Makhan Singh Vs. State of Punjab
[1952] INSC 41 (2 September 1952)
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
SUBBARAO, K.
WANCHOO, K.N.
HIDAYATULLAH, M.
GUPTA, K.C. DAS SHAH, J.C.
CITATION: 1964 AIR 381 1964 SCR (4) 797
CITATOR INFO :
R 1964 SC1128 (1) R 1966 SC 657 (6) R 1966 SC
740 (5,24,30) F 1966 SC1078 (5) RF 1967 SC 483 (5) R 1968 SC1313 (10) RF 1971
SC 530 (233) R 1976 SC 958 (26) E 1976 SC1207 (14,33,40,43, TO 49,547) R 1977
SC1027 (12,23)
ACT:
Constitution of India, 1950, Arts. 352 and
359-Proclamation of emergency-President's order restricting enforcement of
fundamental rights-Detention under Defence of India Act (LI of 1962) and
Defence of India Rules-Application for release under s. 491, Code of Criminal
Procedure (Act V of 1898)Maintainability.
HEADNOTE:
The appellants were detained under r. 30(l)
of the Defence of India Rules made by the Central Government under s. 3 of the
Defence of India Ordinance, 1962. They applied to the Punjab and Bombay High
Courts under s. 491(1)(b) of the Code of Criminal Procedure and their case was
that ss. 3(2)(15)(i) and 40 of the Defence of India Act, 1962, and r. 30(1)(b)
of the Defence of India Rules, which were continued under the Act, were
unconstitutional and invalid inasmuch as they contravened their fundamental
rights under Arts. 14, 21, 22(4), (5) and (7) of the Constitution and that,
therefore, they should be set at liberty. The High Court’s held that the
Presidential Order which had been issued on November 3, 1962, under Art. 359(1)
of the Constitution, after a declaration of emergency under Art. 352,
consequent on the Chinese invasion of India, barred their right to move the
said petitions and dismissed them. These appeals raised two common questions in
this Court, (1) what was the true scope and effect of the Presidential Order
issued under Art.
359(1), and (2) did the bar created by the
Order operate in respect of the applications under s. 491(1)(b) of the Code.
The Presidential Order was as follows:"G.S.R.
1464--In exercise of the powers conferred by cl. (1) of article 359 of the
Constitution, the President hereby declares that the right of any person to
move any court for the enforcement of the right conferred by article 21 and
article 22 of the Constitution shall remain suspended for the period during
which the Proclamation of Emergency issued under clause (1) of article 352
thereof on the 26th October 1962 is in force, if such person has been deprived
of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) or
any rule or order made there under." By a later amendment of the Order
Art. 14 was incorporated into it.
798 Held:(per Gajendragadkar, Sarkar,
Wanchoo, Hidayatullah, Das Gupta and Shah, JJ.) that the proceedings taken by
the appellants in the High Court’s under s. 491(1)(b) of the Code were hit by
the Presidential Order and must be held to be incompetent.
Article 359 of the Constitution was not
capable of two interpretations and it was, therefore not necessary to decide
the controversy raised by the parties as to whether that Article should be
interpreted in favour of the President's power granted by it or the fundamental
rights of the citizens.
The King (At the Prosecution of Arthur Zadig)
v. Halliday, [1917] A.C. 260, Liversidge v. Sir John Anderson, [1942] A.C. 206,
Keshav Talpade v. The King Emperor, [1943] F.C.R. Nakkuda Ali v. M. F. De S.
Jayaratne, [1951] A.C. 66 and King Emperor v. Vimalabal Deshpande, L.R. 73 1.
A. 144, considered.
The words 'any court' in Art. 359(1), construed
in their plain grammatical meaning, must mean any court of competent
jurisdiction including' the Supreme Court and the High Court’s before which the
rights specified in the Presidential Order can be enforced. It was not correct
to say that the use of the words was necessary so as to include such other
courts as might be empowered in terms of Art. 32(3). Nor was it correct to say
that the words could not include a High Court as its power to issue a writ
under Art. 226(1) was discretionary.
In judging whether a particular proceeding
fell within the purview of the Presidential Order the determining factor was
not its form nor the words in which the relief was couched but the substance of
it. If in granting the relief the court had to consider whether any of the
fundamental rights mentioned in the Presidential Order, had been contravened,
the proceeding was within the Order, whether it was under Art. 32(l) or 226(1)
of the Constitution.
The right to move the court for writ of
habeas corpus under s. 491(1)(b) of the Code of Criminal Procedure was now a
statutory right and could no longer be claimed under the common law.
Girindra Nath Banerjee v. Birendra Nath Pal
I.L.R. 54 Cal.
727, District Magistrate, Trivandrum v. K. C.
Mammen Mappillai, I.L.R. [1939] Mad. 708, Matthen v. District Magistrate,
Trivandrum L.R. 66 I.A. 222 and King Emperor v.
Sibnath Banerji, L.R. 72 I.A. 241, referred
to.
Since the promulgation of the Constitution
the two methods by which a citizen could enforce his right of personal freedom
were (i) by a writ under Art. 226(1) or Art.
32(l), or (ii) under s. 491(1)(b) of the Code
of Criminal Procedure. Whichever method he adopted if the right he sought to
enforce was a fundamental right guaranteed by the Constitution the matter must,
come within Art. 359(1) of the Constitution. That the court could exercise its
power under s. 491(1)(b) suo motu could make no 799 difference and Arts. 372,
225 or 375 could provide no valid ground of attack. The suspension of the right
to move any court, as under the Presidential Order, must necessarily suspend
the Court's jurisdiction accordingly.
The right to challenge a detention order
under s. 491(1)(b) of the Code had been enlarged by the fundamental rights
guaranteed by the Constitution and when a detenu relied upon such rights in his
petition under that section he was in substance seeking to enforce his
fundamental rights. The prohibition contained in Art. 359(1) and the
Presidential Order must, therefore, apply.
The expression "right to move any court"
in Art. 359(1) and the Presidential Order takes in all legal actions, filed or
to be filed, in which the specified rights are sought to be enforced and covers
all relevant categories of jurisdictions of competent courts under which the
said actions would other-wise have been normally entertained and tried.
Sree Mohan Chowdhury v. Chief Commissioner
Union Territory of Tripura, [1964] 3 S.C.R. 442, referred to.
Even though the impugned Act may be invalid
by reason of contravention of Arts. 14, 21 and 22, as contended by the
appellants, that invalidity could not be challenged during the period
prescribed by the Presidential Order and it could not be said that the
President could not because of such invalidity issue the order.
Where, however, the challenge to the validity
of the detention order was based on any right other than those mentioned in the
Presidential Order, the detenu's right to move any court could not be suspended
by the Presidential Order because the right was outside Art. 359(1).
Where again the detention was challenged on
the ground that it contravened the mandatory provisions of the relevant act or
that it was malafide and was proved to be so and in all cases falling under the
other categories of s. 491(1) of the Code excepting those under s. 491(1)(b),
the bar of the Presidential Order could have no application. So also the plea
that the operative provision of the law under which the order of detention was
made suffered from the vice of excessive delegation, was an independent plea not
relatable to the fundamental rights mentioned in the Presidential Order and its
validity had to be examined.
The plea that s. 3(2)(15)(i) and s. 40 of the
impugned Act suffered from excessive delegation must fail. The legislative
policy was broad stated in the preamble and the relevant provisions of ss. 3(1)
and 3(2) gave detailed and specific guidance to the rule making authority and
it was not correct to say that the Act had by the impugned sections delegated
essentially legislative function to that authority. Rule 30(1)(b) which was
consistent with the operative provisions of the Act could not also be
challenged on that ground.
800 In " The Delhi Laws Act, 1912 etc.
[1951] S.C.R. 747, Harishankar Bagla v. The State of Madhya Pradesh, [1955] 1
S.C.R. 380, Bhatanagars and Co. Ltd., v. The Union of India, [1957] S.C.R. 701,
relied on.
The impugned Act could not also he struck
down as a piece of colourable legislation because the Preventive Detention Act,
1950, was already on the Statute book. The Parliament had power under Entry 9,
List I of the Seventh Schedule to the Constitution and if in view of the grave
threat to the security of India it passed the Act, it could not be said to have
acted malafide.
If the Parliament thought that the executive
would not be able to detain citizens reasonably suspected of prejudicial
activities by a recourse to the Preventive Detention Act, 1950, which provided
for the required constitutional safeguards and the impugned Act which it
enacted did not, it could not be suggested that it was acting malafide. Even if
the impugned Act contravened Arts. 14 and 22 and the detentions there under
wereinvalid, Art. 359(1) and the Presidential Order, which were precisely meant
to meet such a situation, barred investigation on the merits during the period
prescribed by the Order.
The proceeding under s. 491(1)(b) of the Code
is one proceeding and the sole relief that can be claimed under it is release
from the detention. If that could not be claimed because of the Presidential
Order it was unreasonable to say that a mere declaration that the impugned Act
and the detention there under were invalid could be made. Such a declaration is
clearly outside the purview of s. 491(1)(b) of the Code as also of Arts. 226(1)
and 32(l) of the Constitution.
The period for which the emergency should
continue and the restrictions that should be imposed during its continuance are
matters that must inevitably be left to the executive.
In a democratic state the effective safeguard
against any abuse of power in peace as also in emergency is the existence of
enlightened, vigilant and vocal public opinion.
Liversidge v. Sir John Anderson, [19421 A.C.
206, referred to.
The inviolability of individual freedom and
the majesty of law that sustains it are equally governed by the Constitution
which has made this Court the custodian of the fundamental rights on the one
hand and, on the other, provided for the declaration of the emergency.
Consequently, in dealing with the right of a
citizen to challenge the validity of his detention, effect must be given to
Art. 359(1) and the Presidential Order issued under it. The right specified in
that Article must be held to include such right whether constitutional or
constitutionally guaranteed and the words "any court" must include
the Supreme Court and the High Court.
The Punjab and the Bombay High Courts were,
therefore right in their decision that the applications under s. 491(1)(b) of
801 the Code were incompetent in so far as they sought to challenge the
validity of the detentions on the ground that the Act and the Rules under which
the orders were made contravened Arts. 14, 21 and 22(4)(5) and (7) of the
Constitution.
Per Subba Rao, J. It was clear that s.
3(2)(15)(i) of the Defence of India Act, 1962, and r. 30(1)(b) made under the
Act contravened the relevant provisions of Art. 22 of the Constitution and
were, therefore, void.
Deep Chand v. The State of Uttar Pradesh, [1959]
Supp. 2 S.C.R. 840, Mahendra Lal v. State of U.P., A.I.R. 1963 S.C. 1019, A. K.
Gopalan v. State of Madras, [1950] S.C.R. 88, referred to.
Under the Constitution, every person has a
right to move the Supreme Court, the High Courts or any other court or courts
constituted by the Parliament under Art. 32(3) for the enforcement of
fundamental rights in the manner prescribed.
But while the right to move the Supreme Court
is a guaranteed right, the right to move the others is not so.
Article 359, properly construed, meant that
the bar imposed by the Presidential Order applied not only to the guaranteed
right to move the Supreme Court but also the rights to move the other courts
under Art. 32 and Art. 226 of the Constitution.
There is no new rule of construction peculiar
to war measures. It is always the same, whether in peace or in war.
The fundamental rule is that the courts have
to find out the expressed intention of the Legislature from the words of the
enactment itself. Words must be given their natural and ordinary meaning unless
there is ambiguity in the language in which case the court has to adopt that
meaning which furthers the intention of the Legislature.
A constitutional provision such as Art. 359,
however, cannot be given a strained construction to meet a passing phase such
as the present emergency.
Rex v. Halliday, L.R. [19171 A.C. 260,
Liversidge v. Sir John Anderson, L.R. [1942] A.C. 206, Nakkuda A1i v.
jayaratna, L.R. 1951] A.C. 66, Gibbon v.
Ogden, (1824) 6 L.
Ed. 23, discussed.
