is the conterminous measure of law, no pre existing rule is the measure of that win . John Codman Hurd went on to point out that judicial authorities constituted by the State can only carry out the mandates of the positive law which, for purposes of enforcement, must be deemed to embody an the pre-existing enforceable natural and ethical values. Enforceability, as an attribute of a legal right, and the power of the judicial organs of the State to enforce the right, are exclusively for the State, as the legal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ergency, through Courts, if they fan within the purview of rights whose enforcement is suspended. The result of the few very general observations made above by me, before examining, in greater depth, any of the very large number of connected questions and side issues raised I doubt whether it is necessary or of much use, in view of my opinion on the preliminary issue of enforceability, to consider an of then even if it were possible for me to do so-may be summarised as follows . Dicey s Rule of Law, with special meanings given to it, was meant to prove the existence and peculiarities of the uncodified English Constitutional Law. According to Dicey himself, these features either did not exist elsewhere or were the very objectives of provisions of written Costitutions of other countries. On Dicey s very exposition, no ordinary Judge-made law or common law could survive in opposition to statutory law in England, or, in conflict with a written Constitution where there was one. Enforceability of rights, whether they are constitutional or common law or statutory, in constitutionally prescribed ways by constitutionally appointed judicial organs, is governed solely by he term of the wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 21 exhaust every kind of protection given to rights to personal freedom ? Another way in which this question was put is Article 21 of the Constitution the sole repository of the substantive as wen as procedural rights embraced by the expression personal liberty ? one of the contentions before us was that Article 21 does not go beyond the procedural protection to persons who may be deprived of personal liberty. Mr. Jethmalani, learned Counsel appearing for one of the detenues, contended that personal freedom was a by product of the removal of constraints or hindrances to the positive freedom of action of the individual. The contention seemed to be that procedure for depreciation of personal liberty being one of the ways of imposing positive constraints, the removal of a negative procedural protection could not dispense with the necessity to establish a right of the detaining authority under some positive or statutory law to deprive a person detained of his liberty whether the authority concerned followed the right procedure or not in doing so. The argument is that proof of a just and reason able cause, falling within the objects of the Act so as to create a liability t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . I do not see how it can be reasonably urged that our Constitution-makers did not visualise and intend that the Presidential order under Article 359 must, for the duration of the Emergency, necessarily limit the powers of High Courts under Article 226 albeit indirectly by suspending rights to enforcement of fundamental rights. It is also not possible for a detenue to fan back upon the last part of Article 226 of the Constitution which enables the use of powers given by this Article for any other purpose . Sq long as that purpose is enforcement of a right which is covered by Articles 14 or 19 or 21 or 22 either separately or conjointly, as the enforcement of each of these is now suspended, the inhibition win be there. Moreover, we have no case before us in which a detenu asks for an order for any purpose other than the one which can only be served by tho issue of a writ of Habeas Corpus. Each detenu asks for that relief and for no other kind of writ or order. Therefore, there is no need to consider any other purpose . It is true that some of the learned Counsel for the detenus have strongly relied upon any other purpose , occurring at the end of Article 226, for enabling t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (B) Power to issue writs of Habeaus Corpus and other powers of High Courts under article 226 of the constitution. (C) The objects of the Maintenance of Internal Security Act ( the Act ) and the amendments of it. (D) The purpose and meaning of Emergency provisions, particularly Article 359 of our Constitution. (E) The effect of the Presidential orders, particularly the order of 27th June, 1975, on the rights of Detenus. (F) The Rule of Law, as found in our Constitution, and how it operates during the Emergency. (A) Rights conferred by Part In from the point of view of personal freedom. It is somewhat difficult to reconcile the language of a purported conferment of rights upon themselves by citizens of India with their political sovereignty. The language of the preamble to the Constitution recites that it is they who were establishing the legally Sovereign Democratic Republic with the objects given there. Of course, some rights are conferred even on non-citizens, but that does not remove the semantic difficulty which gave rise to some argument before us. It seems to me that if, as this Court has already explained earlier (e.g. by me in Shrimati Indira Nehru Gand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dinary Courts served purposes sought to be achieved in other countries by means of written Constitutions. This meant that one of the two systems governs the whole field of fundamental rights but not both This very idea is thus put by Keir Lawson in Cases in Constitutional Law (5th Edn. p. 11) : The judges seem to have in their minds an ideal constitution, comprising those fundamental rules of common law which seem essential to the liberties of the subject and the proper government of the country. These rules cannot be repealed but by direct and unequivocal enactment. In the absence of express words or necessary intendment, statutes win be applied subject to them. They do not override the statute, but are treated, as it were, as implied terms of the statute. Here may be found many of those fundamental rights of man which are directly and absolutely safeguarded in the American Constitution or the Declaration des droits de 1 homme . In the passage quoted above, Rules of Natural Justice, which are impliedly read into statutes from the nature of functions imposed upon statutory authorities or bodies, are placed on the same footing as fundamental rights of men whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such alleged Common Law is based on an utter misconception of what Common Law means. The origin of Common Law in England is to be found in the work done by the King s Judges, who, through their judicial pronouncements, gave to the people of that country a law common to the whole country in the place of the peculiar or conflicting local customs. Let me quote here from a recent book by Prof. George W. Keeton on English Law-The Judicial Contribution (at p. 68-69), about what Judges appointed by Henry the II of Anjou did: It is in his reign that something recognisable as a Common Law begins to emerge. It is an amalgam of Anglo Saxon and Danish customs and Norman laws governing military tenures, both of which are about to be transformed by several mighty agencies-the everexpanding body of original writs, of which Glanville wrote; the assizes which Henry introduced and finally, by the activities of his judges, whether 3 at Westminster or on Circuit. It is significant that although for some centuries to come, English law was to remain remarkably rich in local customs, we no longer hear, after t Henry s reign, of the laws of Mercia, Wessex and Northumbria, but of a Common ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as Article 21 of the Constitution is concerned, it is abundantly clear that it protects the lives and liberties of citizens primarily from legally unwarranted executive action. It secures rights to procedure established by law . If that procedure is to be established by statute law, as it is meant to be, this particular protection could not, on the face of it, be intended to operate as a restriction upon legislative power to lay down procedure although other articles affecting legislation on personal freedom might. Article 21 was only meant, on the face of it, to keep the exercise of executive powers in ordering deprevations of life or liberty, within the bounds of power prescribed by procedure established by legislation. The meaning of the expression procedure established by law came in for discussion at considerable length, by this Court, in A. K. Gopalan s case (supra). The majority of the learned James clearly held there that it furnishes the guarantee of Lex , which is equated with statute law only, and not of Jus or a judicial concept of what procedural law ought really to be. The whole idea, is using this expression, taken deliberately from the Japanese Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .K. Gopalan s case that certain articles in the Constitution exclusively deal with specific matters and in determining where there is infringement of the individual s guaranteed rights, the object and the form of the State action alone need be considered, and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be accepted as correct. We hold that the validity of law which authorises deprivation of property and a law which authorises compulsory acquisition of property for a public purpose must be adjudged by the application of the same tests. A citizen may claim in an appropriate case that the law authorising compulsory acquisition of property imposes fetters upon his right to hold property which are not reasonable restrictions in the interests of the general public . It seems to me that Gopalan s case (supra) was merely cited, in Cooper s case (supra), for illustrating a line of reasoning which was held to be incorrect in determining the validity of law for the acquisition of property solely with reference to the provisions of Article 31. The question under consideration in that case was whether Articles 19(1)(f) and 31(2) are mutu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r . `The religion of Natural Law has its illustrious Priestly Heads such as Chrysippus, Cicero, Seneca, St. Thomas Acquinas, Grotius, Hobbes, Locke, Paine, Hamilton, Jefferson and Trietschke. The pantheon is not a heaven of peace. Its gods are locked in constant internecine c nflict. Natural Law has been a highly subjective and fighting faith. Its bewildering variety of mutually warring gods has provoked Kelson to remark: outstanding representatives of the natural law doctrine have proclaimed in the name of Justice or Natural Law principles which not only contradict one another, but are in direct opposition to many positive legal orders. There is no positive law that is not in conflict with one or the other of these principles; and it is not possible to ascertain which of them has a better claim to be recognised than any other. All these principles represent the highly subjective value judgments of their various authors about what they consider to be just or natural. If the concepts of natural law are too conflicting to make them a secure foundation for any alleged right , sought to be derived from it, until it is accepted and recognised by a positive laws no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titutionally provided machinery, as the unseen appendages of the Constitution or as a separate group of rights outside the Constitution meant for the Emergency which suspends but does not resuscitate in a new form certain rights. A submission of Dr. Ghatate, appearing for Mr. Advani, was that we should keep in mind the Universal Declaration of Human Rights in interpreting the Constitution. He relied on Article Sl of the Constitution, the relevance of which for the cases before us is not at all evident to me. He also relied on the principle recognised by British Courts that International Law is part of the law of the land. Similarly, it was urged, it is part of our law too by reason of Article 372 of the Constitution. He seemed to imply that we should read the universal declaration of human rights into our Constitution as India was one of the signatories to it. These submissions appear to me to amount to nothing more than appeals to weave certain ethical rules and principles into the fabric of our Constitution which is the paramount law of this country and provides the final test of validity and enforceability of rules and rights through Courts. To advance such arguments is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lah, J., in Golaknath s case (supra) observed (at p 877 ): What I have said does not mean that Fundamental Rights are not subject to change or modification. In the most inalienable of such rights a distinction must be made between possession of a right and its exercise. The first is fixed and the latter controlled by justice and necessity. Take for example Art. 21: No person shall be deprived of his life or personal liberty except according to procedure established by law . of all the rights, the right to one s life is the most valuable. This article of the Constitution, therefore, makes the right fundamental. But the inalienable right is curtailed by a murderer s conduct as viewed under laws. he deprivation, when it takes place, is not of the right which was immutable but of the continued exercise of the right . The contents of Article 21 were considered at some length and given a wide connotation by this Court ill Gopalan s case (supra). Patanjali Sastri, J., held at pages 195-196: It was further submitted that article 19 declared the substantive rights of personal liberty while article 21 provided the procedural safeguard against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer by the executive. It further gives immunity against invalid laws which contravene the Constitution. It gives also further guarantee that in its true concept there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty. It negatives the idea of fantastic arbitrary and oppressive forms of proceedings. The principles therefore underlying article 21 have been kept in view in drafting article 22 . Das, J., said at page 295: If personal liberty as such is guaranteed by any of the sub-clauses of article 19(1) then why has it also been protected by article 21 ? The answer suggested by learned counsel for the petitioner is that personal liberty as a substantive right is protected by article 19(1) and article 21 gives only an additional protection by prescribing the procedure . according to which that right may be taken away. I am unable to accept this contention. If this argument were correct, then it would follow that our Constitution does not guarantee to any person, citizen or non-citizen, the freedom of his life as a substantive right at all, for the substantive right to life does not fall within any of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndamental rights are basic aspects of rights selected from what may previously have been natural or common law rights. These basic aspects of rights are elevated to a new level of importance by the Constitution. Any other co-extensive rights, outside the Constitution, are necessarily excluded by their recognition as or merger with fundamental rights. Secondly, the object of making certain general aspects of rights fundamental is to guarantee them against illegal invasions of these rights by executive, legislative, or judicial organs of the State. This necessarily means that these safeguards can also be legally removed under appropriate constitutional or statutory provisions. although their Suspension does not, or itself, take away the illegalities or their legal consequences. Thirdly, Article 21 of the Constitution has to be interpreted comprehensively enough to include, together with Article 19, practically all aspects of personal freedom. It embraces both procedural and substantive rights. Article 22 merely makes it clear that deprivations of liberty by means of laws regulating preventive detention would be included in procedure established by law and indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he writ of habeas corpus and subjiciendum, which is commonly known as the writ of habeas corpus, is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody. It is a prerogative writ by which the Queen has a right to inquire into the causes for which any of her subjects are deprived of their liberty. By it the High Court and the judges of that Court, at the in stance of a subject aggrieved, command the production of that subject, and inquire into the cause of his imprisonment. If there is no legal justification for the detention, the party is ordered to be released. Release on habeas corpus is not, however, an acquittal? nor may the writ be used as a means of appeal . It will be seen that the Common Law power of issuing the writ of Habeas Corpus is possessed by only certain courts which could issue prerogative writs. It is only to indicate the origin and nature of the writ that the writ of habeas corpus is known here as a prerogative writ. The power to issue it is of the same nature as a prerogative power inasmuch as the power so long ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent can be restored by resorting to any other purpose . That other purpose could not embrace defeating the effect of suspension of the enforcement of a Constitutional guarantee. To hold that would be to make a mockery of the Constitution. Therefore, I am unable to hold that anything of the natural of a writ of habeas corpus or any power of a High Court under Article 226 could come to the aid of a detenu when the right to enforce a claim to personal freedom, sought to be protected by the Constitution, is suspended. (C)The objects of the Maintenance of Internal Security Act (the Act) and the amendments of it. As this Court has recently held, in Haradhan Saha Anr v. The State of West Bengal ors. ([1975] 1 S.C. R. 778) preventive detention is to be differentiated from punitive detention. Nevertheless, it is evident, whether detention is preventive or punitive, it necessarily results in the imposition of constraints. which, from the point of view justice to the detenu should not be inflicted or continue without fair and adequate and careful scrutiny into its necessity. This Court pointed out that, Article 22 of the Constitution was designed to guarantee these requirements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and categorical that the satisfaction has to be the subjective satisfaction of the detaining authorities, yet, the requirements for sup ply of grounds to the detenus as provided in Section 8 of the Act, in actual practice, opened up a means of applying a kind of objective test by Courts upon close scrutiny of these grounds. The result has been, according to the Attorney General, that the subjective satisfaction of the detaining authorities has tended to be substituted by the subjective satisfaction of Court on the objective data provided by the grounds, as to the need to detain for purposes of the Act. The question thus arose: Did this practice not frustrate the purposes of the Act ? The position of the detenu has generally evoked the sympathy of lawyers and law Courts. They cherish a tradition as zealous protectors of personal liberty. They are engaged in pointing out, day in and day out, the essentials of fair trial. They are used to acting strictly on the rules of evidence contained in the Indian Evidence Act. The possibility of indefinite incarceration, without anything like a trial, not unnaturally, seems abhorrent to those with such traditions and habits of thought and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be vague and defective, the result of the practice developed by Courts was that detenus did, in quite a number of cases, obtain from High Courts, and, perhaps even from this Court, orders of release on Habeas Corpus petitions on grounds on which validity of criminal trials would certainly not be affected. In Prabhu Dayal Deorah etc etc. v. District Magistrate Kamrup : Ors. (A1R. 1974 S. C. 183) . I ventured, with great respect, in my miniority opinion, to suggest that the objects of the Act may be frustrated if Courts interfere even before the machinery of redress under the Act through Advisory Boards, where questions relating to vagueness or irrelevance or even sufficiency of grounds could be more effectively thrashed out than in Courts in proceedings under Article 32 or 226 of the Constitution, had been allowed to complete its full course of operation. In some cases, facts were investigated on exchange of affidavits only so as to arrive at a conclusion that some of facts upon which detention orders were passed did not exist at all. In other cases, it was held that even if a single non-existent or vague ground crept into The grounds for detention, the detention order itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detention of such person under this Act is necessary for dealing effectively with the emergency in respect of which the Proclamations referred to in sub-section (1) have been issued (here after in this section referred to as the emergency) and if, on such review, the appropriate Government is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government may make a declaration to that effect and communicate a copy of the declaration to the person concerned. (3) When making an order of detention under this Act against any person (including a foreigner) after the commencement of this section, the Central Government or the State Government or, as the case may be, the officer making the order of detention shall consider whether the detention of such person under this Act is necessary for dealing effective by with the emergency and if, on such consideration, the Central Government or the State Government or, as the case may be, the officer is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government or officer May make a declaration to that effect and communicate a copy of the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in pursuance of the order made under any law providing for preventive detention, the authority making the order shall, as soon as may he, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. 