Section 491 of the Code of Criminal Procedure
is wide in its terms and gives a discretionary power to the High Courts.
Unlike Arts. 32 and 226, the exercise of the
power is not channelled through procedural writs or orders and their
technicalities cannot circumscribe the court's discretion.
Girindra Nath Banerjee v. Birendra Nath Pal,
(1927) I.L.R.
54 Cal. 727, District Magistrate, Trivandrum
v. Mammen Mappillai, I.L.R. 1939 Mad. 708, Matten v. District Magistrate,
Trivandrum, L.R. (1939) 66 I.A. 222, referred to.
Section 491 is continued by Art. 372 and
-Art. 225 preserves 802 the jurisdiction of the High Court. The power it
confers on the High Court is not inconsistent either with Art. 32 or Art. 226
or any other Article of the Constitution and the section cannot, therefore, be
said to have been impliedly superseded even to the extent Art. 226 empowers the
High Court to give relief in cases of illegal detention. Though remedial in
form the section postulates the existence of the substantive right that no person
can be deprived of his liberty except in the manner prescribed by law. It
assumes the existence of the rule of law and empowers High Court to act suo
motu. The rights, substantive and procedural conferred by it arc different from
those under Arts. 32 or 226 of the Constitution. It places the onus on the
custodian to prove that the detention is legal and although in scrutinising the
legality of the detention the court may have to consider whether the law
offends any fundamental rights, that cannot make the proceeding one for the
enforcement of fundamental rights or the decision anything but one on the
unconstitutionality of a law because of infringement of fundamental rights
generally.
The mode of approach to the High Court under
s. 491 of the Code or the nature of the relief given thereunder cannot be
equated with those under the Constitution. The absolute discretionary
jurisdiction under it cannot be put on a par with the jurisdiction under Art.
226 which is hedged in by constitutional limitations.
Alam Khan v. The Crown, (1947) I.L.R. 28
Lahore 274, Ramji Lal v. The Crown, I.L.R..(1949) 11 E.P. 28, King-Emperor v.
Vimlabai Deshpande, (1946) L.R. 73 I.A. 144,
referred to.
While s. 491 gives no right to enforce
fundamental rights, operating as it does as a check on arbitrary action, Art.
359 is concerned not with statutory powers
but deals with the constitutional right and the constitutional enforcement of
it. It was not, therefore, correct to say that Art. 359 would be frustrated if
s. 491 was allowed to stand for Parliament might amend that section any time it
liked.
The expression "right to move any court
for enforcement of such of the rights conferred by Part 111" in Art. 359
must refer only to the right to move under Art. 32 or Art. 226 for the said
specific relief and could not be applied to the exercise of the statutory power
of the High Courts under s.
491 of the Code and, consequently, the
expression "all proceedings pending in any court for the enforcement of
the rights" must refer to the proceedings initiated in exercise of that
right.
The detenus could not, therefore, enforce
their fundamental rights under Arts. 21, 32 and 14 while the Presidential Order
lasted, but that did not affect the High Court's power under s. 491 of the
Code.
The President's Order cannot bar the detenus
from proving even under Arts. 32(l) and 226 that the detentions were not made
803 under the Defence of India Ordinance or the Act as they were outside the
Ordinance or the Act or in excess of the power conferred by them or that the
detentions were made malafide or in fraudulent exercise of power.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 80 of 1963.
Appeals by special leave from the judgment
and order dated March 26, 1963, of the Punjab High Court in Criminal Mis. No.
186 of 1963.
Criminal Appeals Nos. 86 to 93 of 1963.
Appeal by special leave from the judgment and
order dated February 21, 1963 of the Punjab High Court in Criminal Misc.
No. 155, 102, 108, 105, 104, 101 and 107 of
1963 and judgment and order dated February 1963 of the same High Court in
Criminal Misc. No. 99 of 1963.
Criminal Appeals Nos. 109 to 111 of 1963.
Appeals from the judgment and order dated May
31, 1963 of the Maharashtra High Court in Criminal Applications Nos. 217, 218
and 114 of 1963.
Criminal Appeals Nos. 114 to 126 of 1963.
Appeals from the judgment and order dated May
31, 1963 of the Maharashtra High Court in Criminal Applications Nos. 271, 265,
270, 267, 219, 220, 269, 264, 263, 266 and 273 of 1963. Criminal Appeal No. 65
of 1963.
Appeal by special leave from the judgment and
order dated April 3, 1963, of the Maharashtra High Court (Nagpur Bench) in
Criminal Application No. 11 of 1963.
M. C. Setalvad, N. C. Chatterjee, A. V.
Viswanatha Sastri, S. Mohan Kumaramangalam, C. B. Agarwala, Sarjoo Prasad, D. R.
Prem, A. S. R. Chari, S. G. Patwardhan, W. S. Barlingay, Etharajalu Naidu, Veda
Vyas, Raghubir Singh, K. T . Sule, Asif Ansari, Hardayal Hardy, Bawa Shiv
Charan Singh, S. N. Mukherjee, Durgabhai Deshmukh, M. S. K. Sastri, G. B. Rai,
Ganpat Rai, D. N. Mukherjee, A. N. Sinha, Udayaratnam, K. V. Raghnatha Reddy,
Janardhan Sharma, K. R. Choudhury, B. P. Maheshwari, I. B. Goyal, I. K. Nag, Y.
Kumar, Hardev Singh,, M. I. Khowaja, S. S. Shukla, K. K. lain, Bishambar Lal
Khanna, S. Murthi, P. K. Chakravarti, P. K. Chatterjee, A. George Pudussary,
Girish Chandra Mathur, Udai Pratap 804 Singh,Yogeshwar Prasad,M. R. Krishna
Pillai, B. D.Sharma, K. P. Gupta, T. S. Venkataraman, M.
Veerappa,T.R.Ramachandra, R. C. Prasad, Santosh Chatterjee,N.N. Keshwani, K.
Jayaram, R. Ganapathy Iyer, Thyagarajan, R. Vasudeva Pillai, R. V. S. Mani, S.
C. Majumdar, Shaukat Hussain, K. Baldev Mehta, Mohan Behari Lal, Sadhu Singh,
V. G. Row, S. N. Kakkar, S. K. Kapur, Parthasarathy, Shanti Swarup Bhatnagar,
K. L. Mehta, Satish Mehta, Brij Kishore Prasad, Ali Ahmad, V. A. Syeid
Muhammad, Narayanarayan Gooptu, Tapesh Roy, Madhan Bhaittia, Ajit Singh Banis
and Brij Raj Kishore, J. B. Dadachanji O. C. Mathur, Ravinder Narain, D. P.
Singh, M. K. Ramamurthi, R. K. Garg, and S. C. Agarwal, for the appellant (in
Cr. A. No. 80 of 1963).
C. K. Daphtary, Attorney-General, L. K.
Kaushal, Deputy Advocate-General, Punjab, D. D. Chaudhuri, R. N. Sachthey and
R. H. Dhebar, for the respondent (in Cr. A. No. 80 of 1963).
A. S. R. Chari, D. P. Singh, M. K.
Ramamurthi, R. K. Garg and S. C. Agarwal for the appellant (in Cr. A. No. 86 of
1963).
Hardev Singh and Y. Kumar, for the appellants
(in Cr. A. Nos. 87 to 93 of 1963).
L. D. Kaushal, Deputy Advocate-General,
Punjab, D.D.Chaudhri, R. N. Sachthey and R. H. Dhebar, for the respondent (in
Cr. A. Nos. 86 to 93 of 1963).
A. S. R. Chari, 0. P. Malhotra, B.
Parthasarathy, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the
appellant (in Cr. A. No. 65 of 1963).
N. C. Chatterjee, and Janardan Sharma, for
the appellant (in Cr. A. No. 109 of 1963).
K. T. Sule, Jitendra Sharma and Janardan
Sharma, for the appellants (in Cr. A. Nos. 111 and 114 to 126 of 1963) and for
the Detenue-Interveners Nos. 12, 14, 16, 18 and 37).
C. K. Daphtary, Attorney-General, N. S.
Bindra, B. R. G. K. Achar, R. N. Sachthey and R. H. Dhebar, for the respondents
(in Cr. A. No. 65, 109 to 111 and 114 to 126/1963).
C. K. Daphtary, Attorney-General, H. N.
Sanyal, SolicitorGeneral, S. V. Gupte, Additional Solicitor-General,
R.N.Sachthey and R. H. Dhebar, for intervener No. 1 Naunit Lal, for intervener
No. 1.
B. Sen and P. K. Bose, for intervener No. 3.
S. P. Varma, for intervener No. 4.
M. Adhikari, Advocate-General, Madhya Pradesh
and I.N.Shroff, for intervener No. 5.
A. Ranganadham Chetty and A. F. Rangam, for
intervener No. 6.
G. C. Kasliwal, Advocate-General, Rajasthan,
R. H.Dhebar, R. N. Sachthey, for intervener No. 7.
C. P. Lal, for intervener no. 8.
N. C. Chatterjee, Narayan Gooptu, Tapesh Roy,
D. P.Singh, M. K. Ramamurthi, R. K. Garg and S. C. Agarwal, for intervener No.
69.
A. S. R. Chari, Narayan Gooptu, Tapesh Roy,
D. P. Singh, M. K. Ramamurthi, R. K. Garg and S. C. Agarwal, for intervener No.
70.
A. S. Peerbhoy A. Desai, M. Rajagopalan and
K. R. Choudhari, for interveners Nos. 79 and 80.
September 2, 1963. The judgment of P. B.
Gajendragadkar, A. K. Sarkar, K. N. Wanchoo, M. Hidayatullah,B. Gajendragadkar,
J. K. Subba Rao, J. delivered a dissenting Opinion.
GAJENDRAGADKAR, J.--This group of 26 criminal
appeals has been placed for hearing and disposal before a special
Constitutional Bench, because the appeals constituting the group raise two
common important questions of Constitutional law. Nine of these appeals have
been preferred against the decisions of the Punjab High Court, whereas
seventeen have been preferred against the decisions of the Bombay High Court.
All the appellants are detenues who have been detained respectively by the
Punjab and the Maharashtra State Governments under Rule 30(1)(b) of the Defence
of India Rules (hereinafter called the Rules) made by the Central Government in
exercise of the powers conferred on it by section 3 of the Defence of India
Ordinance, 1962 (No. 4 of 1962) (hereinafter called the Ordinance). They
applied to the Punjab and the Bombay High Courts respectively under section 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)(1) and
s.
40 of the Defence 806 of India Act, 1962 (No.
51 of 1962) (hereinafter called 'the Act') and Rule 36(1)(b) under which they
have been detained are constitutionally invalid, because they contravene their
fundamental rights under Articles 14, 21 and 22(4), (5) & (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. These
petitions have been dismissed on the ground that the Presidential Order which
has been issued under Art. 359 of the Constitution creates a bar which
precludes them from moving the High Court under s. 491 (1) (b) Cr. P. C. That
is how the decisions of the two High Courts under appeal raise two common
questions of considerable importance. The first question is : what is the true
scope and effect of the Presidential Order which has been issued under Art. 359
(1) ? The answer to this question would depend upon a fair and reasonable
construction of Art. 359(1) itself. The second question is : does the bar
created by the Presidential Order issued under Art. 359(1) operate in respect
of applications made by detenues under section 491 (1) (b) of the Code? The
answer to this question would depend upon the determination of the true
character of the proceedings which the detenues have taken under s. 491(1)(b),
considered in the light of the effect of the Presidential Order issued under
Art.
359(1). Both the Punjab and the Bombay High
Courts have held against the appellants. Meanwhile, when similar petitions were
made before the Allahabad High Court in Criminal Cases Nos. 1618, 1759 and 1872
of 1963 Sher Singh Negi v. District Magistrate, Kanpur & Anr., the said
High Court took a contrary view and directed the release of the detenues who had
moved it under s. 491 (1) (b) of the Code.
It is because the questions raised are
important and the answers given by the different High Courts have disclosed a
sharp difference of opinion that a Special Bench has been constituted to deal
with these appeals. If the two principal questions are answered in favour of
the detenues, a third question would arise and that relates to the validity of
the impugned sections of the Act and the relevant statutory Rules.
On the 8th September, 1962, the Chinese
aggressively attacked the northern border of India and that constituted a
threat to the security of India. That is why on 807 the 26th October, 1962, the
President issued a Proclamation under Art. 352 of the Constitution. This
Proclamation declared, that a grave emergency existed whereby the security of
India was threatened by external aggression. On the same day, the Ordinance was
promulgated by the President. This Ordinance was amended by Ordinance No. 6 of
1962 promulgated on November 3, 1962. On this day, the President issued the
Order under Art. 359(1), suspending the rights of citizens to move any Court
for the enforcement of the rights conferred by Arts. 21 and 22 of the
Constitution for the period during which the proclamation of emergency issued
on October 26, 1962 would be in force. On November 6, 1962, the rules framed by
the Central Government were published. Then followed an amendment of the
Presidential Order on November 11 1962. By this amendment, for the words and
figures "article 21" the words and figures "articles 14 and
21" were substituted. On December, 6, 1962, Rule 30 as originally framed
was amended and Rule 30-A added. Last came the Act on December 12 1962. Section
48(1) of the Act has provided for the repeal of the Ordinances Nos. 4 and 6 of
1962. Section 48(2) provides that notwithstanding such repeal, any rules made,
anything done or any action taken under the aforesaid two Ordinances shall be
deemed to have been made, done or taken under this Act as if this Act had
commenced on October 26, 1962. That is how the Rules made under the Ordinance
continued to be the Rules under the Act, and it is under Rule 30(1) (b) that
the appellants have been detained.
Before dealing with the points which have
been raised for our decision in the present appeals, it is necessary to
indicate briefly at the outset the general argument which has been urged before
us by Mr. Setalvad on behalf of the appellants, and the learned
Attorney-General on the other side. Art. 359(1.) which falls to be construed,
occurs in Part XVIII of the Constitution which makes emergency provisions.
Whenever the security of India or any part of the territory of India is
threatened whether by war or by external aggression or internal disturbance,
the President may, under Art. 352, by proclamation, make a declaration to -,hat
effect. Articles 353 to 360 which occur in this Part thus constitute emergency
provisions. The learned 808 Attorney-General contends that in construing an
emergency provision like Art. 359(1), we must bear in mind the fact that the
said Article is intended to deal with a situation which has posed a threat to
the security of India, and so, fundamental rights guaranteed by Part III which
are undoubtedly of vital importance to the democratic way of life guaranteed by
the Constitution have to be regulated during an emergency, because the very
security of the nation is exposed to serious jeopardy. The security of the
nation on such a solemn occasion must have precedence over the liberty of the
individual citizens, and so, it is urged that if Art.
359 is capable of two constructions, one in
favour of the fundamental rights of the citizens, and the other in favour of
the grant of power to the President to control those rights, the Court should
lean in favour of the grant rather than in favour of the individual citizen's
fundamental rights.
In support of this argument, the learned
Attorney-General has relied on two decisions of the House of Lords. In The King
(At the Prosecution of Arthur Zadig) v. Halliday,(1) Lord Finlay L. C. who was
called upon to construe Regulation 14B of the Defence of the Realm
(Consolidation) Regulations Act, 1914, noticed the argument that if the
Legislature had intended to interfere with personal liberty, it would have
provided, as on previous occasions of national danger, for suspension of the
rights of the subject as to a writ of habeas corpus, and rejected it with the
observations that the Legislature -bad selected another war of achieving the
same purposes, probably milder as well as more effectual than those adopted on
the occasion of previous wars. He added that the suggested rule as to
construing penal statutes and the provision as to trial of British subjects by
jury made by the Defence of the Realm Act, 1915, have no relevance in dealing
with an executive measure by way of preventing a public danger.
The majority decision of the House of Lords
in Liversidge v. Sir John Anderson (2 ) has also been relied upon by the
learned Attorney-General. In that case, the House or Lords had to consider the
true scope and effect of Regulation 18B of the Defence (General) Regulations,
1939.
(1) [1917] A.C. 260, 270.
(2) [1942] A.C. 206.
809 Viscount Maugham in I rejecting the
argument of the detenu that the liberty of the subject was involved and that
the legislation dealing with the liberty of the subject must be construed, if
possible, in favour of the subject and against the Crown, quoted with approval
the language of Lord Finlay, L. C., in the case of Rex v. Halliday(1). Lord
Macmillan who took the same view observed that it is right so to interpret
emergency legislation as to promote rather than to defeat its efficacy for the
defence of the realm. That is in accordance with a general rule applicable to
the interpretation of all statutes or statutory regulations in peace time as
well as in war time. Lord Wright and Lord Romer adopted the same approach. The
Attorney-General relies on the fact that this approach has also been adopted by
Gwyer, C. J., in Keshav Talpade v. The King Emperor(2)..
In making his contention in regard to the
proper approach.
which the Court should adopt in construing
Art. 359, the learned Attorney-General no doubt contended that the question
about the approach would arise only if two constructions are reasonably
possible. According to him, Art. 359 was capable of only one construction and
that is the construction which the High Courts of Punjab and Bombay have
accepted.
On the other hand, Mr. Setalvad has argued
that Art. 359 is not an emergency -legislation properly so called and on the
merits, he has strongly resisted the suggestion made by the learned
Attorney-General that if two reasonable constructions are possible, we should
adopt that which is in favour of the grant of power to the President and not in
favour of the citizens fundamental rights. He has relied on the minority speech
of Lord Atkin in the case of Liversidge(3) and has argued that the view taken
by Lord Atkin should be preferred to the majority view which the House of Lords
adopted in that case. "In this country", observed Lord Atkin,
"amid the clash of arms, the laws are not silent. They may be changed, but
they speak the same language in war as in peace. It has always been one of the
pillars of freedom, one of the principles of liberty for which on recent
authority we are now fighting, that the judges are no respecters of persons and
stand between (1) [1917] A.C. 260, 270.
(3) [1942] A.C. 206.
(2) [1943] F.C.R. 49, 63.
52-2 S. C. lndia/64 810 the subject and any
attempted encroachments on his liberty by the executive, alert to see that any
coercive action is justified in law. In this case, I have listened to arguments
which might have been addressed acceptably to the Court of King's Bench in the
time of Charles I." Realising that he was in a minority, Lord Atkin added that
he protested, even if he did it alone, against a strained construction put on
words with the effect of giving ail uncontrolled power of imprisonment to the
Minister. In this connection, Mr. Setalvad referred to two subsequent decisions
of the Privy Council in which the view taken by Lord Atkin has been accepted,
vide Nakkuda Ali v. M. F. De S. layaratne(1), and King-Emperor v. Vimalabai
Deshpande(2).
In the former case, Lord Radcliffe observed
that indeed, it would be a very unfortunate thing if the decision of
Liversidge's case came to be regarded as laying down any general rule as to the
construction of such phrases when they appear in statutory enactments, and he
added that the said decision is an authority for the proposition that the words
"if A. B. has reasonable cause to believe" are capable of meaning
"if A. B. honestly thinks that he has reasonable cause to believe"
and that in the context and attendant circumstances of Defence Regulation 18B
they did in fact mean just that. In distinguishing the said decision, Lord
Radcliffe made the somewhat significant comment that the elaborate
consideration which the majority of the House gave to the context and
circumstances before adopting that construction itself shows that there is no
general principle that such words are to be so understood. Mr. Setalvad has
also invited our attention to the fact that the majority decision of the House
of Lords in Liversidge(3) has not received the approval from jurists, (vide
Maxwell on Interpretation of Statutes p. 276, footnote 54, Craies on Statue Law
p. 309, and Friedmann, Law in a Changing Society p. 37.) Like the
Attorney-General, Mr. Setalvad also urged that the stage to choose between two
rival constructions would not arise in the present appeals because, according
to him, the construction for which he contended was the only reasonable
construction of Art. 359.
(1) [1951] A.C. 66, 76. (2) 73 I.A. 144.
(3) [1942] A.C. 206.
811 In our opinion, it is unnecessary to
decide the merits of the rival contentions urged before us in regard to the
rule of construction and the approach which the Court should adopt in
construing Art. 359. It is common ground that the question of approach would
become relevant and material only if we are satisfied that Art. 359 is reasonably
capable of two alternative constructions. As we will presently point out, after
hearing counsel on both sides, we have reached the conclusion that Art. 359 is
reasonably ,capable of only one construction and that is the construction which
has been put on it by the Punjab and Bombay High Courts. That is why we are
relieved of the task of dealing with the merits of the controversy between the
parties on this point.
Let us then revert to the question of
construing Art. 359.
In doing so, it may be relevant and somewhat
useful to compare and contrast the provisions of Articles 358 and 359.
Indeed, both Mr. Setalvad and the learned
Attorney-General contended that Art. 359 should be interpreted in the light of
the background supplied by the comparative examination of the respective
provisions contained in Arts. 358 and 359 (1) & (2). The said two Articles
read as under :"358. While a Proclamation of Emergency is in operation,
nothing in article 19 shall restrict the power of the State as defined in Part
III to make any law or to take any executive action which the State would but
for the provisions contained in that Part be competent to make or to take, but
any law so made shall, to the extent of the competency, cease to have effect as
soon as the Proclamation ceases to operate, except as respects things done or
omitted to be done before the law so ceases to have effect 359-(1) Where a
Proclamation of Emergency is in operation, the President may by order declare
that the right to move any Court for the enforcement of such of the rights
conferred by Part III as may be mentioned in the order and all proceedings
pending in any court for the enforcement of the rights so mentioned shall
remain suspended for the period during which the Proclamation is in force or
for such shorter period a may be specified in the order.
812 (2)Any order made as aforsesaid may
extend to the whole or any part of the territory of India." It would be
noticed that as soon as a Proclamation of Emergency has been issued under Art.
352 and so long as it lasts, Art. 19 is suspended and the power of the legislatures
as well as the executive is to that extent made wider. The suspension of Art.
19 during the pendency of the Proclamation of emergency removes 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. 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 which was
suspended during the emergency is automatically revived and begins to operate.
Article 358, however, makes it clear that things done or omitted to be done
during the emergency cannot be challenged even after the emergency is over In
other words, the suspension of Art.
19 is complete during the period in question
and legislative and executive action which contravenes Art. 19 cannot be
questioned even after the emergency is over.
Article 359, on the other hand, does not
purport expressly to suspend any of the fundamental rights. It authorises the
President to issue an order declaring that the right to move any court for
enforcement of such of the rights in 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. What
the Presidential Order purports to do by virtue of the power conferred on 'the
President by Art. 359(1) is to bar the remedy of the citizens to move any court
for the enforcement of the specified rights. The rights are not expressly
suspended, but the citizen is deprived of his right to move any court for their
enforcement. That is one important 813 distinction between the provisions of
Art. 358 and Art. 359(1).
Before proceeding further, we may at this
stage, in parenthesis, observe that there has been some argument before us on
the question as to whether the fundamental rights specified in the Presidential
Order issued under Art.
359 are even theoretically alive during the
period specified in the said Order. The learned Attorney-General has contended
that the suspension of the citizens' right to move any court for the
enforcement of the said rights, in law, amounts to the suspension of the said
rights themselves for the said period. We do not propose ,to decide this
question in the present appeals. We will assume in favour of the appellants
that the said rights -arc, in theory, alive and it is on that assumption that
we 'will deal with the other points raised in the present appeals.
The other distinction lies in the fact that
the suspension of Art. 19 for which Art. 358 provides continues so long as the
Proclamation of Emergency is in operation, whereas the suspension of the right
to move any court which the Presidential Order under Art. 359(1) brings about
can last either for the period of the Proclamation or for a shorter period if
so specified by the Order.