22(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose . The first contention, that Section 16A(9) affects the jurisdiction of High Courts under Article 226, which an order under Article 359(1) could not do, appears to me to, be untenable. I am unable to see how a Presidential order which prevents a claim for the enforcement of a fundamental right from being advanced in a Court during the existence of an Emergency, could possibly be said not to be intended to affect the exercise of jurisdiction of Courts at all. The second argument, that Section 16A(9) amounts to a general legislative declaration in place of judicial decisions which Courts had themselves to give after considering on the facts of each case, whether Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of Section 16 of the Act itself which says: 16. No suit or other legal proceedings shall lie against the Central Government or a State Government, and no suit, prosecution or other legal proceedings shall lie against any person, for anything in good faith done or intended to be done in pursuance of this Act. Section 16 of the Act seems to leave open a remedy by way of suit for damages for wrongful imprisonment in a possible case of what may be called malice in fact . In the cases before us, we are only concerned with Habeas Corpus proceedings under Article 226 of the Constitution where in my opinion, malice in fact could not be investigated as it is bound to be an allegation subsidiary to a claim for the enforcement of a right to personal liberty, a fundamental right which cannot be enforced during the Emergency. In Sree Mohan Chowdhury v. The Chief Commissioner, Union Territory of Tripura([1964] 3 S.C.R. 442 at 450) a Constitution Bench of this Court, after pointing out that Article 32(4) contemplated a suspension of the guaranteed right only as provided by the Constitution, said (at p. 450-451 ) : The order of the President dated November 3, 1962, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not e correct to go further and read more into the passage cited above than seems intended to have been laid down there. The passage seems to me to indicate quite explicitly, as the language of article 359(1) itself; shows that the detenu s right to move the Courts for the enforcement of his right to personal freedom, by proving an illegal deprivation of it by executive authorities of the State, is certainly not there for the duration of the Emergency. And, to the extent that Courts do not, and, indeed. cannot reasonably, act without giving the detenu some kind of a right or locus standi, their power to proceed with a Habeas petition against executive authorities of the State is itself impaired. It may be that in form and even in substance, a general power to issue writs of Habeas Corpus remains with Courts. But, that court only be invoked in cases falling entirely outside the purview of the Presidential order and Article 359(1). That is how I, with great respect, understand the effect of Sree Mohan Chowdhury s case (supra). It is possible that, if a case so patently gross and clear of a detention falling, on the face of the order of detention or the return made to a notice f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Can one reasonably conceive of a case in which, on a Habeas Corpus petition, a bare look at the detention order or on the return made, the Court could hold that the detention by a duly authorised officer under a duly authenticated order, stands on the same footing as a detention by a private person? I would not like to consider purely hypothetical, possibly even fantastically imaginary, cases lest we are asked to act, as we have practically been asked to, on the assumption that reality is stranger than fiction., and that because, according to the practice of determining validity of detention orders by the contents of grounds served, a number of detentions were found, in the past, to be vitiated, we should not present that executive officers will act according to law. Courts must presume that executive authorities are acting in conformity with both the spirit and the substance of the law: omina praesumutur rite esse acts , which means that all official acts are presumed to have been rightly and regularly done. If the burden to displace that presumption is upon the detenu, he cannot, on a Habeas Corpus petition under Article 226 of the Constitution., ask the Court to embark upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Viscount Maughan (at p. 219): There can plainly be no presumption applicable to a regulation made under this extraordinary power that the liberty of the person in question will not be interfered with, and equally no presumption that the detention must not be made to depend (as the terms of the Act indeed suggest) on the unchallengeable opinion of the Secretary Of State . Following the ratio decidendi of Rex v. Secretary of State for Home Affairs, Ex party Lees,([1941] 1 K. B. 72) the learned Law Lord said (at p. 217). As I understand the judgment in the Lees case it negatived the idea that the court had any power to inquire into the grounds for the belief of the Secretary of State His good faith not being impugned) or to consider whether there were grounds on which he could reasonably arrive at his belief . In Liversidge s case (supra), the Court s power to inquire into the correctness of the belief of the Secretary of State was itself held to be barred merely by the terms of a Regulation made under a statute without even a constitutional suspension of the right to move Courts such as the one we have before us. In Liversidge s case (supra), Lord W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a summary fashion, and not into the truth of facts constituting the cause. By the Habeas Corpus Act of 1816, the powers of Courts were extended so that it became possible to go behind the return in suitable cases other than those where a person was confined for certain excepted matters including criminal charges. In these excepted matters the return was and is still collective that English Courts do not go behind them. In Greene s case, (supra), the rule of presumptive correctness of the return was applied to the return made on behalf of the Secretary of State to the extent of treating it as practically conclusive. It was held that the mere production of the Home Secretaries order, the authenticity and good faith of which were not impugned, constituted a complete answer to an application for a writ of Habeas Corpus and that it was not necessary for the Home Secretary to file an affidavit. It is interesting to note that, in that case, which arose during the Emergency following the war of 1939, the failure of the Advisory Committee to supply the correct reasons for his detention to the petitioner were not held to be sufficient to invalidate his incarceration. On the other hand, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgency y provisions , particularly Article 359 of our Constitution. From the inception of our Constitution, it was evident that the framers of it meant to establish a secular democratic system of Government with certain objectives before it without which real democracy is a mirage. Hence, they provided us not only with an inspiring Preamble to the Constitution and basic Fundamental Rights to citizens, but also with Directive Principles of State Policy so as to indicate how not only a political, but, what is more important, social and economic democracy, with maximum practicable equality of status and opportunity, could be attained. They foresaw that it may be necessary, for preserving the system thus set up and for ensuring a rapid enough march towards the objectives placed before the people of India, to give the executive branch of Government wide powers, in exceptional situations, so that it may deal with all kinds of emergencies effectively, and., thereby, safeguard the foundations of good Government which lie in discipline and orderliness combined with speedy and substantial justice. The late Prime Minister Jawaharlal Nehru once said: You may define democracy in a hundred w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls of a country with which England may be at war, and that the Secretary of State s order indicating that he was satisfied about one of these matters, on hearsay information which could not be divulged in courts, in the interests of national safety and security, was enough, I do not think that either our Constitution contemplating an ouster of jurisdiction of Courts in such cases, or our Parliament, in enacting provisions which have that effect, was going beyond the limits of recognised democratic principles as they operate during emergencies. In fact. decisions on what restraints should be put and on which persons during a national emergency, in the interests of national security, are matters of policy as explained below, which are outside the sphere of judicial determination. Situations of a kind which could not even be thought of in Eng land are not beyond the range of possibility in Asian and African countries or even in Continental Europe or in America judging from events of our own times. Indeed, we too have had our fill of grim tragedies, including the assassination of the father of the nation, which could rock the whole nation and propel it towards the brink of an unfat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by powers beyond the law. Relying upon the report of a secret committee, Mr. Pitt moved for a bill to empower his Majesty to secure and detain persons suspected of conspiring against his person and Government. He justified this measure on the ground that Whatever the temporary danger of placing such power in the hands of the Government it was far less than the danger with which the Constitution and society were threatened. If Ministers abused the power entrusted to them, they would be responsible for its abuse. It was vigorously op posed by Mr. Fox, Mr. Grey, Mr. Sheridan, and a small body of adherents. They denied the disaffection imputed to the people ridiculed the revelations of the committee and declared that no such dangers threatened the State as would justify the surrender of the chief safeguard of personal freedom. This measure would give Ministers absolute power over every individual in the kingdom. It would empower them to arrest, on suspicion, any man whose opinions were abnoxious to then the advocates of reform., even the members of the Parliamentary opposition. Who would be safe, when conspiracies were everywhere suspected, and constitutional objects and lang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Wade and Phillips, to show how, in times of emergency, the ordinary functions of Courts, and, in particular, powers of issuing writs of Habeas Corpus, have been curtailed. In such periods, legislative measures known as suspension of the Habeas Corpus Act . Followed by Acts of Indemnity, after periods of emergency are over, have been restored to England. But, during the first world war of 1914 and the last world war of 1939, it was not even necessary to suspend the Habeas Corpus Act in England . The Courts themselves, on an interpretation of the relevant regulations under the Defence of Realm Act, abstained from judicial interference by denying, themselves power to interfere . In Halsbury s Laws of England (4th Edn. Vol. 8, para 871, page 624), we find the following statement about the Crown s Common Law prerogative power in an Emergency: The Crown has the same power as a private individual of taking all measures which are absolutely and immediately necessary for the purpose of dealing with an invasion or other emergency . And, as regards statutory powers of the Crown (See: Emergency Powers Act., 1920, Sec. l; Emergency Powers Act, 1964, Sec 1), we find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1st August, 1975, makes it clear that both the Legislative and Executive organs of the State, are freed, for the duration of the Emergency, from the limits imposed by Part III of the Constitution. It is unnecessary to refer to the provisions of Articles 356 and 357 except to illustrate the extremely wide character of Emergency powers of the Union Govt. which can, by recourse to these powers, make immune from judicial review, suspend the federal features of our Constitution which have, sometimes, been elevated to the basic level. These provisions enable the Union Govt. to supersede both the legislative and executive wings of Government in a State in the event of a failure of Constitutional machinery in that State, and to administer it through any person or body of persons under Presidential directions with powers of the State Legislature exercisable by or under the authority of Parliament . Article 360, applicable only to Proclamations of financial emergencies, with their special consequences, indicates the very comprehensive character of the Emergency provisions contained in part XVIII of our Constitution. We are really directly concerned only with Articles 352 and 353 and 358 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of clause (2), neither the Supreme Court nor any other court shall have jurisdiction to entertain any question, on any ground, regarding the validity of- (i) a declaration made by Proclamation by the President dent to the effect stated in clause (1); or (ii) the continued operation of such Proclamation . 353. While a Proclamation of Emergency is in operation, then- (a) notwithstanding anything in this Constitution, the executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised; (b) the power of Parliament to make laws with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Union or officers and authorities of the Union as respects that matter, notwithstanding that it is one which is not enumerated in the Union List. 358. While a Proclamation of Emergency is in operation, nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and concluding topic is wide enough to cover the scope of the whole discussion. E. The effect of the Presidential orders and particularly the order of 27th June, 1975, on the rights of detenus. The Presidential order of 3rd November 1962 was issued after the proclamation of Emergency under Article 352(1) on 26th October, 1962. That proclamation said: ...... a grave emergency exists whereby the security of India is threatened by external aggression . On the other hand, the Presidential order of 27th June, 1975, with which we are concerned here was issued under a proclamation which declares that a grave emergency exists whereby the security. Of India is threatened by internal disturbances . There was also a Presidential proclamation of 3rd December, 1971, repeating the terms of the proclamation of 26th October, 1962, 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 . The Presidential order of 3rd November, 1962, reads as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivation satisfies these conditions or not. They could adjudicate upon the question whether a detention was under the Act or a rule made thereunder. On the other hand, the Presidential order of 1975 unconditionally suspends the enforcement of the rights conferred upon any person including a foreigner to move any Court for the enforcement of the rights conferred by Articles 14, 21, and 22 of the Constitution. The Courts are, therefore, no longer obliged or able to test the validity of a detention by examining whether they conform to statutory requirements. They will have to be content with compliance shown with forms of the law. (3) Presidential order of 1962 makes no mention of pending proceedings, but the 1975 order suspends all pending proceedings for the enforcement of the rights mentioned therein. This further clarifies and emphasizes that the intention behind the Presidential order of 1975 was to actually affect the jurisdiction of Courts in which proceedings were actually pending. The inference from this feature also is that all similar proceedings in future will, similarly, be affected. The result is that I think that there can be no doubt whatsoever that the Presiden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the language of the order of 27th June 1975, and a statutory provision, such as Section 16A(9) of the Act, the validity of which cannot be challenged. Hence, strictly speaking, earlier decisions are not applicable. I will, however, consider them under the next heading as considerable argument has taken place before us on the assumption that these cases do apply to such a situation. (F)The Rule of Law as found in our Constitution, and how it operates during the Emergency. As I have indicated earlier in this judgment, the term Rule of Law is not a magic wand which can be waved to dispel every difficultly. It is not an Aladin s Lamp which can be scratched to invoke a power which brings to any person in need whatever he or she may desire to have. It can only mean, for lawyers with their feet firmly planted in the realm of reality, what the law in a particular State or country is and what it enjoins. That law in England is the law made by Parliament. That is why Sir Ivor Jennings said (See: Law and the Constitution-III Edn.) that in England supremacy of Parliament is the Constitution . And naturally, the Constitution of a country and not something outside it contains the Rule o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Emergencies, provided the power of the Court to so test the legality of some executive act is not curtailed, Courts will apply the test of legality if the person aggrieved brines 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 executive action or their relationship with the power to act, it is no use appealing to this particular concept of the Rule of law set out above. It is just inapplicable to the situation which arises here. Such a situation is governed by the Emergency provisions of the Constitution These provisions contain the Rule of Law for such situations in our country. In Mohd. Yaqub etc. v. the State of Jammu Kashmir([1968] 2 S. C. R. p. 227 @ 234), a seven Judge bench of this Court pointed out that, whereas Article 358, by its own force, suspends the guarantees of Article 19, Article 359(1) has the effect of suspending the operation of specified fundamental rights (strictly speaking it is enforcement only which is suspended) so that these concepts cannot be used to test the legality of executiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court pro tanto in that behalf This is exactly the interpretation which I have adopted above of Sree Mohan Chowdhury s case (supra). It was also held in Makhan Singh s case (supra) that, as no attack on the validity of the Defence of India Act of 1962 and the Rules framed thereunder, on the ground of violation of fundamental rights, was open during the emergency, no petition was maintainable on the ground of such alleged invalidity. It was held (at p. 825-826) there: Therefore, our conclusion is that the proceedings taken on behalf of the appellants before the respective High Courts challenging their detention on the ground that the impugned Act and the Rules are void because they contravene Arts. 14, 21 and 22, are incompetent for the reason that the fundamental rights which are alleged to have been contravened are specified in the Presidential order and all citizens are precluded from moving any Court for the enforcement of the said specified rights . After having decided the questions actually calling for determination in that case, Gajendragadkar, J., speaking for the majority, ex pressed some views on the possible pleas which may still be open to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. These grounds constituted the lever which could have been and was used in the past by Courts to reach decisions on various pleas, such as the plea that the order was not passed after due application of mind to the facts of the detenu s case or that the satisfaction reached was not with regard to legally relevant grounds at all. No such means are available now. This difficulty was certainly not in the way at the time of the decision in Makhan Singh s case (supra). I am therefore, of the opinion that pleas which involve any adduction of evidence would, at any rate, be entirely excluded by the combined effect of the terms of the Presidential order of 27th June, 1975, read with the amended provisions of Section 16A(9) of the Act. A perusal of S. Pratap Singh v. State of Punjab,[1964] 4 S. C. R. 733) will show the kind of evidence which often becomes necessary to justify a plea of malice in fact . Pleas about vires of the detention order itself e.g. whether it is based on, irrelevant grounds or was not passed after due application of mind) often require investigation or questions of fact involving scrutiny of actual grounds of detention which is hit by the embargo against an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pradesh Public Security Act, 1959, which was found to be void, because the provision infringed Article 19 of the Constitution, was held to be challengeable during an Emergency despite the provisions of Art. 358 of the Constitution. The ground of the decision was that, although, the empowering provision could not have been challenged if it was contained in an enactment made during the emergency, yet as the provision was made by an Act passed at a time when Article 19 was operative the invalidity of the provision could be demonstrated despite the existence of the emergency. I do not think that there is any such case before us. It seems to me to the possible to distinguish the case on the ground that it was a case of patent voidness of the order passed so that the principle of legality, which is not suspended, could be affirmed even apart from enforcement of a specified fundamental right. I think it was placed on such a footing by Shah J., speaking for this Court. State of Maharashtra v. Prabhakar Pandurang Sangzgiri Anr.,( [1966] Supp S. S. C. R 702) another decision of the Constitution Bench of this Court, was also cited. There, an illegal order prohibiting the sending out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o comprehends disorders of less gravity than those affecting public order . One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression maintenance of law and. Order the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rulers. I take the decision of this Court in Dr. Lohia s case to mean that if the order, on the face of it., is bad and does not satisfy the requirements of the law authorising detention, the detenu may be released. Sarkar, J., pointed out there: The satisfaction of the Government which justifies the order under the rule is a subjective satisfaction. A court cannot enquire whether grounds existed which would have created that satisfaction on which alone the order could have been made in the mind of a reasonable person. If that is so-and that indeed is what the respondent State conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be made itself did not exist in the eye of law. In Durga Dass Shirali v. Union of India ors. a Habeas Corpus petition against a detention order under Rule 30 of the Defence of India Rules, 1962, was again dismissed. But, it was held that Article 358 and the Presidential order under Article 359(1) did not debar the petitioner from assailing his detention on the ground of mala fides or on the ground that any of the grounds mentioned in the order of detention is irrelevant. This case is also distinguishable on the ground that the context from the point of view of the applicable law, was different. In Jai Lal v. State of West Bengal, (8) this Court, after taking evidence by affidavits into account and considering the pleas of mala fides, rejected the petitioner s case although the petitioner was held on the strength of earlier decisions of this Court, entitled to raised the pleas of mala fides despite the Proclamation of emergency and the Presidential order. Again, the context and the applicable law there were different We, however, see that, despite the Proclamation of emergency and a Presidential order under Article 359(1), this Court has held that High Courts, in ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it cannot be because of the impossibility or applying any objective standards to the need for it in a particular case, there could be no question of violating any principle of separation of powers by placing preventive detention exclusively within the control of executive authorities of the State for the duration of the Emergency. That seems lo me to the effect of the emer ency provisions of the Constitution and the amendments of the Act already dealt with by me. Commenting upon Liversidge s case (supra) in The Law Quarterly Review (1942) (Vol. 58-p. 2)., the celebrated jurist and authority on English Constitutional history and law, Sir William Holdsworth, supporting majority decision there, opined: The question turns not, as Lord Atkin says upon whether the common law or the statute law has postulated a reasonable cause for a decision or an action, but upon the question whether or not the decision or the action to be taken on a reasonable cause raises a justifiable issue. Clearly the question whether a person is of hostile origin or associations so that it is necessary to exercise control over him, raises, not a justifiable,, but a political or administr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to popular will, as too uncertain, unequal, and capricious . He said that its history, even in modern times, was filled with legislative lynchings and that this kind of justice was ton susceptible to the influence of personal solicitation, lobbying, and even corruption , and subject to guests of passion, prejudice, and partisanship. He thought that executive or administrative justice, which becomes inevitable in carrying out vast schemes of modern socialistic control and planning of economic, social, and cultural life of the people by the State was also, despite its own mechanisms of control against misuse of power fraught with serious dangers indicated by him. Finally, Dean Pound finds judicial justice, though not entirely immune from error-and, sometimes, grievous and costly error-to be superior to the other two types of justice despite its own inherent shortcomings as compared with executive or administrative justice for special types of cases. Now , the question before us is not whether Courts should apply the high standards of judicial justice to the facts of each individual case which are not before us for consideration at all. The question before us is purely on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngth on any weakness in our legal or judicial system. I would however, like to point out that judicial justice can only be justice according to law . It tends more often to accord with legal justice than moral justice. Not only are the fact finding powers of Courts limited by rules of evidence and procedure, but the process of fact finding and adjudication can miss their objects due to the buying power of money over venel witnesses and the capacity of the wealthy to secure the best forensic talents in the country even if we do not take into account the liability of judges. like the rest of human beings, to err. Ends of justice can be frustrated by all kinds of abuses of the processes of Courts The machinery of executive justice, though not hidebound by technical rules of evidence and procedure, can also be and often is inordinately dilatory. Its wheels can be clogged by red-tape and by corrupt clerical underlings if their palms are not greased by honest citizens. Even those in the upper echelons of the bureaucracy can be sometimes hopelessly unable to see the true objects of an administrative scheme or of the policy embodied in a statute. They tend to be more anxious to please ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be administered and the policies underlying them could not be less, even if they are not better, known to them than to the High Courts on such a matter as preventive detention. As already indicated, it raises essentially matters of policy. Courts cannot decide what individuals with what kind of associations and antecedents should be detained. In some cases,, the associations and affiliations of individuals with groups or originations may certainly be matters of common public knowledge. But, it is only the membership and associations of persons which may be matters of public knowledge. The nature of information, and the manner in which individuals or organisations concerned may do something, which may constitute a danger to the security of the State, are matters of appraisement of situations and policies on which information could certainly not be broadcast. I, therefore, think that a challenge to the validity of Section 16A(9) based either on the submission that grounds for detention do not call for secrecy or that the provision is an unwarranted invasion of judicial power, even in an emergency, is not well-founded. I will indicate below the safeguards which exist in the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acie good return. An argument before us, to which would like to advert here, was that, notwithstanding the emergency provisions., some undefined or even defined principles of Rule of Law, outside the emergency provisions, can be enforced by the High Courts in exercise of their powers under Article 226 of the Constitution because the Rule of Law has been held by this Court to be a part of the inviolable basic structure of the Constitution. It was submitted that, as this basic structure was outside even the powers of amendment of the Constitution under Article 368 of the Constitution, it could not be affected by emergency provisions or by provisions of the Act. We were asked to atleast interpret the emergency provisions and the Act in such a way as to preserve what was represented to be the Rule of Law as a part of the basic structure of the Constitution. It seems to me that the theory of a basic structure of the Constitution cannot be used to build into the Constitution an imaginary part which may be in conflict with Constitutional provisions. The Constitution cannot have a base cut away from the super-structure. Indeed, as explained above, it seems to me that the emerge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bona fides. I call it theoretical because such a case is perhaps not, easily conceivable in England. It also requires some explanation as to what could be meant by holding that a return is conclusive , but the bona fides of the order can be challenged. The explanation seems to me to be that want of bona fides or malice in fact was placed on the same footing as fraud, which nullifies and invalidates the most solemn proceedings. It may, however, be pointed out that, in Greene s case (supra), it was not held that mala fides or any other invalidating fact could be proved during the emergency in habeas corpus proceedings. An explanation of an almost formal exception for a case of want of bona fides could be that the reservation of such a plea was meant only for such proceedings in which malice in fact could reasonably be gone into and adjudicated upon. The position before us, however., is very clear. Section 16A(9) imposes a bar which cannot be overcome in Habeas Corpus proceedings. In addition, a specific suspension or enforcement of the right of personal freedom against executive authorities places the presumption arising from a duly authenticated order of a legally authorised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning officers. Mr. Mayakrishnan, learned Counsel for one of the detenus, con tended that state of emergency, resulting from the Presidential order of 27th June, 1975, cannot be equated with a situation in which Martial Law has been proclaimed. The argument seems to be that if the jurisdiction of Courts to enforce the right ht to personal freedom is affected, the resulting position would be no different from that which prevails when Martial Law is declared. There is no provision in our Constitution for a declaration of Martial Law. Nevertheless, Article 34 of the Constitution recognises the possibility of Martial Law in this country. It provided: 34 notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other t person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area? As there is no separate indication in the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficers may use the amount of force necessary in the circumstances to restore order. This use or force is sometimes termed martial law . When once a state of actual war exists the civil courts have no authority to call in question the actions of the military authorities, but it is for the civil courts to decide, if their jurisdiction is invoked, whether a state of war exists which justifies the application of martial law. The powers. such as they are, of the military authorities cease and those of the civil courts resumed ipso facto with the termination of the State of war. and in the absence of an act of Indemnity, the civil courts may inquire into the legality of anything done during the state of war. Even if there is an Act of Indemnity couched in the usual terms, malicious acts will not be protected. Whether this power of using extraordinary measures is really a prerogative of the Crow, or whether it is merely an example of the common law right and duty of all, ruler and subject alike, to use the amount of force necessary to suppress disorder, is not quite free from doubt. it is, however, clear that so-called military courts set up under martial law are not really courts at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd chaos to meet it with appropriate steps cannot be denied. And, if one can refer to a matter of common knowledge, appearing from newspaper reports, a number of detenus arrested last year have already been released. This shows that whole situation is periodically reviewed. Furthermore, we understand that the care and concern bestowed by the State authorities upon the welfare of detenus who are well housed, well fed, and well treated. is almost maternal. Even parents have to take appropriate preventive action against those children who May threaten to burn down the house they live in. If there are, under our Constitution, some supreme obligations or overriding powers or duties, vested in superior Court-s, as learned Counsel for the detenus seemed to be contending for, to enforce the claims of constitutionality, quite apart from the suspended powers and duties of Courts to enforce fundamental rights, I am sure that the current emergency, justified not only by the rapid improvement. due to it in the seriously dislocated national economy and discipline but also by the rapid dangers of tomorrow, apparent to those who have the eyes to see them, averted by it, could not possibly pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nse to a notice for a writ of Habeas Corpus, the High Court cannot inquire into its validity or vires on the ground of either mala fides of any kind or of non-compliance with any provision of the Maintenance of Internal Security Act in Habeas Corpus proceedings. The preliminary objection of the State must be accepted in such a case. The result is that the appeals before us are allowed and the judgment and order of the High Court in each case is set aside. The High Court concerned will itself now pass an order on each petition in accordance with law as laid down by this Court and the provisions of Article 359(1) of the Constitution. CHANDRACHUD, J. During, the last few years, many questions of far-reaching constitutional importance have engaged the attention of this Court but these appeals, perhaps, present problems of the gravest magnitude. They involve an adjustment between two conflicting considerations, the liberty of the individual on one hand and exigencies of the State on the other. This balancing of the most precious of human freedoms the liberty of the subject as against the most imperative of the State s obligations the security of the State gives rise to multidim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be made before the actual occurrence of war or of external aggression or internal disturbance, if the President is satisfied that there is imminent danger thereof. Clause (5) (a) makes the satisfaction of the President under clauses (1) and (3) final, conclusive and non-justiciable. By clause (5) (b), neither the Supreme Court nor any other court has jurisdiction, subject to the provisions of clause (2), to entertain any question on any ground regarding the validity of a proclamation issued under clause (1) or the continued operation thereof. Article 358 provides that: While a Proclamation of emergency is in operation, nothing in Article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect. Article 359(1) empowers the President, while a Proclamation of emergency is in operation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of November 3, 1962 by the amendment dated November 11, 1962. The emergency declared on October 26, 1962 was revoked by a Proclamation dated January 10, 1968 issued under Article 352(2)(a) of the Constitution. The Defence of India Act, 1962 was to remain in force during the period of operation of the Proclamation of Emergency issued on October 26, 1962 and for a period of six months thereafter . The Act of 1962 expired on July 10, 1968. The maintenance of Internal Security Act, 26 of 1971, (MISA) was brought into force on July 2, 1971 in the shadow of hostilities with Pakistan. Section 3(1) of that Act provides as follows: 3.(1) The Central Government or the State Government may,- (a) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to- (1) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii)the maintenance of supplies and services essential ll to the community, or (b) if satisfied with respect to any foreigner that with a view 2to regulating his con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rogation of any order made before the date cf this order under Clause (1) of Article 359 of the Constitution. Various persons detained under section 3(1) of the MISA filed petitions in different High Courts for the issue of the writ of Habeas Groups. When those petitions can. up for hearing, the Government raised a preliminary objection to their maintainability on the ground that in asking for release by the issuance of a writ of habeas corpus, the detenus were in substance claiming that they had been deprived of their personal liberty in violation of the procedure established by law, which plea was available to them under Article 21 f he Constitution only. The right to move for enforcement of the right conferred by that Article having been suspended by the Presidential order dated June 27, 1975 the petitions, according to the Government, were liable to be dismissed at the threshold. The preliminary objection has been rejected for one reason or another by the High Courts of Allahabad, Bombay, Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan. Broadly, these High Courts have taken the view that despite the Presidential order it is open to the detenus to challenge their dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t right is suspended by the Presidential order issued under Article 359(1), the detenus have no locus standi to file the writ petitions and therefore these petitions must be dismissed without any further inquiry into the relevance of the material on which the grounds of detention are based or the relevance of the grounds or the bona fides of the detaining authority. If the MISA permits the non-disclosure of grounds and indeed prevents their disclosure, there is no question of inquiring into the reasons or grounds of detention and courts must accept at its face value the subjective satisfaction of the detaining authority has recorded in the order of detention. There is no half-way house asserted the Attorney-General. But, not inconsistently with the basic submission that the detenus have no locus standi to file the petitions for habeas corpus, he conceded that the court may grant relief if the detention order is on the face of it bad, as for example, if it is passed by a person not authorised to pass it, or if it is passed for a purpose outside those mentioned in section 3(1) of the MISA or if it does not bear any signature at all. The learned Additional Sol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve functions must be discharged consistently with the valid laws passed by the Legislature and the orders and decrees passed by the Judiciary. The suspension of the right to enforce fundamental rights cannot confer any right on the Executive to flout the law by which it is bound as much in times of emergency as in times of peace. Since there is a valid law regulating preventive detention, namely, the MISA, every order of detention passed by the Executive must confconfirm to the conditions prescribed by that law. 3. Article 359(1) may remove fetters imposed by Part Ill but it cannot remove those arising from the principle or rule of law or from The principle of the limited power of the Executive under the system of checks and balances based on separation of powers . 