It would be noticed that the Presidential
Order cannot widen the authority of the legislatures or the executive; it
merely suspends the rights to move any court to obtain a relief on the ground
that the rights conferred by Part III have been contravened if the said rights
are specified in the Order. The inevitable consequence of this position is that
as soon as the Order ceases to be operative, the infringement of the rights
made either by the legislative enactment or by executive action can perhaps be
challenged by, a citizen in a court of law and the same may have to be tried on
the merits on the basis that the rights alleged to have been infringed were in
operation even during the pendency of the Presidential Order. If at the
expiration .of the Presidential Order, Parliament passes any legislation to
protect executive action taken during the pendency, of the Presidential Order
and afford indemnity to the executive in that behalf, the validity and the
effect of such legislative action may have to be carefully scrutinised.
814 Since the object of Art. 359(1) is to
suspend the rights of the citizens to move any court, the consequence of the
Presidential Order may be that any proceeding which may be pending at the date
of the Order remains suspended during the time that the Order is in operation
and may be revived when the said Order ceases to be operative; and fresh
proceedings cannot be taken by a citizen after the Order has been issued,
because the Order takes away the right to move any court and during the
operation of the Order, the said right cannot be exercised by instituting a
fresh proceeding contrary to the Order. If a fresh proceeding failing within
the mischief of Art. 359(1) and the Presidential Order issued under it is
instituted after the Order has been issued, it will have to be dismissed as
being incompetent.
In other words, Art. 359(1) and the
Presidential Order issued under it may constitute a sort of moratorium or a
blanket ban against the institution or continuance of any legal action subject
to two important conditions. The first condition relates to the character of
the legal action and requires that the said action must seek to obtain a relief
on the ground that the claimant's fundamental rights specified in the
Presidential Order have been contravened, and the second condition relates to
the period during which this ban is to operate. The ban operates either for the
period of the Proclamation or for such shorter period as may be specified in
the Order.
There is yet another distinction between the
provisions of Art. 358 and Art. 359(1). The suspension of Art'. 19 for which,
provision is made under Art. 358 applies to the whole of the country, and so,
covers all legislatures and also States. On the other hand, the Order issued
under Art.
359(1) may extend to the whole of India or
may be confined to any part of the territory of India. These, -broadly stated,
are the points of distinction between Art. 358 and Art. 359(1), What then is
the true scope and effect of, Art. 359(1).? Mr. Setalvad contends 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 should be -construed to mean the
right to move the Supreme Court which has been guaranteed by Art. 32(1). He
suggests that as one reads the relevant clause in Art. 359(1), one seems 815 to
hear the echo of the right which has been constitutionally guaranteed by Art.
32(1). His argument, therefore, is that the only right of which a citizen can
be deprived under Art. 359(1) is the right to, move the Supreme Court, and so,
his case is that even in regard to fundamental rights specified in the
Presidential Order, a citizen is entitled to ask for reliefs from the High
Court under Art.
226 because the right to move the High Court
flowing from Art. 226 does not fall within the mischief of Art. 359(1).
This argument attempts to interpret the words
"the right to move for the enforcement of the specified rights" in
isolation and without; taking into account the other words which indicate that
the right to move which is specified in the said Article is the right to move
"any courts$. In plain language, the words "any court" cannot
mean only the Supreme Court they would necessarily take in all courts of
competent jurisdiction. If the intention of the Constitution makers was to
confine the operation of Art.
359(1) to the right to move only the Supreme
Court, nothing could have been easier than to say so expressly instead of using
the wider words "the right to move any court.') To meet this difficulty, Mr.
Setalvad attempted to invoke the assistance of Art.. 32(3). Art. 32(3) provides
that without prejudice to the: powers conferred on the Supreme Court by clauses
(1) and' (2), Parliament may by law empower any other court, to exercise within
the local limits of its jurisdiction all or any of the powers exercisable by
the Supreme Court under clause (2). The argument is that the Constitution
-contemplates that there may be some other courts in the country on which the
powers exercisable by the Supreme Court under Art. 32(2) may be conferred, and
so, the words "any court" may have been intended to take within their
purview the Supreme Court and such other courts oil whom the Supreme Courts
powers under Art. 32(2) may have been conferred. This argument is fallacious.
The scheme of Art. 32 clearly indicates that the right to move this Court which
itself is a guaranteed fundamental right,, cannot be claimed in respect of
courts falling under Art. 32(3). Art.
32(3) merely provides for the conferment of
this Court's 816 powers under Art. 32(2) on the courts specified in clause (3).
The right guaranteed by Art. 32(1) cannot be claimed in respect of the said
other courts. Therefore, oh a plain construction of the relevant clauses of
Art. 32, it is impossible to accept the argument that courts under Art.
32(3) must be regarded as having the same
status as the Supreme Court and as such the right to move them must also be
held to constitute a fundamental right of the citizen in respect of such
courts. Besides, it would be irrational to suggest that whereas the
Constitution did not confer on the citizens a guaranteed fundamental right to
move the High Court under Art. 226, it thought of conferring such a guaranteed
fundamental right in regard to courts on which the Supreme' Court's powers
under Art. 32(2) would be conferred by Art. 32(3). Therefore, the attempt to
suggest that 'the use of the words "any Court" used in Art. 359(1) is
justified because they take in the Supreme Court and some other courts, fails
and the conclusion inevitably follows that the words "any court" must
be given their plain grammatical meaning and must be construed to mean any
court of competent jurisdiction. In other words the words "any court"
include the Supreme Court and the High Courts before which the specified rights
can be enforced by the citizens.
In this connection, it was attempted to be
argued that the power of the High Court to issue the writs or orders specified
in Art. 226(1) is a discretionary power and as such, no citizen can claim to
have a right to move the High Court in that behalf, and'. so, it was suggested
that the proceedings contemplated by Art. 226(1) are outside the purview of
Art. 359(1). In our opinion, this argument is not well-founded. It is true that
in issuing writs or orders under Art. 226(1), the High Courts have discretion
to decide whether a writ or, %,order should be issued as claimed by the
petitioner; but the discretion conferred on the High Courts in that behalf has
to be judicially exercised, and having regard to the scheme of Art. 226(1), it
cannot be said that a citizen. has no right to move the High Court for invoking
its jurisdiction under Art. 226(1); Art.
226(1) confers wide powers on the High Courts
to issue the specified writs, or other appropriate orders or directions;
having regard to the nature of the said
powers, 817 and the object intended to be achieved by their conferment there
can be little doubt that in dealing with applications made before them the High
Courts have to exercise their discretion in a judicial manner and in accordance
with principles which are well-settled in that behalf. The High Courts cannot
capriciously or unreasonably refuse to entertain the said applications and to
deal with them on the merits on the sole ground that the exercise of their
jurisdiction under Art. 226(1) is discretionary. Therefore, it is idle to
suggest that the proceedings taken by citizens under Art. 226(1) are outside
the purview of Art. 359(1).
We must accordingly hold that the right to
move any court under Art. 359(1) refers to the right to move any court of
competent jurisdiction.
The next question to consider is, what is the
nature of the proceedings which are barred by the Presidential Order issued
under Art. 359(1) ? They are proceedings taken by citizens for the enforcement
of such of the rights conferred by Part III as may be mentioned in the order.
If a citizen moves any court to obtain a relief on the ground that his
fundamental rights specified in the Order have been contravened, that
proceeding is barred. In determining the question as to whether a particular
proceeding falls within the mischief of the Presidential Order or not, what has
to be examined is not so much the form which the proceeding has taken, or the
words in which the relief is claimed, as the substance of the matter and
consider whether before granting the relief claimed by the citizen, it would be
necessary for the Court to enquire into the question whether any of his
specified fundamental rights have been contravened. If any relief cannot be
granted to the citizen without determining the question of the alleged
infringement of the said specified 'fundamental rights, that is a proceeding
which falls under Art. 359(1) and would, therefore, be hit by the Presidential
Order issued under the said Article. The sweep ,of Art. 359(1) and the
Presidential Order issued under it is thus wide enough to include all claims
made by citizens in any court of competent jurisdiction when it is shown that
the said claims cannot be effectively adjudicated upon without examining the
question as to whether the citizen is in substance, seeking to enforce any of
the 818 said specified fundamental rights. We have already seen that the operation
of Art. 359(1) and the Presidential Order issued under it is limited to the
period during which the proclamation of emergency is in force, or for such
shorter period as may be specified in the Order. That being so, we feel no
difficulty in holding that proceedings taken by a citizen either under Art.
32(1) or under Art. 226(1) are hit by Art. 359(1) and the Presidential Order
issued under it.
In this connection it would be legitimate to
add that the contention of the appellants which seeks to confine the operation
of Art. 359(1) only to the right to move the Supreme Court, would make the said
provision almost meaningless. There would be no point in preventing the citizen
from moving this Court, while leaving it open to him to move the High Courts
for the same relief and then to come to this Court in appeal, if necessary.
That takes us to the question as to whether
proceedings taken by a citizen under s. 491(1)(b) are affected by Art.
359(1) and the Presidential Order issued
under it. Section 491 (1) (b), inter alia, provides that any High Court may,
whenever it thinks fit, direct that a person illegally or improperly detained
in public custody be set at liberty. It has been strenuously urged before us
that the proceedings for obtaining directions of the nature of habeas corpus
which are taken under s. 491 (1) (b) are outside Art.
359(1), and so, the Presidential Order cannot
create a bar against a citizen asking the High Court to issue a writ in the
nature of habeas corpus under the said provision. It is necessary to examine
this argument very carefully.
It is well-known that after section 491 was
enacted in the Code of Criminal Procedure in the present form in 1923, the
right to obtain a direction in the nature of a habeas corpus became a statutory
right in India. After 1923, it was not open to any party to ask for a writ of
habeas corpus as a matter of common law. This question was elaborately
considered by Rankin, C. J., in Girindra Nath Banerjee v. Birendra Nath Pal(1),
where the learned C.J. considered the history of the development of the law on
this point and came to the conclusion that the relief of a writ in the nature
of a habeas corpus could be claimed (1) I.L.R. 54 Cal. 727.
819 after 1923 solely under Cr. P. C. The
same view was taken by a full Bench of the Madras High Court in District
Magistrate, Trivandrum v. K. C. Mammen Mappillal(1), where the said High Court
held that it had no power to issue a writ of habeas corpus as known to the
English Common Law.
Its powers are confined in that respect to
those conferred by s. 491 of the Code of Criminal Procedure which gives
authority to issue directions of the nature of habeas corpus. When this point
was raised before the Privy Council in Matthen v. District Magistrate of
Trivandrum (2), their Lordships observed that the reasoning of Rankin C.J. in
the case of Girindra Nath Banerjee(3) was so clear and convincing that they
were content to adopt it, as also to state that they were in entire agreement
with the views expressed by him. The same view was expressed by the Privy
Council in King-Emperor v. Sibnath Banerji(4). Basing himself on these
decisions, Mr. Setalvad contends that the statutory right to obtain relief
under s. 491 (1) (b) is a right which is separate and distinct from the
Constitutional right guaranteed by the relevant Articles of the Constitution,
and so, Art. 359(1) cannot be said to apply to the proceedings under s. 491 (1)
(b).
In support of the same contention, Mr.
Setalvad has also pressed into service the provisions of Art. 372 by which the
existing laws are continued and he has invited our attention to the provisions
of Art. 225 and 375 to show that the jurisdiction conferred on the High Courts
by s. 491 Cr. P.
C. continues unless it is expressly taken
away by a competent piece of legislation.
In this connection, reliance has also been
placed on the fact that in the past whenever the operation of s. 491 was
intended to be suspended, the legislature made a specific provision in that
behalf and as an illustration, reference is made to s. 10 of the Restriction
and Detention Ordinance, 1944 (No, III of 1944). Section 10 specifically refers
to s. 491 of the Code and provides that no Court shall have power to make any
order under the said section in respect of any order made under or having,
effect under the Ordinance, or in respect of any person the subject of such an
order.
It is urged that the Presidential Order is
con(1) I.L.R. 1939 Mad. 708(2) 66 I.A. 222.