4. The obligation cast on the Executive to act in accordance with the law does not arise from any particular Article of the Constitution but from the inherent com compulsion arising from the principle of rule of law which is a central feature our constitutional system and is a basic feature of the Constitution. The suspension of the right to enforce Article 21 does not automatically entail the suspension of the rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al as it encroaches upon the High Courts powers under Article 226 of the Constitution by creating a presumption that the grounds on which the order of detention is made and any information or materials on which the grounds are based shall be treated as confidential and shall be deemed to refer to matters of State, so that it will be against the public interest to disclose the same. 13. Section 18 of MISA as amended by Act 39 of 1975 which came into force with effect from June 25, 1975 cannot affect the maintainability of the present petitions which were filed before the Amendment. 14. The dismissal of writ petitions on the around that such petitions are barred by reason of the Presidential order issued under Article 359(1) would necessarily mean that during the emergency no person has any right to life or personal liberty; and 15. If the detenus are denied any forum for the redress of their grievances, it would be open to the Executive to whip the detenus to start them, to keep them in solitary confinement and even to shoot them, which would be a startling state of affairs in a country governed by a written Constitution having in it a chapter on Fundamental Rights. The Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... study, is better placed to decide whether the security of the country is threatened by an imminent danger of internal disturbance. A frank and unreserved acceptance of the Proclamation of emergency, even in the teeth of one s own pre-disposition, is conducive to a more realistic appraisal of the emergency provisions. A declaration of emergency produces far-reaching constituencies. While it is in operation the executive power OF the Union, by reason of Article 353, extends the giving of directions to any State as to the manner in which the executive power thereof is to be exercised. Secondly, the power of Parliament to make laws with respect to any matter includes, during emergency, the power to make laws conferring powers and imposing duties or authorising the conferring of powers and imposition of duties upon the Union or Officers and authorities of the Union as respects that matter, notwithstanding that the matter is not enumerated in the Union List. Article 354 confers power on the President direct that the provisions of Articles 268 to 279, which deal with distribution of revenues between the Union and the States, shall have effect subject to such exceptions or modifications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the body and a writ for securing the liberty of the person was called habeas corpus ad subjiciendum. The writ affords an effective means of immediate release from an unlawful or unjustifiable detention whether in prison or in private custody. The writ is of highest constitutional importance being a remedy available to the lowliest subject against the most powerful government. The liberty of the individual is the most cherished of human freedoms and even in face of the gravest emergencies, Judges have played a historic role in guarding that freedom with real and jealousy, though within the bounds, the farthest bounds, of constitutional power. The world-wide interest generated by the lively debate in Liversidge v. Sir John Anderson and Anr.( [1942] A. C. 206; Lord Atkin, p. 244) has still not abated. And repeated citation has not blunted the edge of Lord Atkin s classic dissent where he said: I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executing minded than the executive. In this country, amid the clash of arms, the laws are not silen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in, in periods of public danger or apprehension. Rarely, however, has this been suffered without jealousy, hesitation, and remonstrance; and whenever the perils of the State have been held sufficient to warrant this sacrifice of personal liberty, no Minister or magistrate has been suffered to tamper with the law at his discretion. Parliament alone, convinced of the exigency of each occasion, has suspended, for a time, the rights of individuals, in the interests of the State. Dicey in his Introduction to the Study of the Law of the Constitution says that: During periods of political excitement the power or duty of the courts to issue a writ of habeas corpus, and thereby compel the speedy trial or release of persons charged with crime, has been found an inconvenient or dangerous Limitation on the authority of the executive government. Hence has arisen the occasion for situates which are popularly called Habeas Corpus Suspension Acts. E.C.S. Wade and Godfrey Phillips observe in their Constitutional Law that in times of grave national emergency, normal constitutional principles must if necessary give way of the overriding need to deal with the emergency. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with every idea of law and political society; and in the end would destroy all civil liberty, by rendering its protection impossible. The clear and present danger test evoked by Justice Holmes in Schenck v. United Slates(Blackston s Commentaries on the Laws of England, 4th Ed. Vol. III pp.125-126), may well be extended to cases like the present where there is a threat of external aggression. On the heels of American entry into the first World War on June 15, 1917, the Congress adopted the Espionage Act creating three new offences which went beyond the prohibition of spying and sabotage. It prescribed punishment of a fine of 10,000 dollars and 20 years imprisonment. A year later, the Act was amended by what is popularly called the Sedition Act which is rendered it illegal even to say anything to obstruct the sale of United States bonds or to say anything contemptuous regarding the form of Government of the United States. A unanimous court upheld Schenck s conviction under the Act for propagating that compulsory service in the Armed Forces was a monstrous wrong against humanity in the interest of Wall Street s chosen few . The judgment was delivered in 1919 when the war was alread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the reason for the relief is that the order of detention is ultra vires. It is clear, apart from the Form in which the relief may or may not be clothed, that the respondents through their writ petitions were moving the High Courts for enforcing their right to personal liberty. The history of the writ of habeas corpus which is succinctly narrated in the late Mr. M. C. Setalvad s The Common Law in India (1) shows that the writ of habeas corpus which was in its inception a purely procedural writ gradually developed into a constitutional remedy furnishing a most powerful safeguard for individual freedom. Mr. Setalvad quotes that the writ has been described as the key that unlocks the door to freedom . Respondents were surely not interested in obtaining an academic declaration regarding the ultra vires character of their detention. They wanted the door to freedom to be opened by the key of the habeas corpus writ. Equally untenable is the contention that article 226 which occurs in Chapter V, Part VI of the Constitution is an entrenched provision and, therefore, under Article 368 no amendment can be made to Article 226 without ratification by the Legislatures of not less than on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ...Unquestionably, the Court s power to issue a writ in the nature of Habeas corpus has not been touched by the President s order, but the petitioner s right to move this Court for a writ of that kind has been suspended by the order of the President passed under Art. 359 (1) . The President s order does not suspend all the rights vested in citizen to move this Court but only his right to enforce the provisions of Arts. 21 and 22. Thus, as a result of the President s order aforesaid, the petitioner s right to Move this Court, but not this Court s power under Art. 32 has been suspended during the operation of Emergency, with the result that the petitioner by no locus standi to enforce his right, if any, during the Emergency, According to the respondents, the limited object of Article 359(1) is to remove restrictions on the power of the legislature so that during the operation of the emergency it would be free to make laws in violation of the fundamental rights specified ;11 the Presidential order. This argument loses sight of the distinction between the provisions or Art. 358 and Art. 359(1A) on the one hand and of Art. 359(1) on the other. Art. 358, of its own force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear from the to decisions that the effect of the Presidential order under Art. 359(1) is to take away the locus standi of a person to move any court for the enforcement or his fundamental rights which are mentioned in the order. Neither of the two cases deals directly with the question G whether the operation of Art. 359(1) is restricted to the legislative field but, if at all, the ratio of those cases may be logically extended to cover executive acts also. During times of emergency, it is the Executive which commits encroachments on personal liberties and the object of Art. 359(1) is to empower the President to suspend the right to move any court for the enforcement of a right to complain against the actions of the Executive, no less than against the laws passed by The Legislature, if either the one or the other contravenes any of the fundamental rights mentioned in the order. This position was controverted by the respondents from several angles. It was contended that in a Constitution which divides State functions into Executive. Legislative and Judicial. the executive functions must be discharged consistently with the laws passed by the Legislature and the orders and decrees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t what Article 359(1) achieves is merely the suspension of the right of an individual to move a court for the assertion of his fundamental rights which have been mentioned in the Presidential order, even if such rights are contravened either by the Legislature or by the Executive. To permit a challenge in a court of law to an order of detention, which is an executive action, on the ground that the order violates a fundamental right mentioned in the Presidential order, is to permit the detenu to enforce a fundamental right during emergency in a manner plainly contrary to Article 359(1). The language of that Article, it is admitted on all hands, is clear and unambiguous. The constitutional consequences of a Proclamation of Emergency are grave and far-reaching. Legislatures can, during emergency, make laws in violation of the seven freedom guaranteed by Article 19 the President has the power to suspend the right to move for the enforcement of all or any of the fundamental rights mentioned in the order issued under Article 359(1); the Executive power of the Union extends during emergencies to giving directions to any State or to the manner in which the executive power thereof is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts action on the basis of law and this, according to the respondents, is the principle of legality or the rule of law. The respondents argument that all executive action which operates to the prejudice of a person must have the authority of law to support it is indisputably valid in normal situations. In the absence of Proclamation of Emergency and in the absence of a Presidential order Article 359(1) of the kind that we have in the instant case, the I executive is under an obligation to obey the law and if it acts to the prejudice of anyone by disobeying the law, its action is liable to be challenged by an appropriate writ. That the rule of law must prevail in normal times is the rule of law under the Indian Constitution. But it is necessary to clear a misconception. Even though the compulsion to obey the law is a compulsion of normal times, Article 358 takes in those cases only in which the executive purports to act under the authority of a law. It does not envisage that the executives can act without the apparent authority of law. In other words, Article 358 enables the Legislature to make laws in violation of Article 19 and the Executive to act under those laws, despite th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on must have the authority of law to support it and that the terms of Article 358 do not detract from that rule. Article 358, according to this Court, did not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others but it merely provides that so long as the Proclamation of Emergency subsists, laws may be enacted and executive action may be taken in pursuance of lawful authority, which if the provisions of Article 19 were operative would have been invalid. It is important to bear in mind that Bharat Singh s case was concerned with a pre-emergency law, though the impugned order was passed thereunder during the operation of emergency. The law having been passed in 1959, which was before the declaration of emergency, it had to comply with Article 19 and if it did not, it was void to the extent of the inconsistency. Since the law was held to be violative of Article 19 it could not claim any protection under Article 358. That article lifts restrictions on legislative power while a proclamation of Emergency is in operation, that is to say, it enables laws to be made during the emergency, ever if they conflict with Article 19. The ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mune from attack merely because a Proclamation of Emergency was in operation. The important point of distinction is that in Ibrahim s case, the impugned order was not made under the authority reserved by the Defence of India ordinance or the rules made thereunder but was issued merely in pursuance of the policy laid down by the Central Government in entrusting the distribution of sugar exclusively to co-operative societies. In Bennett Coleman Company s case the impugned Newsprint Control Policy was an emanation of the old policy which was enunciated prior to the Proclamation of Emer ency. Relying on Ibrahim s case and Bharat Singh s case, this Court held that Article 358 does not authorise the taking of detrimental executive action during the emergency without any legislative authority or in purported exercise of power conferred by a pre-emergency law which was invalid when enacted. The decision in Bennett Coleman Company s case was followed in Meenakshi Mills case where the executive action taken during the emergency did not have the authority of any valid law and the impugned orders having been made under a pre-emergency law were not immune from attack under Article 358. Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gument like the Basic Feature argument is intractable. Emergency provisions contained in Part XVIII of the Constitution which Lure designed Lo protect the security of the State are as important as any other provision of the Constitution. If the true constriction and effect of article 359(1) is as I have stated it to be, it is impossible to hold that such a construction violates the rule of law. The rule of law, during an emergency, is as one finds it in the provisions contained in Chapter XVIII of the Constitution. There cannot be a brooding and omnipotent rule of law drowning in its effervescence the emergency provisions of the Constitution. The Advocate General of Gujarat had peculiar problems to voice. arising out of the fluid and uncertain political situation in his State. He was unable to appreciate how the Executive Government of the State could defy a parliamentary mandate contained in the MISA, either as regards the procedural or the substantive part of that law. Whatever may be the requirements of emergency he seemed to contend, the Gujarat Government could not, save at grave peril to its existence, defy the provisions of a law made by the Parliament. The anguish and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, the decree can lie enforced even if the right to enforce the right to property is suspended by the Presidential order. (3) Prior to the enactment of the Constitution statutory, contractual and common law rights were in existence and those rights can be taken away only by the Legislature. They cannot be affected by the Presidential order. The pre-Constitution common law and statutory rights to personal liberty continued in force by reason of Article 372 of the Constitution, since those rights were not repugnant to any provision of the Constitution. If the fundamental right to personal liberty is suspended by the Presidential order, the pre-Constitution laws will begin to operate by reason of the their of eclipse. There is no authority for the proposition that on the conferment of fundamental rights by the Constitution, the corresponding pre-existing rights Merged in the fundamental rights and that with the suspension of fundamental rights, the corresponding pre-existing rights also got suspended. Article 21 is different in content from the common law right to personal liberty which was available against private individuals also. Since Article 21 merely elevates the right of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no law can possibly curtail it. (7) If a law affecting the fundamental right to personal liberty is void for want of legislative competence., it can be challenged in spite of the Presidential order (8) The suspension of the right to enforce personal liberty cannot confer a licence on executive officers to commit offences against the law of the land, and if they do so, they can be brought to book in spite of the Presidential order. I look at the question posed by the respondents from a different angle. The emergency provisions of the Constitution are designed to protect the Security of the State and in order to achieve that purpose, various powers have been conferred on the Parliament and the President by Chapter XVIII of the Constitution. One of such powers is to be found in Article 359(1) under which the President, during the operation of the emergency, can issue an order suspending the right to move any court for the enforcement of all or any of the fundamental rights conferred by Part III. Proceedings commenced prior to the issuance of such an order, including proceeding s taken prior to the declaration of the emergency itself, automatically remain suspended during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given by the Constitution or is one which existed in the pre-Constitution era. If the arguments of the respondents is correct no action to enforce the right to personal liberty can at all fall within the mischief of the presidential order even if it mentions Articles19, 20, 21 and 22 because, every preliminary objection by the Government to a petition to enforce the right to personal liberty can be effectively answered by contending that what is being enforced is either the natural right to personal liberty or generally, the pre-Constitution right to personal liberty. The error of the respondents argument lies in its assumption, and in regard to the argument of some of the counsel in the major articulate premise, that the qualitative content of the non-constitutional or pre-constitutional right to personal liberty is different from the content of the right to personal liberty conferred by Part III of the Constitution. The right to personal liberty is the right or the individual to personal freedom. nothing more and nothing less. That right along with certain other rights was elevated to the status of a fundamental right in order that it may not be tinkered with and in order that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny court for the enforcement cf the rights mentioned in Part III. The words conferred by Part III which occur in Article 359(1) are not intended to exclude or except from the preview of the Presidential order, rights of the same variety or kind as are mentioned in Part III but which were in existence prior to the Constitution or can be said to be in existence in the post Constitution era, apart from the Constitution. The emphasis of the Article is not the right to suspend the enforcement of the kind of rights mentioned in Part III and not on the fact that those rights are conferred by Part III. To put it differently. the words conferred by Part III are used only in order to identity the particular rights the enforcement of which can be suspended by the President and not in order to impose a limitation on the power of the President so as to put those rights which exist or which existed apart from the Constitution, beyond the reach of the Presidential order. The respondents by their petitions are enforcing their right to personal liberty and that right is a right conferred by or mentioned in Part III or the Constitution. As I have said above, if instead of saying that the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 is only a description of the right of personal liberty in order to facilitate its exact identification and such a description cannot limit the operation of the Presidential order to those cases only where the right to personal liberty is claimed under Article 21. The circumstance that the pre-Constitution rights continued in force after the enactment of the Constitution in view of Article 372 does not make any difference to this position because, even assuming that certain rights to personal liberty existed before the Constitution and continued thereafter as they were not repugnant to any provision of the Constitution, all rights to personal liberty having the same content as the right conferred by Article 21 would fall within the mischief of the Presidential order. The theory of eclipse has no application to such cases because; that theory applies only when a pre- Constitution law becomes devoid of legal force on the enactment of the Constitution by reason of its repugnancy to any provision of the Constitution. Such laws are not void but they are under an eclipse so long as the repugnancy lasts. When the repugnancy is removed, the eclipse also is removed and he law be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r under Article 359(1) . As regards the flouting of the opinion of the Advisory Board by the Government, a writ of mandamus compelling the Government to obey the mandate of the law may perhaps stand on a different hooting as the very nature of such a proceeding is basically different. Lastly, it is unrealistic to believe that after the passing of the Presidential order suspending the existing constitutional rights, Parliament would create new rights to personal liberty so as to nullify the effect of the Presidential order. The easier way for the Parliament would be to disapprove of the Proclamation of emergency when it is placed before it under Article 352(2) (b) of the Constitution or to disapprove of the Presidential order issued under Article 359(1) when it is placed before it under Article 359(3) of the Constitution. But as I have said earlier, it is difficult to furnish a clear and cogent answer to hypothetical illustrations. In the absence of necessary facts one can only make an ad hoc answer, as I have attempted to do regarding the possible issuance of a process against the Governor of a State. Actually, Article 361(3) speaks of a Process for the arrest or imprisonment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their non- fundamental rights the High Courts had the jurisdiction to issue appropriate writs or directions upholding those rights in spite of the Presidential order. This argument cannot be accepted because the entire claim of the resonants is that the order of detention are in violation of the MISA, which in substance means that the respondents have been deprived of their personal liberty in violation of Article 21 of the Constitution. By that Article, no person can be deprived of his life or personal liberty except according to procedure established by law. The grievance of the respondents is that they have been deprived of their personal liberty in violation of the procedure established or prescribed by the MISA. In substance therefor they are complaining of the violation of a fundamental right, which it is not open to them to do in view of the Presidential order by which the right to move any court for the enforcement of the right conferred by Article 21 has been suspended. This judgment, long as it is, will be incomplete without least a brief discussion of some of the important decisions of this Court which were referred to during the course of arguments time and again. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing an application under section 491 was not affected by the Presidential order. This difference in the view of the majority and the minority is now of no consequence as section 491 has ceased to be on the Statute Book after April 1, 1974 when the new Code of Criminal Procedure came into force. The conclusion of the Court in Makhan Singh s case may be summed up thus: 1. Art. 359 is reasonably capable of only one construction as its language is clear and unambiguous. 2. The suspension of Art. 19 contemplated by Art. 358 removes during the pendency of the emergency the fetters created on the legislative and executive powers by Art. 19 and if the legislatures make laws or the executive commits acts which are inconsistent with the rights guaranteed by Art. 19, their validity is not open to challenge either during the continuance of the emergency or even thereafter. 3. As soon as the Proclamation ceases to operate, the legislative enactments passed and the executive actions taken during the course of the said emergency shall be inoperative to the extent to which they conflict with the rights guaranteed under Art. 19 because as soon as the emergency is lifted, Art. 19 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the purview of the Presidential order, must depend upon the construction of Art. 359 ( 1 ) and the order, and in dealing with this point, one must look at the substance of the matter and not its form. 10. It is true that there are two remedies open to a party whose right of personal freedom has been infringed; he may move the Court for a writ under Art. 226(1) of Art. 32(1) of the Constitution, or he may take a proceeding under s. 491(1)(b) of the Code. But despite the fact that either of the two remedies can be adopted by a citizen who has been detained improperly or illegally, the right which he claims is the same if the remedy sought for is based on the ground that there has been a breach of his fundamental rights; and that is a right guaranteed to the citizen by the Constitution, and so, whatever is the form of the remedy adopted by the detenu, the right which he is seeking to enforce is the same. Therefore the prohibition contained in Art. 359(1) and the Presidential order will apply as much to proceedings under s. 491(])(b) is to those under Art., 226(1) Art. 32(1). 11. If the detenu is prohibited from asking for and order of release on account of the Presidential o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be read as if it is a statute. Though the judgment of the majority contain the conclusions set out in (a) to (d) above, I see no doubt that these conclusions owe their justification to the peculiar wording of the Presidential order which was issued in that case. The order dated November 3, 1962, which was the subject matter of Makhan Singh s case, has been set out at the beginning of this judgment. That order suspends the right of a person to enforce the rights conferred by Articles 14, 21 and 22 if. such person has been deprived of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made thereunder . The Presidential order dated June 27, 1975 with which we are concerned in the instant case docs not contain ally clause similar to the one extracted above from the order dated November 3, 1962. The inclusion of that clause ill the earlier order has a significant impact on the question under consideration because, under the earlier Presidential order the right to Move the court was taken away only i-f a person was deprived of his rights under the Defence of India ordinance or under any rule or order made under the ordinance. A petition for h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lo the decision of this Court in Dr. Ram Manohar Lohia v. State of Bihar ors.( ) The appellant therein was also detained under rule 30(l)(b) of the Defence of India Rules, 1962, and he moved this Court under Article 32 of the Constitution for his release. the petition was argued on the basis that it was filed for the enforcement of the right to personal liberty under Articles 21 and 22 of the Constitution. A preliminary objection was raised on behalf of the Government that the petition was barred by reason of the Presidential order dated November 3, 1962, the same as in Makhan Singh s case (supra) Sarkar J., who shared the majority view repelled the preliminary objection by saying that the petition could have been dismissed at the threshold if the order of November 3, 1962 were to take away all rights to personal liberty under Articles 21 and 22. According to the learned Judge, the particular Presidential order did not do so in that, it was a conditional order which deprived a person of his right to move a court for the enforcement of a right to personal liberty only if he was deprived of it by the Defence of India Act or any rule or order made under it. If he has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned in The instant case is not subject to the precondition that the detenu should have been deprived of his rights under any particular Act and, therefore, there is no scope for the inquiry whether the order is consistent or in conformity with any particular Act. This important distinction has not been fully appreciated in some of the judgments under appeal. The observations contained in the majority judgment in Makhan Singh s case that the exercise of a power mala fide is wholly outside the scope of the Act conferring the power and can always be successfully challenged at once raises the question whether in spite of the Presidential order dated June 27, 1975 it is open to the respondents to show that the order of detention in any particular case is vitiated by mala fides. The proposition that a mala fide order has no existence in the eye of law is not peculiar to Makhan Singh s case but has been accepted in various decisions of this Court, two of them being Jaichand Lall Sethia v. State of West Bengal or.( [1966] Supp.S.C.R.464), and Durgadas Shirali v. Union of India ors.( [l966] 2 S.C.R.573). A mala fide exercise of power does not necessarily imply any moral turpitud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on December 3, 1971 and on June 25, 1975 or for a period of 12 months from June 25, 1975 whichever period is the shortest. By subsection (2) of section l6A, the case of every person against whom an order of detention was made under the MISA on or after June 25, 1975 but before the commencement of section 16A on June 29, 1975 is required to be reviewed by the appropriate Government for the purpose of determining whether the detention of such person is necessary for dealing effectively with the emergency. the answer be in the affirmative, the Government is required to make a declaration to that effect By sub-section (3), whenever an order of detention is made under the Act after June 29, 1975 the officer making the order of detention or the appropriate Government is similarly required to consider whether the detention of the persons is necessary for dealing effectively with the emergency. If so a declaration is required to be made to that effect. Sub-section (9)(a) of section 16A provides that the grounds on which an order of detention is made against any person in respect of whom a declaration is made under sub-section (2) or sub-section (3) of section 16A and any information or ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of State and to be against the public interest to disclose is not a genuine rule of evidence but is designed to encroach upon the jurisdiction of the High Courts under Article 226 of the Constitution and is, therefore, void. It is urged that the amendment made by the Parliament in the exercise of its ordinary legislative power comes into direct conflict with the High Court s jurisdiction under Article 226 because it would be impossible for any High Court to consider the validity of an order of detention when a petition for habeas corpus comes before it, if the law prohibits the disclosure of the grounds of detention and the necessary information or materials to the High Court. It is a relevant consideration for examining the charge that the true purpose of section 16A(9) is to encroach on the powers of the High Court under Article 226, that the operation of section 16A itself is limited to the period during which the two proclamations of emergency dated December 3, 1971 and June 25, 1975 are in operation or for a period of 12 months from June 25, 1975 whichever period is the shortest. Following the proclamations of emergency, the President has issued orders under Article 359 (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be exercised consistently with the laws made by competent legislatures within the area of their legislative power. I do not think that it is open to any High Court to say that the law may be otherwise valid but since it interferes with the High Court s power to undertake the fullest enquiry into the matter before it. the law becomes unconstitutional. The principles of res judicata and estoppel, the conclusive presumptions of law and various provisions of substantive law deny a free play to courts in the exercise of their jurisdiction. These are not for that reason unconstitutional qua the High Court s jurisdiction under Article 226. Counsel for the respondents cited the parallel of section 14 of the Preventive Detention Act, 1950 which was struck down by this Court in A. K. Gupalan v. The State ([1950] S.C. R. 88). Sub-section (1) of that section provided, in substance,that no court shall, except for certain purposes. allow any statement to be made or any evidence to be given before it of the substance of any communication of the grounds on which a detention order was made against any person or of any representation made by him. Sub-section (2) of section 14 made it an offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfy its curiosity by tasting the forbidden fruit but its secret scrutiny of the grounds and of the file containing the relevant information and material cannot enter into its judicial verdict. G I am, therefore of the opinion that the challenge made by the respondents to the constitutionality of section 16A(9) must fail. Section 18 need not detain me long because it merely declares that no person who is detained under the Act shall have any right to personal liberty by virtue of natural law or common law, any. the natural law theory was discarded in Kesavanadun Bharati s([1973] Supp. S. C. R. I) case and likewise the common law theory was rejected in Makhan Singh s case. The section only declares what was the true law prior to its enactment on June 25, 1975. The amendment of section 18 by the substitution of the words in respect of whom all order is made on purported to be made under section 3 in place of the words detained under this Act does not render the section open to a challenge on the ground of excessive delegation. The words purported to be made have been inserted in order to obviate the challenge that the detention is not in strict conformity with the MI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cutive with great and vast powers of Government, may feel fairly certain that such powers will be reasonably exercised. The periodical reviews of detention orders. the checks and counter-checks which the law provides and above all the lofty faith in democracy which ushered the birth of the Nation will, h l hope, eliminate all fear that great powers are capable of the greatest abuse. Ultimately, the object of depriving a few of their liberty for a temporary period has to be to give to many the perennial fruits of freedom. I find it not so easy to summarize my conclusions in simple, straightforward sentences. The many-sided issues arising before us do not admit of a monosyllabic answer- yes , or no . All the same these broadly are my conclusions: (1) The order issued by the President on June 27, 1975 under Article 359(1) of the Constitution does not suspend the fundamental principle that all executive action must have the authority of law to support it. Nor does the Presidential order give to the executive a clatter to disobey the laws made by the Parliament, which is the supreme law-making authority. (2) The aforesaid Presidential order, however, deprives a person of his loc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court under Article 226. There is no warrant for reading down that section so as to allow the court to inspect the relevant files to the exclusion of all other parties. (9) Section 18 of the MISA does not suffer from the vice of excessive delegation and is a valid piece of legislation. And so we go back to The Zamora([1916] 2 A. C. 77) , Rex v. Holliday([1917] A. C. 260, 271), Liversidge v. Anderson([1942] A. 206), Greene v. Secretary of State([l942] A. 284). A jurisdiction of suspicion is not a forum for objectivity. These who are responsible for national security must be the sole judges of what the national security requires ; However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the war, or escape from national plunder or enslavement . As a result, perhaps the only argument which the court can entertain is whether the authority which passed the order of detention is duly empowered to pass it, whether the detenu is properly identified and whether on the face of the order the stated purpose of detention is within the terms of law. These q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o an applicant despite the Presidential order dated 27th June, 1975. There were differences of opinion amongst them, but for the purpose of the present appeals, it is not necessary to refer to those differences as they are not material. The Rajasthan High Court and the Nagpur Bench of the Bombay High Court also considered the interpretation and validity of section 16A, sub-section (9) of the Maintenance of Internal Security Act, 1971 and while the Rajasthan High Court accepted the interpretation of that sub-section canvassed on behalf of the Government and upheld its validity even on that interpretation, the Nagpur Bench of the Bombay High Court held the sub-section to be valid by reading it down so as not to exclude the power of the High Court under Article 226 of the Constitution to call for the grounds, information and materials on which the order of detention was based. Since in the view of these High Courts, the writ petitions filed by the detenus were maintainable, though on certain limited grounds of challenge, each of the writ petitions was directed to be set down for hearing on merits. There- upon each of the aggrieved State Governments obtained special leave to appeal aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 75 has been issued is a consequential provision which comes into operation when a Proclamation of emergency is issued by the President under Article 352. It is evident that a national emergency creates problems for a democracy no less than for other governments. A totalitarian Government may handle such a situation without embarrassment. But the apparent necessities evoked by danger often conflict gravely with the postulates of constitutional democracy. The question arises-and that was a question posed by Abraham Lincoln on July 4, 1861: can a democ- ratic constitutional government beset by a national emergency be strong enough to maintain its own existence without at the same time being so strong as to subvert the liberties of the people it has been instituted to defend. This question is answered affirmatively by the incontestable facts of history if we have regard to the experience of emergency governments of three large modern democracies-the United States, Great Britain and France. There is no reason why the Indian experience should be otherwise, if the basic norms of constitutionalism in assumption of emergency powers are observed. What are these basic norms in a constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cies of a national crisis. When there is an emergency arising out of a national crisis, a constitutional democratic government has to be temporarily altered to whatever degree necessary to overcome the peril and restore normal conditions. This alteration invariably involves government of a stronger character. The government has to assume larger power in order to meet the crisis situation and that means that the people would have fewer rights. There can be no doubt that crisis government means strong and arbitrary government and as pointed out by Cecil Carr in his article on Crisis Legislation in Great Britain published during the Second World War in the eternal dispute between Government and liberty, crisis means more government and less library. In fact Scrutton, L.J. never a fulsome admirer of government departments, made the classic remark in his judgment in Ronnfeldt v. Phillips( ) that war cannot be carried on according to the principles of Magna Carta and there must be same modification of the liberty of the subject in the interests of the State. The maxim salus populi suprema lex esto, that is publicsafety is the highest law of all, must prevail in times of crisis and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beas corpus. There were also various other defects which were revealed in course of time and with a view to remedying those defects and making the writ more efficient as an instrument of securing the liberty of the subject unlawfully detained, reforms were introduced by the Habeas Corpus Act, 1679, and when even these reforms were found insufficient, the Habeas Corpus Act, 18 1 6 was enacted by which the benefit of the provisions of the Habeas Corpus Act, 1679 was made available in cases of civil detention and the judges were empowered to inquire into the truth of the facts set out in the return to the writ. The machinery of the writ was thus perfected by legislation and it became one of the most important safeguards of the liberty of the subject and, as pointed out by Lord Halsbury, L.C., in Cox v. Hakes, it has throughout been jealously maintained by courts of law as a check upon the illegal usurpation of power by the executive at the cost of the liege . Now, in the United States of America, the right to this important writ of habeas corpus by means of which the liberty of a citizen is protected against arbitrary arrest, is not expressly declared in the Constitution, but it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ney granted the