(3) I.L.R. :54 Cal, 727.(4) 72 I.A. 241.
820 fined only to proceedings taken for
enforcement of constitutional rights and if it was intended that the
proceedings under s. 491(1)(b) should also be prohibited, it was essential that
the said provision should, in terms, have been suspended by a competent piece
of legislation.
Mr. Setalvad has also emphasised the fact
that the approach in dealing with a proceeding under s. 491(1)(b) is different
from the approach which the courts adopt in dealing with proceedings under Art.
226 or Art. 32. In invoking the Jurisdiction of the High Courts under Art.
226(1), or that of the Supreme Court under Art. 32(1), the Courts always
enquire whether the party concerned is aggrieved by the order against which
complaint is made. Under s. 491(1)(b), however, the court can take action suo motu
and that brings out the difference in the character of the two respective
categories of proceedings. That, broadly stated, is the manner in which Mr.
Setalvad has raised his contention that proceedings under s. 491 (1) (b) are
outside the purview of the Presidential Order and do not fall within the
mischief of Art. 359(1).
There is no doubt that the right to ask for a
writ in the nature of habeas corpus which could once have been treated as a
matter of Common Law has become a statutory right after 1923, and as we have
already seen after s. 491 was introduced in the Cr. P. C., it was not open to
any citizen in India to-claim the writ of habeas corpus on grounds recognised
by Common Law apart from the provisions of s.
491(1)(b) itself. It has, however, been
suggested by the learned Attorney-General that just as the common law right to
obtain a writ of habeas corpus became a statutory right in 1923, a part of the
said statutory .tight has now become a part of the fundamental rights
guaranteed by the Constitution, and so, after the Constitution came into force,
whenever a detenu claims to be released from illegal or improper' detention,
his claim can, in some cases, be sustained on the ground that illegal or
improper detention affects his fundamental rights guaranteed by Arts. 19, or 21
or 23 as the case may be. If that be so, it would not be easy to accede to the
argument that the said part of the statutory right recognised by s. 491(1)(b)
retains its distinctive and independent character even after 821 the Constitution
came into force to such an extent that it cannot be said to form part of the
fundamental rights guaranteed by the Constitution.
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) or Art. 32(1) of the Constitution, or he may
take a proceeding under s.491(1)(b) of the Code. But it seems to us that
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.
It is no doubt urged that under s. 491 (1)
(b) a stranger can apply for the release of a detenu improperly or illegally
detained, or the Court itself can act suo motu.
This argument is based on the provision that
the High Court may, whenever it thinks fit, issue the appropriate direction.
The learned Attorney-General contended that the clause "whenever it thinks
fit" postulates that some application or petition has been filed before
the Court and on perusing the application or petition it appears to the Court
fit to take the appropriate action. In other words, his argument is that the
Court cannot take suo motu action under s. 491(1)(b). He has also urged that a
third person may apply, but he must show that he has been duly authorised to
act on behalf of the detenu or he must at least purport to act on his behalf.
We do not think it necessary to express any opinion on this part of the
controversy between the parties. We are prepared to assume that the court can,
in a proper case, exercise its power under s. 491(1)(b) suo motu, but that, in
our opinion, does not affect the decision of the question with which we are
concerned. If Art. 359(1) and the Presidential Order issued under it govern the
proceedings taken under s. 491 (1) (b), the fact that the court can act suo
motu will not make any difference to the legal position for the simple reason
that if a party is precluded from claiming his release on the ground set out by
him in his petition, the 822 Court cannot, purporting to act suo motu, pass any
order inconsistent with the provisions of Art. 359(1) and the Presidential
Order issued under it. Similarly, if the proceedings under s. 491(1)(b) are hit
by Art. 359(1) and the Presidential Order, the arguments based on the
provisions of Art. 372 as well as Arts. 225 and 375 have no validity. The
obvious and the necessary implication of the suspension of the right of the
citizen to move any Court for enforcing his specified fundamental right.-, is
to suspend the Jurisdiction of the Court pro tanto in that behalf.
Let us take a concrete case which will
clearly bring. out the character of the proceedings taken by the detenues in
the present cases. An application is made on behalf of the detenu that he is
illegally or improperly detained. The State in its return pleads that the
detention is neither illegal nor improper because it has been effected under
rule 30(1) (b), and in support of this return reliance is placed on the
provisions of s. 3(2)(15)(i) of the Act. On receiving this return, it is urged
on behalf of the detenu that the provisions of s. 3(2)(15)(i) as well as Rule
30(1)(b) are invalid because they contravene the fundamental rights guaranteed
to the citizens under Arts. 14, 21 and 22 and so, the sole issue which falls to
be determined between the parties relates to the validity of the relevant
statutory provisions and Rules. If the impugned provisions in the Act and the
Rules are ultra Vires the detention is illegal and improper, but if, on the
other hand, the said provisions are valid, the detention is legal and proper.
In deciding this point, the Court will naturally have to take into account the
provisions of s. 45(1) of the Act. Section 45(1) provides that no order made in
exercise of any power conferred by or under this Act shall be called in
question in any Court; and the reply of the detenu inevitably would be that
notwithstanding this provision, the validity of the impugned legislation must
be tested. This clearly brings out the true nature and character of the dispute
which is raised before the Court by the detenu in asking for the issue of a
writ of habeas corpus in the present proceedings.
The question which thus arises for our
decision is, can it be said that the proceedings taken under s. 491 (1) (b) are
823 of such a distinctly separate character that they cannot fall under Art.
359(1) ? Under s. 491 as it stood before the date of the Constitution, it would
have been open to the detenu to contend that the law under which he was
detained was invalid, because it was passed by a legislature without
legislative competence. The validity of the law might also have been challenged
on the ground that the operative provision in the law suffered from the vice of
excessive.delegation. The detenu might also have urged that in detaining him
the mandatory provisions under the Act had not been complied with. But before
the Constitution was adopted, it would not have been open to the detenu to
claim that the impugned law was invalid because it contravened his fundamental
rights guranteed by the relevant Articles of the Constitution. The right to
challenge the validity of a statute on the ground that it contravenes the
fundamental rights of the citizens has accrued to the citizens of this country
only after and as a result of the provisions of the Constitution itself, and
SO, there can be no doubt that when in the present proceedings the detenues
seek to challenge the validity of the impugned statutory provision and the
Rule, they are invoking their fundamental rights under the Constitution. If s.
491. is treated as standing by itself and apart from the provisions of the
Constitution, the plea raised by the detenues cannot be entertained in the
proceedings taken under that section ; it is only when the proceedings taken
under the said section are dealt with not only in the light of s. 491 and of
the rights which were available to the citizens before 1950, but when they are
considered also in the light of the fundamental rights guaranteed by the
Constitution that the relevant plea can be raised. In other words, it is clear
that the content of the detenu's right to challenge the legality of his
detention which was available to him under s. 491(1)(b) prior to the Constitution,
has been enlarged by the fundamental rights guaranteed to the citizens by the
Constitution, and so, whenever a detenu relies upon his fundamental rights even
in support of his petition made under s. 491(1)(b) he is really enforcing the
said rights and in that sense, the proceedings inevitably partake of the
character of proceedings taken by the detenu for enforcing these rights; that
is why the argument that Art. 359(1) 824 and the Presidential Order issued
under it do not apply to the proceedings under s. 491(1)(b) cannot be
sustained. The prohibition contained in the said Article and the Presidential
Order will apply as much to proceedings under s. 491(1)(b) as to those under
Art. 226(1) & Art. 32(1).
In this connection, it is hardly necessary to
emphasise that in deciding the present question, we must take into account the
substance of the matter and not attach undue or exaggerated importance to the
form of the proceedings. If the form which the proceedings take is held to be
decisive in the matter, it would lead to this irrational position that an
application containing the requisite averments in support of a plea for the
release of the detenu, would be thrown out by the High Court if in form it
purports to be made under Art. 226, whereas it would be entertained and may
indeed succeed if it purports to be made under s. 491(1)(b).
Indeed, this argument seems to suggest that
when the Constitution-makers drafted Art. 359, they intended that whenever an
emergency arises and a Presidential Order is issued under Art. 359(1) in regard
to the fundamental rights guaranteed by Arts. 21 and 22, it would be necessary
to pass another piece of legislation providing for an appropriate change or
repeal of a part of the provision of s. 491(1)(b), Cr. P. C.; and since the
legislature has through oversight omitted to pass the necessary Act in that
behalf, proceedings under s. 491(1)(b) must be allowed to be continued free
from the bar created by the Presidential Order. In our opinion, this position
is wholly untenable.
Whether or not the proceedings taken under s.
491(1)(b) fall within the purview of the Presidential Order, must depend upon
the construction of Art. 359(1) and the Order, and in dealing with this point,
we must look at the substance of the matter and not its form. Before giving
relief to the detenu who alleges that he has been illegally and impropely
detained, is the High Court required to consider the validity of the operative
provisions of the impugned Act on the ground that they infringe the specified fundamental
rights? If yes, the bar created by Art. 359(1) and the Presidential Order must
inevitably step in even though the proceedings in form may have been taken
under s. 49t(1)(b) of the Code. In our opinion, therefore, once it is shown
that the proceedings under 825 s.491(1)(b) cannot make a substantial progress
unless the validity of the impugned law is examined on the ground of the
contravention of the specified fundamental rights, it must follow that the bar
created by the Presidential Order operates against -them as much as it operates
against proceedings taken under Art. 226(1) or Art. 32(1). Thus, the true legal
position, in substance, is that the clause "the right to move any
court" used in Art. 359(1) and the Presidential Order takes in all legal
actions intended to be filed, or filed, in which the specified rights are
sought to be enforced, and it covers all relevant categories of Jurisdictions
of competent courts under which the said actions would otherwise normally have
been entertained and tried.
At this stage, we may conveniently refer to
the recent decision of this Court in Sree Mohan Chowdhury v. The Chief
Commissioner, Union Territory of Tripura(1), wherein this Court rejected the
detenu's petition on the ground that it was barred by the Presidential Order
and it refused to entertain the argument that the Ordinance and the Act and the
Rules framed thereunder were void for the reason that they contravened Arts.
14, 21 & 22, with the observation that the challenge made by the petitioner
in that behalf really amounted to "arguing in the circle". If the
Presidential Order precludes a citizen from moving the Court for the
enforcement of the specified fundamental rights, it would not be open to the
citizen to urge that the Act is void for the reason that it offends against the
said fundamental rights. It is in order to prevent the citizen from making such
a claim that the Presidential Order has been issued, and so, during the period
of its operation, the challenge to the validity of the Act cannot be
entertained.
Incidentally, it may be observed that a
petition for a writ of habeas corpus made by Mohan Chowdhury which was rejected
by this Court on the ground that it was barred under the Presidential Order
would, on the view for which the appellants contend, be competent if it is
presented before the appropriate High Court under s. 491(1)(b) of the Code;
and that incidentally illustrates how
exaggerated importance to the form of the petition would lead to extremely
anomalous and irrational consequences. Therefore, our conclusion is that the
proceedings (1) [1964] 3 S.C.R.412.
53-2 SC India/64 826 taken on behalf of the
appellants before the respective High Courts challenging their detention on the
ground that the impugned Act and the Rules arc void because they contravene
Arts. 14, 21 and 22, arc incompetent for the reason that the fundamental rights
which are alleged to have been contravened are specified in the Presidential
Order and all citizens ire precluded from moving any Court for the enforcement
of the said specified rights.
The next question to consider is the validity
of tile Presidential Order itself which was issued on the 3rd November, 1962.
This is how the Order reads:
"G.S.R. 1464.-In exercise of the powers
conferred by clause (1) of article 359 of the Constitution, the President
hereby declares that the right of -any person to move any court for the
enforcement of the rights conferred by article 21 and article 22 of the
Constitution shall remain suspends for the period during which the Proclamation
of Emergency issued under clause (1) of article 352 thereof on ,lie 26th
October, 1962 is in force, if such person has been delivered of any such rights
under the Defence of India Ordanance, 1962 (4 of 1.962) or any rule or order
made thereunder." We have already stated that this Order was subsequently
modified on the 11th November, 1962, by the addition of Art.