writ on the view that the power to suspend the privilege of the writ is a legislative power and the President cannot exercise it except as authorised by law. History tells us that President Lincoln declined to implement the order of the Supreme Court and this would have led to a major constitutional crisis, but the Congress hastened to resolve the controversy by enacting legislation authorising the President to suspend the privilege of the writ whenever in his judgment the public safety requires it. It would, therefore, be seen that even in United States of America, where personal liberty is regarded as one of the most prized possessions of man, the Congress has the power to suspend the writ of habeas corpus and this power has been exercised in the past, though very sparingly. So also in Great Britain the writ of habeas corpus which, as May points out, is unquestionably the first security of liberty and which protects the subject from unfounded suspicions, from aggressions of power has been suspended, again and again, in periods of public danger or apprehension. Parliament, convinced of the exigencies of the situation, has on several occasions suspended, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the first two types mentioned above. The third type of emergency threatening the financial stability of India or any part thereof is dealt with in Article 360 but we are not concerned with it and hence it is not necessary to consider the provisions of that Article. So far as the emergencies of the first two types are concerned, the constitutional implications of a declaration of emergency under Article 352 are much wider than in the United States or Great Britain. These are provided for in the Constitution itself. In the first place, Article 250 provides that while a Proclamation of Emergency is in operation, Parliament shall have the power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List, which means that the federal structure based on separation of powers is put out of action for the time being. Secondly, Article 353 declares that during the time that Proclamation of Emergency is in force, the executive power of the Union of India shall extend to the giving of direction to any State as to the manner in which the executive power thereof is to be exercised and this provision also derogates from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may extend to the whole or any part of the territory of India. (3) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament. It may be pointed out that clause (1A) did not form part of Article 359 when the Constitution was originally enacted but it was introduced with retrospective effect by the Constitution (Thirty-eighth Amendment) Act, 1975. We are not directly concerned in these appeals with the interpretation of Article 358 and clause (1A) of Article 359, but in order to arrive at the proper meaning and effect of clause (1) of Article 359, it will be relevant and somewhat useful to compare and contrast the provisions of Article 358 and clause (1A) of Article 35 on the one hand and clause (1) of Article 359 on the other. It would be convenient at this stage to set out the various steps taken by the Government of India from time to time in exercise of the emergency powers conferred under Part XVIII of the Constitution. When hostilities broke out with Pakistan in the beginning of December 1971, the President issued a Proclamation of Emergency dated 3rd December, 1971 in exercise of the powers conferred under cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suspending the enforcement of the rights conferred by Article 19. This Presidential order is not material, but I have referred to it merely for the sake of completeness. Now the orders of detention challenged by the detenus in the different writ petitions were all expressed to be made in exercise of the powers conferred by section 3 of the Maintenance of Internal Security Act, 1971. The detenus challenged them on various grounds, namely, the orders of detention were not in accordance with the provisions of the Act, they were not preceded by the requisite subjective satisfaction, which constitutes the foundation for the making of a valid order of detention, they were actuated by malice in law or malice in fact or they were outside the authority conferred by the Act. The substance of these grounds according to the Union of India and the State Governments, was that, by these orders of detention, the detenus, were deprived of their personal liberty otherwise than in accordance with the procedure established by law. This constituted infraction of the fundamental right conferred by Article 21 and the writ petitions of the detenus were, therefore, clearly proceedings for enforcemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onferred by the Act, he seeks to enforce this obligation against the State Government and the suspension of enforcement of the fundamental right under Article 21 does not affect the maintainability of his writ petition. The detenus also contended that in any event the right to personal liberty was a statutory right and the suspension of the fundamental right conferred by Art. 21 did not carry with it suspension of the enforcement of this statutory right. The Union of India and the State Governments rejoined to this contention of the detenus by saying that Article 21 was the sole repository of the right of personal liberty and there was no common law or statutory right in a person not to be deprived of his personal liberty except in accordance with law, apart from that contained in Article 21 and therefore, the writ petitions filed by the detenus were in substance and effect petitions for enforcement of the right conferred by Article 21 and hence they were not maintainable. Before we proceed to consider these contentions which have been advanced before us, it is necessary to remind ourselves that the emergency provisions in Part XVIII of the Constitution make no distinction wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acitum 9, clause (2) of the United States Constitution to suspend the privilege of the writ of habeas corpus when in cases of rebellion or invasion the public safety may require it . The British Parliament has also on several occasions in the past suspended the writ of habeas corpus by legislative enactment, though in limited classes of cases. The Constitution-makers were obviously aware that even in these countries which are essentially democratic in character and where the concept of constitutional government has had its finest flowering, the power to exclude judicial review of legality of detention through the means of a writ of habeas corpus has been given to the Supreme legislature or the head of the State and they must have realised that this was a necessary power in times of national peril occasioned by war or external aggression. Could the Constitution-makers have intended to omit to provide for conferment of this power on the head of the State in our Constitution ? We must also disabuse our mind of any notion that the emergency declared by the Proclamation dated 25th June, 1975 is not genuine, or to borrow an adjective used by one of the lawyers appearing on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Presidential order which mentions Article 21, the detenus would have no locus standi to maintain their writ petitions, if it could be shown that the writ petitions were for enforcement of the right conferred by Article 21. That should logically take me straight to a consideration of the question as to what is the scope and content of the right conferred by Art. 21, for without defining it, it would not be possible to determine whether the right sought to be enforced by the detenus in their writ petitions is the right guaranteed under Article 21 or any other distinct right. But before I examine this question, it would be convenient first to deal with clause (1A) of Article 359 and ascertain its meaning and effect. Clause (1A) of Art. 359 did not find a place in the Constitution when it was originally enacted, but it was inserted with retrospective effect by the Constitution (Thirty-eighth) Amendment Act, 1975. It provides that while an order made under cl. (1) of Article 359 mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of the State to make any law or to take any executive action which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al right mentioned in the Presidential order, but it would not enable the legislature or the executive to make any law or to take any executive action which it was not otherwise competent to make or to take. Now it is clear that, if the fundamental rights were not there in the Constitution, the executive being limited by law would still be unable to take any action to the prejudice of a person except by authority of law and in conformity with or in accordance with law and, therefore, even if the Presidential order mentions Art. 21, clause (1A) of Article 359 would not enable the executive to deprive a person of his personal liberty without sanction of law and except in conformity with or in accordance with law. If an order of detention is made by the executive without the authority or law, it would be invalid and its invalidity would not be cured by clause (1A) of Article 359, because that clause does not protect executive action taken without lawful authority. An unlawful order of detention would not be protected from challenge under Article 21 by reason of clause (1A) of Article 359 and the detenu would be entitled to complain of such unlawful detention as being in violation of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the Proclamation of Emergency and, therefore, executive action taken by the State would not be liable to be challenged on the ground that it infringes the fundamental rights under Art. 19, and consequently, the order of the State Government, though made under void law was protected against challenge under Art. 19. This contention was also rejected by the Court in the following words: In our judgment, the argument involves a grave fallacy. All executive action which operates to the prejudice of any person must have authority of law to support it, and the terms of Art. 358 do not detract from that rule. Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others . it merely provides that so long as the proclamation of emergency subsists laws may be enacted, and executive action may be taken in pursuance of lawful authority, which if the provisions of Art. 19 were operative would have been invalid. The view taken by the Court was that it is only where executive action ii taken in pursuance of lawful authority that it is immune from challenge under Art. 19 and in such a case even if it confli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court, a fortiori a like interpretation must be placed on clause (1A) of Art. 359, as both are closely similar in form as well as language. It must, therefore, be held that even though a Presidential order issued under clause (1) of article 359 mentions Art. 21, where it is found that a detention has not been made in pursuance of lawful authority or in other words, the detention is without the authority of law, whether by reason or there being no law at all or by reason of the law under which the detention is made being void, clause ( 1A) of Art. 359 would not protect it from challenge under Art. 21 and it would be in conflict with that Article. The only question then would be whether the detenu would be entitled to challenge the validity of tile detention as being in breach of Art. 21, in view of clause (1) of Art. 353 read with the Presidential order mentioning Art. 21. Now, at the outset, a contention of a preliminary nature was advanced by Mr. Shanti Bhushan, learned Advocate appearing on behalf of some of the detenus, that clause (1) of article 359 can have no operation in cases where a detenu seeks to enforce his right of personal liberty by challenging the legality o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a right. That is often done for lending greater emphasis and strength to the legislative enactment. One instance may be found in s. 298, sub-s. (1) of the Government of India Act, 1935 which provided that no subject of His Majesty domiciled in India shall on grounds only of religion, place of birth descent, colour or any of them A be ineligible for office under the Crown in India, or be prohibited on any such grounds from acquiring, holding or disposing of property or carrying on any occupation, trade, business or profession in British India. Though this provision was couched in negative language, the Judicial Committee of the Privy Council in Punjab Province v. Daulat Singh(73 Indian Appeals 59) construed it as conferring a right on every subject of His Majesty, domiciled in India. B Similarly, Art. 14 also employs negative language and yet it was construed to confer a fundamental right on every person within the territory of India, S. R. Das, C.J., pointed out in Basheshar Nath v. The Commissioner of Income Tax, Delhi Rajasthan([1959] Supp. (I) S. C. R. 529) that it is clear from the language of Art. 14 that The command of that Article is directed to the State and the reali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of guarantees on the texture of basic human rights. This statement of the law establishes clearly and without doubts that Article 21 confers the fundamental right of personal liberty. Let us, for a moment, consider what would be the consequences if Art. 21 were construed as not conferring a right to personal liberty. Then there would be no fundamental right conferred by Art. 21 and even if a person is deprived of his personal liberty otherwise than in accordance with the procedure established by law and there is infringement of Art. 21, such person would not be entitled to move the Supreme Court for a writ of habeas corpus under Art. 32, for that Article is available only for enforcement of the rights conferred by Part III. That would be a startling consequence, as it would deprive the Supreme Court of a wholesome jurisdiction to protect the personal liberty of an individual against illegal detention. Let it not be for gotten that the Supreme Court has exercised this jurisdiction in a large number of cases over the last 25 years and set many detenus at liberty where it found that they were illegally detained. All this exercise of jurisdiction in the past would be rendered i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarded as having been carved out of Article 21. That Article protects all attributes of personal liberty against executive action which is not supported by law. lt is not necessary for the purpose of the present appeals to decide what those attributes are or to identify or define them. It is enough to say that when a person is detained, there is deprivation of personal liberty within the meaning of Article 21. Now Article 21 gives protection against deprivation of personal liberty but what is the nature and extent of this protection ? In the first place, it may be noted that this protection is only against State action and not against private individuals. Vide P. D. Shamdasani v. Central Bank of India Ltd. (supra) and Smt. Vidya Verma v. Dr. Shiv Narain([1955] 2 S. C. R. 983). Secondly, it is clear from the language of Art. 21 that the protection it secures is a limited one. It says and I am quoting here only that part of the Article which relates to personal liberty, that no one shall be deprived of his personal liberty except by the procedure prescribed by law. The meaning of the word law as used in this Article came to be considered by this Court in A. K. Gopalan v. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as procedural safeguards. This was pointed out by Patanjali Sastri, J. in A. K. Gopalan v. State of Madras (supra) at page 195 of the Report where the learned Judge said: If article 21 is to be understood as providing only procedural safeguards, where is the substantive right to personal liberty of non-citizens to be found in the Constitution ? Are they denied such right altogether ? If they are to have no right of personal liberty, why is the procedural safeguard in article 21 extended to them ? And where is that most fundamental right of all, the right to life, provided for in the Constitution? The truth is that article 21,-presents an example of the fusion of procedural and substantive rights in the same provision-the first and essential step in a procedure established by law for such deprivation must be a law made by a competent legislature authorising such deprivation. Mahajan, J. also pointed out in the same case at page 229 of the Report: Article 21, in my opinion, lays down substantive law as giving protection to life and liberty inasmuch as it says that they cannot be deprived except according to the procedure established by law; in other words, it mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly must it be within the legislative competence of the legislature enacting it, but it must also not be repugnant to any of the fundamental rights enumerated in Part III. Vide Shambhu Nath Sarkar v. The State of West Bengal(1) and Khudiram Das v. The State of West Bengal ors.(2). It was contended by Mr. Jethmalani on behalf of some of the detenus that when a Presidential order suspends enforcement of the right conferred by Art. 21, its effect is merely to suspend enforcement of the aforesaid two ingredients and, therefore, the only claims which a detenu is interdicted from enforcing, whilst the Presidential order is in operation, are: ([1974] S.C.R.1) that the law authorising deprivation does not prescribe a procedure, and ([1975] 2 S. C. R. 832) that it does not impose reasonable restrictions on the freedom guaranteed under Art. 19. This contention is plainly erroneous and does not need much argument to refute it. In the first place, the requirement that the law which authorises deprivation of personal liberty should not fall foul of Article 19, or for the matter of that, with any other fundamental right set out in Part III, is not a requirement of Article 21, but it is a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the authorised text of Magna Carta. Whenever reference is made to Magna Carta, it is to the Charter of 1225. which is also described as 9 Henry III (1225) . Magna Carta, according to Sir Ivor Jennings symbolises what we should now call the rule of law, government according to law or constitutional government which means that all power should come from the law and that no man, be he king or minister or private person is above the law . It recognised that the liberties of England, which means the liberties of all free mendepended on the observance of law by King, lord and commoner alike , and without law there is no liberty . Cap. XXIX contains the famous clause of the Magna Carta which provided that: No free man shall be taken, or imprisoned, or dispossessed, of his free tenement, or liberties, or free customs, or be outlawed, or exiled, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land. Thus for the first time the great principle was enunciated-though even before, it was always part of the liberties of the subject-that no one shall be imprisoned or deprived of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess by due course of law- It cannot ever be abridged at the mere discretion of the magistrate, without the explicit per mission of the laws. Here again, the language of the Great Charter is, that no free man shall be taken or imprisoned, but by the lawful judgment of his equals, or by the law of the land. (emphasis supplied) Since then, the validity of this principle has never been doubted and the classical statement of it is to be found in the oft quoted passage from the judgment of Lord Atkin in Eshugbayi (Eleko) v. Officer Administering the Government of Nigeria (supra) where the learned Law Lord said: The Governor acting under the ordinance acts solely under executive powers, and in no sense a Court. As the. executive he can only act in pursuance of the powers given to him by law. In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of Justice. And it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the executive. Since in this countr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... courts can, and in a proper case must consider and determine the question whether there has been a fraud on an Act or an abuse of powers granted by the legislature, Eshugbayi Eleko s case . Ameer Ali, A.C.J., and S. R. Das, J. also quoted with approval in re : Banwarilal Roy ((48 Cal. Weekly Notes 766 at 780) the aforesaid passage from the judgment of Lord Atkin in Eshugbayi Eleko s case (supra) and relied on the decision in Jitendranath Ghosh s case (supra) and particularly the observations from the judgment in that case which I have just reproduced. These observations clearly show that in our country, even in pre-constitution days, the executive was a limited executive, that is, an executive limited by law and it could act only in accordance with law. B It would be seen from the above discussion that, even prior to the Constitution, the principle of rule of law that the executive cannot act to the prejudice of a person without the authority of law was recognised as part of the law of the land and was uniformly administered by the courts. It was clearly law in force and ordinarily, by reason of Article 372, it would have continued to subsist as a distinct and separate p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a statutory principle by some positive law of the State. This position indeed become incontrovertible when we notice that, while recognising and adopting this principle of rule of law as a fundamental right, the Constitution has defined its scope and ambit and imposed limitation on it in the shape of Article 359A, clauses (1) and (1A). When the constitution makers have clearly intended that this right should be subject to the limitation imposed by Article 359, clause (1) and (1A), it would be contrary to all canons of construction to hold that the same right continues to exist independently, but free from the limitation imposed by Article 359, clauses (1) and (1A). Such a construction would defeat the object of the constitution-makers in imposing the limitation under Article 359, clauses (1) and (1A) and make a mockery of that limitation. The consequence of such a construction would be that, even though a Presidential order is issued under clause (1) of Article 359 suspending the right to move the court for enforcement of the right guaranteed under Article 21, the detenu would be entitled to ignore the Presidential order and challenge the order of the detention on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises from the very basis of the doctrine of distribution of powers amongst different bodies created by the Constitution as also from the terms of Articles 73, 154 and 256 of the Constitution. This obligation, contended the detenus, could be enforced against the executive under Article 226 by issue of a writ for any other purpose . Now, it is true that under our Constitution, the executive is a limited executive and it is bound to act in accordance with law and cannot disobey it. If the Maintenance of Internal Security Act, 1971 says that the executive shall be entitled to detain a person only on the fulfillment of certain conditions and according to a specified procedure, it cannot make an order of detention if the prescribed conditions are not fulfilled or the specified procedure is not followed. The executive is plainly and indubitably subordinated to r the law and it cannot flout the mandate of the law but must act in accordance with it. The Judicial Committee of the Privy Council pointed out this constitutional position in Eastern Trust Company v. Mckenzie Mann Co. Ltd.