14. The first argument which has been urged
against the validity of this Order is that it is inconsistent with the
provisions of Art. 359(1). It is argued that the Order which the President is
authorised to issue under this Article must be an Order of general application;
in fact, the Order purports to be confined to persons who have been deprived of
any of the specified rights under the Defence of India Ordinance, 1962, or any
Rule or Order made there under.
In other words, there is no doubt that this
Order does not apply to persons who have been detained under the provisions of
the earlier Preventive Detention Act No. 4 of 1950, and so, in limiting the
application of the Order to persons who have been detained under the Ordinance,
the President has acted outside the powers conferred on him by Art. 359(1).
In our opinion, this argument cannot be
sustained. The power conferred on the President is wide enough to enable him to
make an Order applicable to all parts of the country and to all 827 citizens
and in respect of any of the rights conferred by Part 111. This wide power
obviously includes the power to issue a limited order. What the Order purports
to do is to provide that all persons wherever they reside who have been
detained under the Ordinance or the Act, will be precluded from moving any
court for the enforcement of the rights specified in the Order. It is not easy
to see how this Order can be said to contravene or be otherwise inconsistent
with the powers conferred on the President by Art. 359(1).
It is then argued that the said Order is
invalid because it seeks to give effect to the Ordinance which is void. It will
be recalled that Ordinance No. 4 of 1962 was promulgated on the 26th October,
1962, whereas the Order was issued under Art. 359(1) on the 3rd November, 1962.
The argument is that during the period between the 26th October and the 3rd
November the validity of the said Ordinance could have been challenged on the
ground that it contravened Arts. 14, 21 and 22, and so, the said Ordinance can
be held to have been a still-born piece of legislation and yet detentions
effected under such a void law are sought to be protected by the Presidential
Order by depriving the the detenues of their right to move any court to
challenge the validity of the orders of detention passed against them. In our
opinion, this argument is wholly misconceived. We have already stated that for
the purpose 'of these appeals, we are prepared to assume that despite the issue
of the Order under Art. 359(1), the fundamental rights guaranteed by Arts. 14,
21 and 22 are not suspended; what is suspended is the enforcement of the said
rights during the prescribed period, and so, what is said about the invalidity
of the Ordinance during the period between 26th October and 3rd November is
true even after the Order was issued on the 3rd November. If the detenues are
justified in contending that the Ordinance and the Act which took its place
contravened the fundamental rights guaranteed by Arts. 14, 21 and 22, the said
Ordinance and the Act would be and would continue to be invalid; but the effect
of the Presidential Order is that their invalidity cannot be tested during the
prescribed period. Therefore, the argument that since the Ordinance or the Act
is invalid, the Presidential Order cannot preclude a citizen from testing its
validity, must be rejected.
The same argument is put in another form. It
is urged that we have merely to examine the Ordinance and Act to be satisfied
that Arts. 14, 21 and 22 (4), (5) and (7) have been contravened and it is
suggested that if these infirmities in the Ordinance and the Act are glaring,
it would not be open to the President to issue an Order preventing the detenues
from challenging the validity of the said statutory provisions. That, in
substance, is what is described by this Court in Mohan Choudhury's case(1) as
arguing in the circle". Therefore, we are satisfied that the challenge to
the validity of the Presidential Order is not well-founded.
It still remains to consider what are the
pleas which are now open to the citizens to take in challenging the legality or
the propriety of their detentions either under 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 rights conferred by
Part III as may be mentioned in the Order. If in challenging the validity of
his detention order, the detenu is pleading any right outside the rights
specified in the Order, his right to move any court in that behalf is not
suspended, because it is outside 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 provisions 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 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 (1) [1964] 3. S.C.R. 442.
829 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)
and the Presidential Order. That is another kind of plea which is outside the
purview of Art.
359(1).
Section 491(1) deals with the power of the
High Court to issue directions in the nature of the habeas corpus, and it
covers six categories of cases in which such a direction ,can be issued. It is
only in regard to that class of cases falling under s. 491(1)(b) where the
legality of the detention is challenged on grounds which fall under Art. 359(1)
and Presidential Order that the bar would operate. In all other cases falling
under s. 491(1) the bar would be inapplicable and proceedings taken on behalf
of the detenu will have to be tried in accordance with law. We ought to add
that these categories of pleas have been mentioned by us by way of
illustration, and so, they should not be read as exhausting all the pleas which
do not fall within the purview of the Presidential Order.
There is yet another ground on which the
validity of the detention may be open to challenge. If a detenu contends that
the operative provision of the law under which he is detained suffers from the
vice of excessive delegation and is, therefore, invalid, the plea thus raised
by the detenu cannot at the threshold be said to be barred by the Presidential
Order. In terms, it is not a plea which is relatable to the fundamental rights
specified in the said Order. It is a plea which is independent of the said
rights and its validity must be examined. Mr. Chatterjee has urged before us
that s. 3(2) (15) (i) as well as s. 40 of the Act are invalid, because they
confer oil the rule making authoritypower which is often described as excessive
delegation.It is,therefore, necessary to consider this point. The Actwhich took
the place of the Ordinance was passed, because it was thought necessary to
provide for special measures to ensure the public safety and interest, the
defence of India and civil defence and for the trial of certain offences and
for matters connected therewith.
Section 3(2)(15)(i) whose validity is
challenged purports to confer on the Central Government power to make Rules.
Section 3(1) reads thus :
830 "The Central Government may, by
notification in the Official Gazette, make such rules as appear to it necessary
or expedient for securing the defence of India and civil defence, the public
safety, the maintenance of public order or the efficient conduct of military
operations, or for maintaining supplies and services essential to the life of
the community." Section 3(2) provides that without prejudice to the generality
of the powers conferred by sub-s. (1) the rules may provide for, and may
empower any authority to make orders providing for, all or any of the following
matters; then follow clauses (1) to (57), including several subclauses which
provide for the matters that may be covered by the Rules. Amongst them is cl.
(15)(i) which reads as under:"Notwithstanding anything in any other law
for the time being in force,-the rules to be made may provide for the
apprehension and detention in custody of any person whom the authority
empowered by the rules to apprehend or detain (the authority empowered to
detain not being lower in rank than that of a District Magistrate) suspects, on
grounds appearing to that authority to be reasonable, of being of hostile
origin or of having acted, acting, being about to act or being likely to act in
a manncr prejudicial to the defence of India and civil defence, the security of
the State, the public safety or interest, the maintenance of public order,
India's relations with foreign States, the maintenance of peaceful conditions
in any part or area of India or the efficient conduct of military operations,
or with respect to whom that authority is satisfied that his apprehension and
detention are necessary for the purpose of preventing him from acting in any
such prejudicial manner." The argument is that in conferring power on the
Central Government to make rules, the legislature has abdicated its essentially
legislative function in favour of the Central Government. In our opinion, this
argument is wholly untenable. Right up from the time when this Court dealt with
Special References in 1951, In re The Delhi Laws Act, 1912 etc.(1) the question
about the limits within which (1) [1951] S.C.R. 747.
831 the legislature can legitimately confer
powers on its delegate has been examined on several occasions and it has been
consistently held that what the legislature is prohibited from doing is to
delegate its essentially legislative function and power. If it appears from the
relevant provisions of the impugned statute that powers which have been
delegated include powers which can legitimately be regarded as essentially
legislative powers, then the legislation is bad and it introduces a serious
infirmity in the Act itself.
On the other hand, if the legislature lays
down its legislative policy in clear and unambiguous terms and leaves it to the
delegate to execute that policy by means of making appropriate rules, then such
delegation is not impermissible. In Harishanker Bagla v. The State of Madhya
Pradesh(1) where the validity of section 3 of the Essential Supplies (Temporary
Powers) Act, 1946, was challenged, this Court in upholding the validity of the
impugned statute held that the preamble and the body of the relevant sections
of the said Act sufficiently formulate the legislative policy and observed that
the ambit and the character of theAct is such that the details of that policy
can only be worked out by delegating that power to a subordinate authority
within the framework of that policy. The same view has been expressed in Bhatnagars
and Co., Ltd., v. The Union of India(-). In the present cases, one has merely
to read s.
3(1) and the detailed provisions contained in
the several clauses of s. 3(2) to be satisfied that the attack against the
validity of the said section on the ground of excessive delegation is patently
unsustainable. Not only is the legislative policy broadly indicated in the
preamble to the Act, but the relevant provisions of the impugned section itself
give such detailed and specific guidance to the rule making authority that it
would be idle to contend that the Act has delegated essentially legislative
function to the rule making authority. In our opinion, therefore, the
contention that s. 3(2)(15)(i) of the Act suffers from the vice of excessive
delegation must be rejected. What we have said about this section applies with
equal force to s. 40.
If the impugned sections of the Act are
valid, it follows that Rule 30(1)(b) which is challenged by the appellants must
be (1) [1955] 1 S.C.R. 380.
(2) [1957] S.C.R. 701.
832 held to be valid since it is consistent
with the operative provisions of the Act and in making it, the Central Government
has acted within its delegated authority. This conclusion is, of course,
confined to the challenge of the appellants based on the ground that the
impugned provisions and the Rule suffer from the vice of excessive delegation.
If we had held that the impugned provision in
the Act suffered from the vice of excessive delegation, it would have become
necessary to consider what the effect of that conclusion would have been on the
merits of the controversy between the parties in the present proceedings. If we
had reached the conclusion that the impugned sections were invalid because they
conferred power on the rule-making authority which suffers from the vice of
excessive delegation, the question would have arisen whether in challenging the
validity of the Order of detention passed against him the detenu is enforcing
his fundamental right under Art. 21 of the Constitution. Art. 21 is one of the
articles specified in the Presidential Order and if at any stage of the
proceedings, the detenu seeks to enforce his right under the said Article, that
would be barred. It may be urged that if the detenues had been able to show
that the impugned provisions of the Act were invalid because they suffered from
the infirmity of excessive delegation, the next step which they would have been
entitled to take was to urge that their detention under such an Act is void
under Art. 21, because the law referred to in that Article must be a valid law;
and that would raise the question as to whether this latter plea falls within
the ambit of Art. 359(1) and the Presidential Order issued under it. We do not
propose to express any opinion on this question in these appeals.
Since we have held that the Act does not
suffer from the vice of excessive delegation as alleged, it is unnecessary to
pursue the enquiry as to whether if the challenge had been upheld, the detenu
would have been precluded from urging the said invalidity in support of his
plea that his detention was illegal.
We must now turn to some other arguments
which were urged before us at the hearing of these appeals. Mr. Sule contends
that part of the Act containing the impugned sections was a colourable piece of
legislation. His argument was that since the Preventive Detention Act No. 4 of
1950 was already on the statute book, it was hardly necessary for the
Legislature to have passed the impugned Act, and he urges that since the sole
object of the Legislature in passing the impugned Act was to deprive the
citizens of their fundamental rights under Arts. 21 and 22, it should be deemed
to be a colourable piece of legislation.
The legislative competence of the Parliament
to pass this Act is not disputed. Entry No. 9 in List I in the Seventh Schedule
confers on the Parliament jurisdiction to make laws in regard to the preventive
detention for reasons connected with defence, foreign affairs, or the security
of India as well as in regard to persons subjected to such detention.
If the Legislature thought that having regard
to the grave threat to the security of India posed by the Chinese aggression,
it was necessary to pass the impugned Act notwithstanding the fact that another
Act had already been passed in that behalf, it would be difficult to hold that
the Legislature had acted malafide and that the Act must, therefore, be struck
down as a colourable exercise of legislative power. It is hardly necessary to
emphasise that a plea that an Act passed by a legislature competent to pass it
is a colourable piece of legislation, cannot succeed on such flimsy grounds.
Whether or not it was wise that this part of the Act should have been passed, is
a matter which is wholly irrelevant in dealing with the plea that the Act is a
colourable piece of legislation.
In this connection, we may refer to another
aspect of the same argument which has been pressed before us. Before doing so,
however, let us briefly indicate the effect of the relevant Articles. Article
14 guarantees equality before law. Article 21 provides, inter alia, that no
person shall be deprived of his personal liberty, except according to procedure
established by law, and Art. 22(4), (5) (6) & (7) lay down Constitutional
safeguards for the protection of the citizen whose personal liberty may be
affected by an order of detention passed against him. Article 22(4) requires
that an Advisory Board should be constituted and that cases of detenues should
be referred to the Advisory Board for its opinion as provided therein. Article
22(5) 834 imposes an obligation on the detaining authority to communicate to
the detenu grounds on which the order of detention has been passed against him
with a view to afford him the earliest opportunity of making a representation
against the order. Article 22(6) provides that in giving notice to the detenu
under Art. 22(5), facts need not be disclosed which the detaining authority
considers to be against public interest to disclose, and Art. 22(7) prescribes
certain conditions which have to be satisfied by any law which the Parliament
may pass empowering the detention of citizens.
It is thus clear that the Constitution
empowers the Parliament to make a law providing for the detention of citizens,
but this power has to be exercised subject to the mandatory conditions
specified in Art. 22(4), (5) & (7). It is common ground that the Preventive
Detention Act of 1950 complies with these requirements inasmuch as it has
enacted sections 7 to 13 in that behalf. It is also clear that these
Constitutional safeguards have not been provided for by the impugned Act.
The argument is that even if the Parliament
thought that during the period of emergency, citizens reasonably suspected to
be engaged in prejudicial activities should be detained without affording them
the benefit of the Constitutional safeguards guaranteed by Art. 22(4), (5)
& (7), the Parliament need not have enacted the Act and might well have
left the executive to take action under the Preventive Detention Act of 1950,
and since Parliament has chosen to pass the Act under challenge and has
disregarded the Constitutional provisions of Articles 14 and 22, the exercise
of legislative power by Parliament must, in the context, be held to be a
colourable exercise of legislative power. This argument seems to assume that if
the Parliament had expected the executive to detain citizens under the Preventive
Detention Act of 1950 without giving them the benefit of the Constitutional
safeguards prescribed by Art.
22, their cases could have been covered if a
Presidential Order had been issued under Art. 359(1) in respect of such
detentions. The question is: is this assumption well-founded? Assuming that the
Presidential Order had suspended the citizens' right to move any court for
enforcing their fundamental rights under Arts. 14, 21 and 22 and had made 835
the said Order applicable to persons detained under the Preventive Detention
Act of 1950, could that Order have effectively prevented the detenues from
contending that their detention was illegal and void? In such a case, if the
detenu was detained under the Preventive Detention Act of 1950 and he
challenged the validity of his detention on the ground that the relevant
provisions of the said Act had not been complied with, would his challenge be
covered by Art. 359(1) and the Presidential Order issued under it? In other
words, can it be said that in making the said challenge, he was enforcing his
fundamental rights specified in the Presidential Order? If it is held that he
was challenging the validity of his detention because the mandatory provisions
of the Act had not been complied with, his challenge may be outside Art. 359(1)
and the Presidential Order. If, on the other hand, it is held that, in
substance, the challenge is to enforce his aforesaid fundamental rights, though
he makes the challenge by reference to the relevant statutory provisions of the
Act themselves that would have brought Ills challenge within the prohibition of
the Presidential Order. Normally, as we have already held, a challenge against
the validity of the detention on the ground that the statutory provisions of
the Act under which the detention is ordered have not been complied with, would
fall outside Art. 359(1) and the Presidential Order, but the complication in
the hypothetical case under discussion arises because unlike other provisions
of the Act, the mandatory provisions in question essentially represent the
fundamental rights guaranteed by Art. 22 and it is open to argument that the
challenge in question substantially seeks to enforce the said fundamental
rights. In the context of the alternative argument with which we are dealing at
this stage, it is unnecessary for us to decide whether the challengein question
would have attracted the provisions ofArt. 359(1) and the Order or not. We are
referring to this matter only for the purpose of showing thatthe Parliament may
have thought that the executive would not be able to detain citizens reasonably
suspected of prejudicial activities by taking recourse to the Preventive Detention
Act of 1950, and that may be the genesis of the impugned Act. If that 836 be
so, it would not be permissible to suggest that in passing the Act, Parliament
was acting malafide.
It is quite true that if the Act has
contravened the citizens' fundamental rights under Arts. 14 and 22, it would be
void and the detentions effected under the relevant provisions of the said Act
would be equally inoperative; but it must be remembered that it is precisely in
this set of circumstances that Art. 359(1) and the Presidential Order issued
under it step in and preclude the citizen from enforcing his fundamental rights
in any court. The said Article as well as the Presidential Order issued under
it indicate that there may be cases in which the specified fundamental rights
of citizens have been contravened by executive action and the impugned
executive action may be invalid on that account. That is precisely why the said
Article and the Presidential Order impose a ban against the investigation of
the merits of the challenge during the period prescribed by the Order.
Therefore, the alternative argument urged in support of the plea that the
impugned provisions of the Act amount to a colourable piece of legislation
fails.
Mr. Parulekar who argued his own case before
us with remarkable ability, contended that a detenu cannot be prevented from
disputing the validity of the Ordinance, Act and the Rules under the
Presidential Order if he did not ask for any consequential relief. His argument
was that the prayer made in his petition under s. 491(1)(b) consists of two
parts; the first prayer is to declare that the impugned Act and the Order are
invalid, and the second prayer is that his detention should be held to be
illegal and his release should accordingly be ordered. The first prayer, says
Mr. Parulekar, cannot fall within the mischief of the Order because he is not
enforcing any of his rights when he asks merely for a declaration that the law
is invalid, and he suggested that even if we take the view that he is precluded
from challenging the validity of his detention by virtue of the said Order, we
should not preclude him from challenging the validity of the law merely with a
view to obtain a declaration in that behalf. In our opinion, this argument
cannot be accepted. What s. 359(1) purports to do is to empower the President
to make an Order by which the right of the detenue to move the Court 437 to challenge
the validity of his detention on the ground that any of his fundamental rights
specified in the Order have been contravened, is suspended, and so, it would be
unreasonable to suggest that what the detenu cannot do in order to secure his
release, he should be allowed to do merely for the purpose of obtaining an
academic declaration.
A proceeding taken under s. 491(1)(b) like a
petition filed under Art. 226(1) or Art. 32(1) is intended to obtain relief,
and the relief in such cases means the order for the release of the detenu. If
the detenu is prohibited from asking for an order of release on the ground that
the challenge to the validity of his order of detention cannot be made during
the pendency of the Presidential Order, we do not see how it would be open to
the same detenu to claim a mere declaration either under s.491, Cr. P.C. or
Art.
226(1) or Art. 32(1) of the Constitution. We
do not think that it was open to the High Court to consider the validity of the
impugned Act without relation to the prayer made by the detenu in his petition.
The proceedings commenced by the detenu by means of his petition under s.
491(1)(b) constitute one proceeding and if the sole relief which the detenu
seeks to obtain cannot be claimed by him by virtue of the Presidential Order,
it would be unreasonable to hold that he can claim a different relief, VI Z., a
mere declaration; such a relief is clearly outside the purview of the
proceedings under s. 491(1)(b) and Arts. 226(1) and 32(1).
During the course of the hearing of these
appeals, it has been strenuously pressed before us by Mr. Setalvad that the
emergency created by the Chinese act of aggression may last long and in
consequence, the citizens would be precluded from enforcing their fundamental
rights specified in the Presidential Order during the period that the Order is
in operation. That, however, has no material bearing on the points with which
we are concerned. How long the Proclamation of Emergency should continue and
what restrictions should be imposed on the fundamental rights of citizens
during the pendency of the emergency, are matters which must inevitably be left
to the executive because the executive knows the requirements of the situation
and the effect of compulsive factors which operate during periods of grave
crisis, such as our country is facing 838 today. As Lord Wright observed in the
case of Liversidge(1), "the safeguard of British liberty is in the good
sense of the people and in the system of representative and responsible
government which has been evolved. If extraordinary powers are here given, they
are given because the emergency is extraordinary and are limited to the period
of the, emergency." The other aspect of Mr. Setalvad's argument was that
during Operation the Presidential Order, the executive may abuse. Its powers
and the citizens would have no remedy. This argument is essentially political
and its impact on the constitutional question with which we are concerned is at
best indirect. Even so, it may be permissible to observe that in a democratic
State, the effective safeguard against abuse of executive powers whether in
peace or in emergency, is ultimately to be found in the existence of
enlightened, vigilant and vocal public opinion.
The appellants have also relied upon the made
by Lord Atkin in the case of Eshuqbavi Elecko v. Officer Administering the
Government of Nigeria (2). "In accordance with British
jurisprudence," said Lord Atkin, "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." These
noble sentiments so eloquently expressed by Lord Atkin as well as his classic
minority speech in the case of Liversidge evoke a spontaneous response in the
minds of all of us who have taken the oath to administer law in accordance with
our Constitution and to uphold the fundamental rights of citizens guaranteed by
the Constitution. This Court is fully conscious of the solemn duty imposed on
it by Art. 32 which constitutes it the Custodian and Guardian of the citizens'
fundamental rights.
But we must remember that the democratic faith
in the inviolable character of individual liberty and freedom and the majesty
of law which sustains it must ultimately be governed by the Constitution
itself. The Constitution is the law of laws-the paramount (1) [1942] A.C. 206
(2) A.I.R. 1931 P.C. 248.
839 and supreme law of the country. It has
itself enshrined the fundamental rights of the citizens in the relevant
Articles of Part III and it is no doubt the duty of this Court as the Custodian
of those rights to see that they are not contravened contrary to the provisions
of the Constitution.
But the Constitution itself has made certain
emergency provisions in Chapter XVIII with a view to en-,Able the nation to
meet grave emergencies like the present, and so, in dealing with the question
about the citizen's right to challenge the validity of his detention, we will
have to give effect to the plain words of Art. 359(1) and the Presidential
Order issued under it. As we have already indicated, the only reasonable
construction which can be placed upon Art. 359)(1) is to hold that the
citizen's right to take any legal proceeding for the enforcement of his fundamental
rights which have been specified in the Presidential Order is suspended during
the prescribed period. It is, in our opinion, plain that the right specified in
Art.
35)(1) includes the relevant right, whether
it is statutory, Constitutional or Constitutionally guaranteed, and the words
"any court" refer to all courts of competent jurisdiction and
naturally include the Supreme Court and the High Courts.
If that be so, it would be singularly
inappropriate for this Court to entertain an argument which seeks to circumvent
this provision by suggesting that the right of the detenu to challenge the
legality of his detention under s. 491(1)(b) does not fall within the scope of
the said Article. The said argument concentrates attention on the mere form of
the petition and ignores the substance of the matter altogether. In the
context, we think, such a sophisticated approach which leans solely on unrealistic
and artificial subtlety is out of place and is illogical, unreasonable and
unsound. We must, therefore, hold that the Punjab and the Bombay High Courts
were right in coming to the conclusion that the detenues before them were not
entitled to contend that the impugned Act and the statutory Rule under which
they were deained were void for the reason that they contravened Arts. 14, 21
and 22(4), (5) & (7).
Before we part with these appeals, we ought
to mention one more point. At the commencement of the hearing of these appeals
when Mr. Setalvad began to argue about 840 the validity of the impugned
provisions of the Act and the Rules, the learned Attorney-General raised a
preliminary contention that logically, the appellants should satisfy this Court
that it was open to them to move the High Courts on the grounds set out by them
before the validity of the said grounds is examined. He suggested that,
logically, the first point to consider would be whether the detenues can
challenge the validity of the impugned Act on the ground that they are
illegally detained. If they succeed in showing that the applications made by
them under s. 491(1)(b) are competent and do not fall within the purview of
Art. 359(1) and the Presidential Order, then the stage would be reached to
examine the merits of their complaint that the said statutory provisions are
invalid. If, however, they fail on the first point, the second Point would not
fall to be considered. We then took the view that since a large number of
appeals were placed for hearing before us and they raised important issues of
Constitutional Law, it would be better to allow Mr. Setalvad to argue the case
in the manner he thought best, and so, Mr. Setalvad addressed us on the
validity of the Act in the first instance and then dealt with the question
about the competence of the applications made under s. 491 (1) (b) of the Code.