( [1915] A C. 750) in an appeal from the Supreme Court of Canada: The non-existence of any right to bring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view I am taking. It is almost conclusive. It is an argument for which I must express my indebtedness to Prof. P. K. Tripathi. In an article written on Judicial and Legislative Control over the Executive during Martial Law and published in the Journal Section of All India Reporter at page 82, Prof. P. K. Tripathi has suggested that considerations of Martial Law may support the conclusion that a Presidential order mentioning Article 21 takes away, wholly and completely, the right of an individual to obtain a writ of habeas corpus challenging the legality of his detention. I must of course hasten to make it clear that there is no Martial law any where in the territory of India at present and I am referring to it only in order to buttress the conclusion otherwise reached by me. The concept of Martial law is well known in the British and American jurisprudence. When a grave emergency arises in which the executive finds itself unable to restore order by employing the ordinary civilian machinery and it becomes necessary for it to use force, it may declare what is commonly termed martial law . Martial law means that the executive calls the military to its aid and the military, act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f habeas corpus has been expressly conferred of the High Courts by a constitutional provision, namely, Article 226. Therefore, the declaration of martial law, which is not even expressly provided in the Constitution, cannot override the provisions of the Article conferring the right to life and liberty as also of Articles 32 and 226 and, unless the right of an individual to move the courts for enforcement of the right to life and liberty can be suspended or taken away by or under an express provisions of the Constitution, the individual would be entitled to enforce the right to life and liberty under Article 32 or Article 226 or by resorting to the ordinary process of law, even during martial law. That would be contradictory of the basic and essential feature of martial law and make it impossible to impose effective martial law anywhere at any time in the territory of India. Such a consequence could never have been imagined by the constitution-makers. They could never have intended that the Government should have the power to declare martial law and yet it should be devoid of the legal effect which must inevitably follow when martial law is in force. Moreover, Article 34 itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to examine the legality of the action of the military authorities or the executive on any ground whatsoever, including the ground of mala fide. But, if the courts are to be prevented from exercising such power during martial law, that situation call be brought about only by a Presidential order issued under Article 359, clause (1) and in no other way and the Presidential order in so far as it suspends the enforcement of the right of personal liberty conferred under Article 21 must be construed to bar challenge to the legality of detention in any court, including the Supreme Court and the High Courts, whilst the Presidential order is in operation. I may also in this connection refer to the decision of the House of Lords in Attorney General Y. De Keyser s Royal Hotel.(4) There, in May 1916, the Crown, purporting to act under the Defence of Realm Consolidation Act, ]914 and the Regulations made thereunder took possession of a hotel for the purpose of Housing the Headquarters personnel of the Royal Flying Corps and denied tthe legal right of the owners to compensation. The owners yielded up possession under protest and without prejudice to their right and by a Petition of Right, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions, and by virtue of its prerogative do the very thing the statutes empowered it to do. The other learned Law Lords who participated in the decision also made observations to the same effect in the course of their speeches. Now it is obvious that the contention of the detenus in the present case is very similar to that advanced on behalf of the Crown in De Keyser s Royal Hotel s case (supra). It almost seems to be an echo of that contention and it must inevitably be answered the same way. When the right of personal liberty based on the rule of law which existed immediately prior to the commencement of the Constitution has been enacted in the Constitution as a fundamental right in Article 21 with the limitation that, when there is a Proclamation of Emergency, the President may, by order under Article 359, clause (1) suspend its enforcement, it is impossible to imagine how that right of personal liberty based on the rule of law can continue to exist as a distinct and independent right free from the limitation as to enforcement contained in Article 359, clause (1). It would be meaningless and futile for the constitution-makers to have imposed this limitation in regard t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s secured to a person by Part III of the Constitution is a right that his property shall be acquired only for public purposes and under a law authorising such acquisition and providing for compensation which is either fixed by the law itself or regulated by principles specified by the law. That is also the very right which was previously secured to the person under section 299 of the Government of India Act. The challenge now made to the validity of the impugned Act is based on the alleged violation of that right. 7 But it is urged, that even so, article 31-B protects only the violation of the fundamental right in so far as it was conferred by Part III of the Constitution and that this right cannot be said to have been conferred by the Constitution. We cannot agree with this contention. This is clearly a case where the concerned right which was secured under section 299 of the Government of India Act in the form of a fetter on the competency of the Legislature and which in substance was a fundamental right, was lifted into the formal category of a fundamental right along with other fundamental rights recognised in the present Constitution. There is therefore nothing inappropr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the limitations of public purpose and payment of compensation being expressly provided for as conditions of acquisition in Article 31 (2), there was no room for implying either of these limitations in the interpretation of the term acquisition in Entry 36 of List II. Ramaswamy, J., speaking on behalf of the Court observed- G It is true that under the Common law of eminent do main as recognised in Anglo-Saxon jurisprudence the State cannot take the property of its subject unless such property is required for a public purpose and without compensating the owner for its loss. But when these limitations are expressly provided for in Article 32(2) and it is further enact- cd that no law shall be made which takes away or abridges these safeguards, and any such law, if made, shall be void, there can be no room for implication, and the words acquisition of property in entry 36 must be understood in their natural sense of the act of acquiring property, without importing into the phrase an obligation to pay compensation or a condition as to the existence of a public purpose. In other words, it is not correct to treat the obligation to pay compensation as implicit i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1941 on the ground that it was ultra vires the Government, as it directed that the Military Court, which was to try the petitioners. should try them together and so precluded the Court from exercising its discretion and control over its own procedure and was thus violative of the right of a citizen to insist that he shall not be tried on a criminal charge save in due course of law and was, also in A conflict with the right of a citizen to personal liberty. The right of personal liberty was guaranteed by Article 40, s. 4, sub-section (1) of the Constitution, while the right of a citizen charged with a criminal offence to insist that he shall not be tried save in due course of law was to be found in Art. 38, section 1. The respondents relied on Article 28, section 3, sub-section (3) of The Constitution which provided: Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be For the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion or to nulify any act done or purported to be done in pursuance of any such law. and contended that by reason of this provision, the Em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... away save with great difficulty. The framers of the Constitution have provided that, after the passage of a limited time, many, though not all of the rights which it gives are put beyond the reach of interference by ordinary law. The framers have however, deliberately inserted Art. 28, s. 3, sub-s. 3, which is clearly designed to prevent the Courts from invoking anything in the Constitution to in validate enactments passed, or to nullify acts done, or which purport to be done, in pursuance of Acts passed for securing the public safety or the preservation of the State in time of war. Gavan Duffy, J. also observed to the same effect: The applicants seek, in the alternative, to base their claims to habeas corpus and prohibition upon antecedent rights of personal liberty and regular trial at Common Law; but, whether or not the imminent Common Law of Ireland needed generally any Art. 50 (containing the laws in force) to retain its vigour, the particular Common Law principles here invoked must both, in my opinion, of necessity have merged in the express provisions declaring how the two corresponding rights are to be in force under the new polity established by An Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r lawful authority and if any executive action is taken without authority of law or. in pursuance OF a law which is void, it will not he protected from challenge under Article 19 by Article 353 and it will be void to the extent to which it conflicts with Article 19. These decisions, properly read, do not support the thesis put forward on behalf of the detenus. The detenus then relied on the decision of this Court in Bidi Supply Co. v. Union of India.( [1156] S. C. R. 267) There,- an omnibus order was made under section 5, sub-section (7A) of the Income Tax Act transferring cases of the petitioner form one place to another. the petitioner challenged this order as being outside the power conferred under section 5, subsection (7A) and hence violative of the fundamental rights guaranteed to him by Articles 14, 19(1)(if) and (b) and 31 of the Constitution. This Court held that the omnibus order made in this case was not contemplated or sanctioned by subsection (7A) of section 5 and. therefore, the petitioner was still entitled to the benefit of the provisions of subsections (1) and (2) of section 64 and since the Income Tax authorities had by an executive order, unsupported by law, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld the challenge and struck down the impugned action as being without the authority of law and while doing so. made the following observations which were strongly relied onp on behalf of the detenus: Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of basic principle of the rule of law-the action of the Government in taking the law into their hands and dispossession the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law-We have here a highly discriminatory and autocratic act which deprives a person of the possession of property without reference to any law or legal authority . (emphasis supplied). These observations Made in the context of a petition for enforcement of the fundamental right under Article 31. clause (1) clearly show that this Court regarded the principle of rule of law that no person shall be deprived of his property without reference to any law or legal authority as embodied in Article 31, clause (1) and did not rely upon this principle of rule of law as a distinct and independent principle apart from Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in exercise of the powers conferred on it by s. 3 of the Defence of India ordinance, 1962. They applied to the Punjab and the Bombay High Courts respectively under s. 491(1) (b) of the Code of Criminal Procedure and alleged that they had been improperly and illegally detained. Their contention was that s. 3(2)(15)(i) and s. 40 of the Defence of India Act, 1962 which replaced the Defence of India ordinance and Rule 30(l)(b) under which they were detained were constitutionally invalid because they contravened their fundamental rights under Arts. 14, 21 and 22(,4) (5) and (7) of the Constitution and so they claimed that an order should be passed in their favour directing the respective State Governments to set them at liberty There was in operation at that time a Proclamation of Emergency dated 26th October, 1962 issued by the President under Art. :352, clause (1 ) on account of the Chinese aggression. The President had also issued an order dated 3rd November, 1962 under Art. 359, clause (1) suspending the right of any person to move any court for the enforcement of the rights conferred by articles 21 and 22 if such person has been deprived of any ,such rights under the Defence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order in challenging the legality or propriety of his detention. Still however, the majority judgment proceeded to give its opinion on this question in the following terms: It still remains to consider what are the pleas which are now open to the citizens to take ill challenging the legality or the propriety of their detentions either under s. 491(1) (b) of the Code or Art. 226(1) of the Constitution. We have already seen that the right to move any court which is suspended by Art. 359(1 ) and the Presidential order issued under it is the right for the enforcement of such of the lights conferred by Part III as may be mentioned in the order. If in challenging the validity of his detention order, the detenu is pleading any right outside the rights specified in the order, his right to move any court in that behalf is not suspended, because it is outside Art. 359(l) and consequently outside the Presidential order itself. Let us take a case where a detenu has been detained in violation of the mandatory provisions of the Act. In such a case, it may be open to the detenu to contend that his detention is illegal for the reason that the mandatory provisions of the Act have been contraven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riety of his detention, despite the Presidential order dated 3rd November, 1962, was not in issue before the Court and did not fall to be decided and the aforesaid observations made by the Court on this question were, therefore, clearly obiter. These observations would undoubtedly be entitled to great weight, but, as pointed out by this Court in H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur Ors. v. Union of India ([1971] 3 S. C. R. 9.) an obiter cannot take the place of the ratio. Judges are not oracles . These observations do not, therefore, have any binding effect and they cannot be regarded as conclusive on the point. Moreover, it must be remembered that when we are considering the observations of a high judicial authority like this Court, the greatest possible care must be taken to relate the observations of a judge to the precise issues before him and to confine such observations, even though expressed in broad terms, in the general compass of the question before him unless the makes it clear that he intended his remarks to have a wider ambit. It is not possible for judges always to express their judgments so as to exclude entirely the risk that in some subseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a full exposition on the law on a question particularly when the question did not even fall to be answered in that judgment . Here, in the present case, unlike the Presidential order dated 3rd November, 1962, which was a conditional order, the Presidential order dated 27th June, 1975 is, on the face of it. an unconditional one and as such there is a vital difference ill effect between the Presidential order dated 3rd November, 1962 and the present Presidential order. In fact, it appears that because of the interpretation and effect of the Presidential Order dated 3rd November, ]962 given in this case and the subsequent cases following it, the President deliberately and advisedly departed from the earlier precedent and made the present Presidential order an unconditional one. These observations made in the context of a conditional Presidential order cannot, therefore, be read as laying down that a plea that an order of detention is not in accordance with the provisions of law or is mala fide is outside the purview of Art. 359 clause (1) and would not be barred even by an unconditional Presidential order such as the one we have in the present case. This distinguishing featur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justified in contending that the present petitions are incompetent under Art. 32 because of the Presidential Order. The petitioners contend that the relevant Rule under which the impugned orders of detention have been passed, is invalid on grounds other than those based on Arts. 14, 19, 21 and 22 and if that plea is well-founded, the last clause of the presidential Order is not satisfied and the bar created by it suspending the citizens fundamental rights under Articles 14, 21 and 22 cannot be pressed into service. These observations, and particularly the portions underlined by me, clearly show-that it was because of the conditional nature of the Presidential Order that the view was taken that if a detenue contents that the order of detention has been made mala fide or that it has been passed by a delegate outside the authority conferred on him under the Act or that it has been exercised inconsistently with the conditions prescribed in that behalf , that is, it is not in accordance with the provisions of law, such a plea would not be barred at the threshold by the Presidential order. The conditional nature of the Presidential order was also stressed by this Court in State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal sanction and cannot be enforced. Mathew, J., too, spoke to the same effect when he said at page 814 of the Report: Although called rights , they are not per se enforceable in courts unless recognised by the positive law of a State . Beg, J. also discounted the theory of natural rights at pages 881 and 882 of the Report and Dwivedi, J. Observed at page 910 of the Report that to regard fundamental rights as natural rights overlooks the fact that some of These rights did not exist before the Constitution and were begotten by our specific national experience . Chandrachud, J., was equally emphatic in saying at pages 975 and 976 of the Report that There is intrinsic evidence in Part III of the Constitution to show that the theory. Of natural rights was not recognised by our constitution-makers-The natural theory stands, by and large, repudiated today-The belief is now widely held that natural rights have no other than political value . It may be pointed out that Subba Rao, J., also in l.C. GolakNath Ors v. Slate of Punjab([1967] 2 S. C. R. 762) at page 789 of the Report rejected the theory of natural rights independent and apart from fundamental rights in Part III. He said: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court can issue a writ of habeas corpus if it finds that the detention of a person is illegal. It is not necessary for this purpose that the court should be moved by the detenu. It is sufficient if it is moved by any person affected by the order of detention. When it is so moved and it examines the legality of the order of detention, it does not enforce the right of personal liberty of the detenu, but it merely keeps the executive within the bounds of law and enforces the principle of legality. The remedy of habeas corpus is a remedy in public law and hence it cannot be excluded by suspension of enforcement of the right of an individual. This contention of the detenus does appear, at first sight, to be quite attractive, but I am afraid, it is not well founded. It fails to take into account the substance of the matter. When an applicant moves the High Court for a writ of habeas corpus, he challenges the legality of the order of detention on the ground that it is not in accordance with law. That challenge proceeds on the basis that the executive cannot deprive a person of his personal liberty except by authority of law and that is why the order of detention is bad. But once it is he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This is a position akin in some respects to that in the United States when the privilege of the writ of habeas corpus is suspended under Art. l, Placitium 9, clause (2) of the United States Constitution and in Great Britain when the Habeas Corpus Suspension Act is passed. It must inevitably follow from this position that as soon as the emergency comes to an end and the Presidential order ceases lo be operative, the unlawful action of the executive becomes actionable and the citizen is entitled to challenge it by moving a court of law. It will be clear from what is stated above that whilst a Presidential order issued under Article 359, clause (1) is in operation, the rule of law is not obliterated and it continues to operate in all its vigour. The executive is bound to observe and obey the law and it cannot ignore or disregard it. If the executive commits a breach of the law, its action would be unlawful, but merely the remedy would be temporarily barred where it involves enforcement of any of the fundamental rights specified in the Presidential order. This would be obvious if we consider what would be the position under the criminal law. If the executive detains a person con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment fails to revoke the detention order and release the detenu in breach of its statutory or obligation under sub-section (2) of section 12. Can the detenu not enforce this statutory obligation by filing a petition for writ of mandamus, The answer must obviously be: he can. When he files such a petition for a writ of mandamus, he would be enforcing his statutory right under sub-section (2) of section 12 and the enforcement of such statutory right would not be barred by a Presidential order specifying Article 21. T he Presidential order would have no operation where a detenu is relying upon a provision of law to enforce a legal right conferred on him and is not complaining of absence of legal authority in the matter of deprivation of his personal liberty. I may also refer by way of another illustration to section 57 of the Code of Criminal Procedure Code, 1973. This section provides that no police officer shall retain in custody a person arrested without warrant for a longer period than under all the circumstances of case is reasonable, and such period shall not, in the absence of a special order of a magistrate under section 167, exceed 24 hours exclusive of the time neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction: one is the fundamental right conferred by Art. 22, clause (5) and the other is the statutory right conferred by art 22. Though the contention of both these rights is the same, they have distinct and independent existence and merely because enforcement of one is suspended, it does not mean that the other also cannot be enforced. The theory of reflection which found favour with the Kerala High Court in Fathima Beebi v. M. K. Ravindranathan(l) is clearly erroneous. I the right conferred under s. 8 were ;1 reflection of the fundamental right conferred by Article 22, clause (S) as the Kerala High Court would have us believe, the removal of the fundamental right under Article 22, clause (S), which is the object reflected, must necessarily result in the effacement of the right under section 8 which is said to constitute the reflection. But even if Article 22 clause (S) were deleted from the Constitution, section 8 would still remain on the statute book until repealed by the legislature. The Presidential order would not, therefore, bar enforcement of the right conferred by section 8. To my mind, it is clear that if a petition or other proceeding in court seeks to enforce a posi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consequences was the question posed before us. An impassioned appeal was made to us to save personal liberty against illegal encroachments l by the executive. We were exhorted to listen to the voice of judicial conscience as if judicial conscience were a blithe spirit like Shelley s Skylark free to sing and soar without any compulsions. I do not think I can allow myself to be deflected by such considerations from arriving at what I consider to be the correct construction of the constitutional provision. The apprehensions and fears voiced on behalf of the detenus may not altogether be ruled out. It impossible that when past powers are vested in the executive, the exercise of which is immune from judicial scrutiny, they may sometimes be abuse d and innocent persons may be consigned to temporary detention. But merely because power may sometimes be abused, it is no ground for denying the existence of the power. All power is likely to be abused. That is inseparable from the nature of human institutions. The wisdom of man has not yet been able to conceive of a government with power sufficient to answer its legitimate end and at the same time incapable of mischief. In the last analysi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises in the life of the nation, the rights of individuals must be postponed to considerations of State and national safety must override any other considerations. I may add that there is nothing very unusual in this situation because? as already pointed out above,, such a situation is contemplate even in countries like the United States of America and Great Britain which are regarded as bastions of democracy. But at the same time it must be remembered by the executive that, because judicial scrutiny for the time being is excluded, its responsibility in the exercise of the power of detention is all the greater. The executive is under an added obligation to take care to see that it acts within the four corner of the law and its actions are beyond reproach. It must guard against misuse or abuse of power, for, though such misuse or abuse may yield short-term gains, it is a lesson of history which should never be forgotten that ultimately means have a habit of swallowing up ends. Before I leave this question, I may point out that, in taking the view 1 have, T am not unaware of the prime importance of the rule of law which, since the dawn of political history, I both in India of Brahadar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izen and the State. After all the Constitution is the law of all laws and there alone judicial conscience must find its ultimate support ,and its final resting place. It is in this spirit of humility and obedience to the Constitution and driven by judicial compulsion, that I have come to the conclusion that the Presidential order dated 27th June, 1975 bars maintainability of a writ petition for habeas corpus there an order of detention is challenged on the ground that it is mala fide or not under the Act or not in compliance with it. On the view I have taken in regard to the answer to be given to the first question, it would be unnecessary to consider the second question, but since the second question has been debated fully and elaborate arguments have been l advanced before us touching not only the interpretation but also the validity of sub-section (9) (a) of section 16A, I think it will be desirable if I pronounce my opinion on this question as well. But before I proceed to do sot, I may make it clear once again that though this question is framed in general terms and so framed it invites the Court to consider the area of judicial security in a petition for a writ of habeas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act. It would be no argument on the part of the detaining authority to say that particular ground is not taken in the petition . vide Nizamuddin v. The State of West Bengal .(4) Once the Rule is issued, it is the bounden duty of the Court to satisfy itself that all the safeguards provided by law have been scruplously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law. Vide Mohd. Alam v. State of West Bengal (5) and Khudiram Das v. state of West Bengal Ors.(6) This practice marks a slight departure from that obtaining in England but it has been adopted by this court in view of the peculiar socio-economic conditions prevailing in the country. Where large masses of people are poor, illiterate and ignorant and access to the courts is not easy on account of lack of financial resources it would be most unreasonable to insist that the petitioner should set out clearly and specifically the grounds on which he challenges the order of detention and make our a prima facie case in support of those grounds before a rule can be issued on he petition and when the Rule is issued, the detaining authority should not be liable to do any thin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he force of law- (a) the grounds on which all order of detention is made or purported to be made under section 3 against any person in respect of whom a declaration is made under sub-section (2) or sub-section (3) and any in formation or materials on which such grounds or a declaration under sub-section (2) or a declaration or confirmation under sub-section (3) or the nonrevocation under sub-section (4) of a declaration arc based, shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public inter est to disclose and save as otherwise provided in this Act, no on shall communicate or disclose any such ground, information or material or any document containing such ground, information or material; the argument urged on behalf of the detenus was that subsection (9) (a) of section 16A should be read down and construed so as not to exclude the power of the High Court in the exercise of its jurisdiction under Article 226 to call for the grounds, information and materials on which the order of detention is made and the declaration under subsection (2) is based with a view to satisfying itself as regards the legality of the detention. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is intended to prevent disclosure of such grounds, information and materials before a court. It says that the grounds, information and materials on which the order of detention is made or the declaration under subsection (2) or sub-section (3) is based shall be treated as confidential and shall be deemed to refer to matters of State and to be against public interest to disclose . There is clearly an echo here of section 123 of the Indian Evidence Act. That section is intended to prevent disclosure in a court of unpublished official records relating to and affairs of State and likewise, sub-section (9) (a) of section 16A must also be held to be designed to achieve the same end, namely prevent, inter alia, disclosure in a court. The words shall be treated as confidential and shall be deemed to be against the public interest to disclose are very significant. If they are to have any meaning at all, they must be construed as prohibiting disclosure even to a Court. How can the grounds, information and materials referred to in this sub-section remain confidential if they can be required to be produced before a court? How can they be permitted to be disclosed to a court when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aj singh ors.( [1955] 1 S. C. R. 267) this Court, while considering the effect of section 105 of the Representation of the People Act, 1951 which gave finality to an order made by the Election Tribunal, observed that that section cannot cut down and affect the overriding power which this Court can exercise in the matter of grant of special leave under Article 136 , and tile same rule was applied to Article 226 in Raj Krushna Bose v. Binoci Kanungo v. ors. [1954] S. C. R. 913 where the Court held that section 105 cannot take away or whittle do the power of the High Court under Article 226. The same view was taken by this court in In re: The Kerala Education Bill, 1957([1959] S. C. R. 995) where S. R. Das C. J.. speaking on behalf of the Court said in relation to Article 226 that No enactment of a State legislature can, as long as that Article stands. take away or abridge the jurisdiction and power conferred on the High Court by that Article. This Court in Prem Chand Garg v. Excise commissioner U P Allahabad [1963] supp. 1 S. C. R 885 actually struck down Rule 12 of order- XXXV of the Supreme Court Rules which required the petitioner in a writ petition under Article 32 to furnish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court under Article 226 and would be void as offending that Article. This was the basis on which section 14 of the Preventive detention Act, 1950 was struck down by this court in A K Gopalan s case (supra). That section prohibited the disclosure of the grounds of detention communicated to the person detained and the representation made by him against the order of detention and barred the court from allowing such disclosure to be made except for purposes of a prosecution for such disclosure. It was held by this Courtin fact by all the judges who participated in the decisionthat this section was void as it contravene(l inter alia Article 32. Kanta, C. J. Observed at page 130 of the Report in a passage of which certain portions have been underlined by me for emphasis: By that section the Court is prevented (except) for the purpose of punishment for such disclosure) from being informed, either by a statement or by leading evidence, of the substance of the grounds conveyed to the detained person under section 7 on which the order was made, or of any representation made by him against such order. It also prevents the Court from calling upon any public officer t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd prevented the Court from looking at Them for the purpose of deciding whether the detention is legal, it A was violative of Article 32 which conferred a fundamental right on a detenu to move this Court for impugning the legality of his detention. The same view was taken by a Constitution Bench of this Court in M. M. Damnoo v. J. K. State (supra). In fact, the observations of Kania, C. J. in A. K. Gopalan s case (supra) which I have reproduced above, were quoted with approval in this decision. The petitioner in this case challenged the legality of his detention by the State of Jammu Kashmir on several grounds. One of the grounds was that the proviso to section 8 of the Jammu Kashmir Preventive Detention Act was void as it conflicted with section 103 of the Constitution of Jammu Kashmir. Section 103 was in the same term as Article 226 and it conferred power on the High Court of Jammu Kashmir to issue after alia a writ of habeas corpus Section 8 of the Preventive Detention Act required the detaining authority to communicate to the detenu the grounds on which the order of detention was made, but the proviso to that section dispensed with the requirement in case of any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contrary, that a rule of evidence can always be enacted by the legislature for the purpose of regulating the proceedings before the High Court under Article 226. A rule of evidence merely determines what shall be regarded as relevant and admissible material for the purpose of enabling the Court to come to a decision in the exercise of its jurisdiction and it does not in any way detract from or affect the jurisdiction of the Court and it cannot, in the circumstances, he violative of Article 226. But in order that it should not fall foul of Article 226, it must be a genuine rule of evidence. If in the guise of enacting a rule of evidence, the legislature in effect and substance disables and impedes the High Court from effectively exercising its constitutional power under Article 226, such an enactment would be void. It will be colourable exercise of legislative power. The legislature cannot be permitted to violate a constitutional provision by employing an indirect method If a legislative provision, though in form and outward appearance a rule of evidence, is in substance and reality something different, obstructing or impeding the exercise of the . jurisdiction of the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , sub-section (9)(a) of section 16A surrounds such grounds, information and materials with the veil of secrecy and, the use the words of Mahajan, J. in A. K. gopalan s case (supra), places an iron curtain around them . This sub-section, according to detenus, compels the Court to shut its eyes to reality and presume by a legal fiction that in every case, whatever be the actuality and many cases the actuality may be otherwise-the grounds, information and materials shall be deemed to refer to matters of State and shall be against that public interest to disclose. This contention of the detenus is undoubtedly very plausible and it caused anxiety to me t on deeper consideration, I think it cannot be sustained. It is significant to note that sub-section (9)(a) of section 16A is a provision enacted to meet the emergency declared under the Proclamations dated 3rd December, 1971 and 25th June, 1975. Vide subjection (1) of section 16A. It comes into operation only when there a declaration made under sub-section (2) or sub-section (3) that the detention of the person concerned is necessary for dealing effective with the emergency. The condition precedent to the applicability of sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily be made in practically every case, and a claim which a judge necessarily has to admit. In view of the fact that the detention is made in order to deal effectively with the emergency, the grounds, information and materials would in most cases be confidential and if a claim of privilege were made under section 123 of the Indian Evidence act, it would almost invariably be held justified. The Legislature, therefore, taking into account the privileged character of the grounds, information and materials in the generality of cases, enacted sub-section (9) (a) of section 16A laying down a rule that the grounds, information and materials shall be deemed to refer to matters of State which it would be injurious to public interest to disclose, instead of leaving it to the discretion of the detaining authority to make a claim of privilege in each individual case and the court to decide it. The rule enacted in sub-section (9) (a) of section 16A bears close analogy to a rule of conclusive presumption and in the circumstances, it must be regarded as a genuine rule of evidence. I may make it clear that if the grounds, information and materials were not, by and large, of such a character as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of a petition for a writ of habeas corpus where an order of detention is challenged on the ground that it is vitiated by Mala fides, legal or factual, or is based on extraneous considerations or is not under the Act or is not in compliance with it. So far as the second question is concerned, I do not think there is any warrant for reading down sub-section (9) (a) of section 16A so as to imply an exception in favour of disclosure to the Court, and, on the interpretation placed by me on that provision, I hold that it does not constitute an encroachment on the constitutional jurisdiction of the High Court under Article 226 and is accordingly not void. In the circumstances, I allow the appeals and set aside the judgments of the High Courts impugned in the appeals. ORDER By majority- In view of the Presidential order dated 27 June 1975 no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an, order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by malafides factual or legal or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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