In the main, the same method was adopted by the learned Advocates who followed
Mr. Setalvad on the appellants' side. Naturally, when the learned AttorneyGeneral
made his reply, he also had to address us on both the points. It appeared that
as regards the validity of the impugned provisions of the Act and the Rules he
was not in a position to challenge the contention of the appellants that the
Act contravened Arts. 14, 21 and 22(4), (5) & (7). Even so, he strongly
pressed before us his original contention that we would not reach the stage of
expressing our opinion on the validity of the Act if we were to uphold the
preliminary objection that the applications made by the detenues were
incompetent. In our opinion, the learned Attorney-General is right when he
contends that we should not and cannot pronounce any opinion on the validity of
the impugned Act if we come to the conclusion that the bar created by the
Presidential Order operates against the detenues in the present cases. In fact,
that is the course which this Court 841 adopted in dealing with Mohan
Choudhury's case(1), and we are satisfied that that is the only course which
this Court can logically and with propriety adopt.
In the result, we hold that the Punjab and
the Bombay High Court are right in coming to the conclusion that the
applications made by the detenues for their release under s.
491 (1) (b), Cr. P. C. are incompetent in so
far as they seek to challenge the validity of their detentions on the ground
that the Act and the Rule under which they are detained suffer from the vice
that they contravene the fundamental rights guaranteed by Arts. 14, 21 and
22(4), (5) and (7). Since these appeals were placed before the Special Bench
for the decision of the common questions of law raised by them, we do not
propose to examine the other contentions which each one of the appellants seeks
to raise in his appeal. Therefore, we direct that all the appeals included in
the present group should now be set down before a Constitution Bench and each
one of them should be dealt with in accordance with law.
SUBBA RAO J.-I have had the advantage of
reading the judgment of my learned brother, Gajendragadkar J. I regret my
inability to agree with him wholly. I agree with his conclusion in regard to
the applicability of Art. 359 of the Constitution to a right to move a court
both under Art.
32(1) and Art. 226 thereof, but not with his
conclusion in regard to the exercise of power by the High Court under s.491 of
the Code of Criminal Procedure.
These appeals raise questions of great
importance touching apparently conflicting, but really harmonious, concepts of
individual liberty and security of the State, for the former cannot exist
without the latter. My only Justification for a separate treatment of the
subject even on questions on which ,here is general agreement is my conviction
that on important questions I should express my thoughts in my own way. Broadly,
two questions are posed for the consideration of this Court, namely (i) whether
s. 3(2) (15) (i) of the Defence of India Act, 1962 (51 of 1962), hereinafter
called the Act, and r. 30(1)(b) of the Rules made in exercise of the power
conferred under the Act are constitutionally void;
and (ii) whether the Order made by the
President in exercise of the power conferred on 'him under Art. 359(1) of the
Constitution would be a (1) [1964] 3 S.C.R. 442.
542 S. C. India/64 842 bar against the
maintainability of any action in any court to question the validity of the
detention order made under the Act.
I shall deal with the two questions in the
said order.
Before dealing with the first question it
would be convenient to quote the impugned provisions of the Act.
Section 3.-( 1) The. Central Government may
by notification in the Official Gazette, make such rules as appear to it
necessary or expedient for securing the defence of India and civil defence, the
public safety, the maintenance of public order or the efficient conduct of
military operations, or for maintaining supplies and services essential to the
life of the community.
(2)Without prejudice to the generality of the
powers conferred by sub-section (1), the rules may provide for, and may empower
any authority to make orders providing for, all or any of the following
matters, namely.
(15)notwithstanding anything in any other law
for the time being in force,(i) the apprehension and detention in custody of
any person whom the authority empowered by the rules to apprehend or detain
(the authority empowered to detain not being lower in rank than that of a
District Magistrate) suspects, on grounds appearing to that authority to be
reasonable, of being of hostile origin or of having acted, acting, being about
to act or being likely to act in a manner prejudical to the defence of India
and civil defence, the security of the State, the public safety or interest,
the maintenance of public order, India's relations with foreign States, the
maintenance of peaceful conditions in any part or area of India or the
efficient conduct of military operations, or with respect to whom that
authority is satisfied that his apprehension and detention are necessary for
the purpose of preventing him from acting in any such prejudicial manner, * * *
* Rule 30.-(1) The Central Government or the State Government, if it is
satisfied with respect to any particular person that with a view to preventing
him from 843 acting in any manner prejudicial to the defence of India and civil
defence, the public safety, the maintenance of public order, India's relations
with foreign powers, the maintenance of peaceful conditions in any part of
India, the efficient conduct of military operations or the maintenance of
supplies and services essential to the life of the community, it is necessary
so to do, may, make an order* * * * (b)directing that he be detained.
Rule30A.-(2) Every detention order shall be
reviewed in accordance with the provisions hereinafter contained.
(3)A detention order made by the Central
Government Or the State Government or the Administrator shall be reviewed by
the Central Government or the State Government or the Administrator, as the
case may be.
(4)A detention -order made by an officer (who
shall in no case be lower in rank than that of a District Magistrate) empowered
by the State Government or the Administrator shall be reviewed :(a) in the case
of an order made by an officer empowered by the State Government, by a
reviewing authority consisting of any such two officers from among the
following officers of that Government, that is to say, the Chief Secretary, a
member of the Board of Revenue, a Financial Commissioner and a Commissioner of
a Division, as may be specified by that Government by notification in the Official
Gazette ;
(b) in the case of an order made by an
officer empowered by the Administrator, by the Administrator himself.
Under the said provisions the Central
Government or the State Government or an officer on whom the power to detain is
delegated can direct the detention of any person if the detaining authority is
satisfied that his detention is necessary for one or other of the reasons
mentioned in r.
30. No grounds of detention need be served
upon the detenu;
no opportunity need be given to him to make
representations or establish his innocence. The period of detention can be
indefinite. The Central Government or the 844 State Government or the
Administrator of a Union Territory, as the case may be, is authorised to review
the order of detention made by them. So too, a detention order made by an
officer empowered by the State Government in that behalf can be reviewed by one
or other of the officers mentioned in r. 30A (4) It is contended that the said
provisions infringe Art. 22(4) and (5) of the Constitution and, therefore,
void. This Court in Deepchand v. The State of Uttar Pradesh(1) laid down the
effect of a law made in infringement of fundamental rights; and observed :
"The result of the aforesaid discussion
may be summarized in the following propositions; (i) whether the Constitution
affirmatively confers powers on the legislature to make laws subject-wise or
negatively prohibits it from infringing any fundamental right, they represent
only, two aspects of want of legislative power; (ii) the Constitution in
express terms makes the power of a legislature to make laws in regard to the
entries in the Lists of the Seventh Schedule subject to the other provisions of
the Constituion and thereby circumscribes or reduces the said power by the limitations
laid down in Part III of the Constitution; (iii) it follows from the premises
that a law made in derogation or in excess of that power would be ab initio
void wholly or to the extent of the contravention, as the case may
be;......................" This view was accepted by a later decision of
this Court in Mahandra Lal v. State of U.P.(2).
It is, therefore, manifest that if the Act
and the rules framed thereunder infringed the provisions of Art. 22(4) and (5)
of the Constitution, they would be ab initio void they would be stillborn law
and any detention made thereunder would be an illegal detention. Articles 21
and 22 enshrine fundamental rights relating to personal liberty,. Clauses (4)
to (6) of Art. 22 specifically deal with preventive detention. This Court has
held in A. K . Gopalan v. State of Madras(3) that the word '.,law" in Art.
21 means Statemade law or enacted law and that Art. 22 lays down only the
minimum procedural conditions which such a (1) [1959] Supp. 2 S.C.R. 8, 40.
(2 ) A.I.R. 1963 S.C. 1019. (3) [1950] S.C.R.
88.
845 a statutory law cannot infringe in the
matter of preventive detention. The minimum conditions arc as follows:
(1) Parliament may make a law prescribing the
maximum period for which any person may be detained; (2) he shall not be
detained for a period more than 3 months unless an Advisory Board constituted
for that purpose reports before the expiry of three months that there is
sufficient cause for detention ; and (3) the authority making the order shall
communicate to such person the grounds on which the order has been made and
afford him the earliest opportunity of making representations against the
order. At the same time cl. (7) enables Parliament to make a law prescribing
the circumstances under which and the class or classes of cases in which a
person may be detained for a period longer than three months without obtaining
the opinion of the Advisory Board. Clause (6) of Art. 22 enables an authority
not to disclose facts to the detenu which it considers to be against the public
interest to disclose. While cls. (4) to (6) of Art. 22 provide for the minimum
safeguards for a dctenu in the matter of preventive detention, cl. (7) removes
them enabling Parliament to make a law for preventive detention ignoring practically
the said safeguards. The only outstanding safeguard, therefore, is that
Parliament can only make a law in derogation of the said safeguards by defining
the circumstances under which and the class or classes of cases in which a
person may be so detained. Parliament did not make such a law.
Neither the Act nor the rules made there under
satisfy the conditions laid down in that clause. The Act and the rules do not
provide for the maximum period of detention, for the communication to the
detenu of the grounds of detention, for affording him an opportunity of making
representations against his detention, or for an Advisory Board consisting of
persons with the requisite qualifications. The power to review given to the
detaining authority cannot conceivably satisfy the condition of an Advisory
Board provided for under cl. (4)(a) of Art. 22. It is, therefore, a clear case
of Parliament making a law in direct infringement of the relevant provisions of
Art. 22 of the Constitution, and therefore the law so made is void under the
said Article., 846 In this context a relevant aspect of the argument advanced
by the learned Attorney-General may be noticed. He contends that, on a true
construction of Art. 359(1) of the Constitution, if the requisite order is made
by the President, a law can be made in infringement of Art. 22 of the
Constitution. Under Art. 359, 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 shall remain suspended for the period
during which a Proclamation of Emergency is in force or for such shorter period
as may be specified in the order.
It is contended that when remedy is suspended
in respect of infringement of Art. 22, the right there under also falls with
it. It is said that right and remedy are reciprocal; and if there cannot be a
right without a remedy, there cannot also be a remedy without a right. In
"Salmond on jurisprudence", 11th Edn., the following interesting
passage is found, at p. 531, under the heading "Ubi jus Ibi
Remedium";
"Whenever there is a right, there should
also be an action for its enforcement. That is to say, the substantive law
should determine the scope of the law of procedure, and not vice versa. Legal
procedure should be sufficiently elastic and comprehensive to afford the
requisite means for the protection of all rights which the substantive law sees
fit to recognize. In early systems this is far from being the case. We there
find remedies and forms of action determining rights than rights determining
remedies. The maxim of primitive law is rather, Ubi remedium ibi jus." I
understand this passage to mean that a right pertains to the substantive law
and the remedy, to procedural law; that where a right is provided by a statute
a remedy, though not expressly provided for, may necessarily be implied. But
the converse, though obtained in primitive law, cannot be invoked in modern
times. To put it in other words, the suspension of a remedy cannot abrogate the
right itself.
Indeed, a comparative study of Arts. 358 and
359 of the Constitution indicates that it could not have been the intention of
the makers of the Constitution, for Art. 358 expressly suspends the right
whereas Art. 359 suspends the remedy. If the contention of the learned Attorney
847 General be accepted, both have the same effect: if that was the intention
of the makers of the Constitution, they would not have expressed themselves in
different ways in the two articles. Where they intended to suspend the right,
they expressly said so, and where they intended only to suspend the remedy,
they stated so. We cannot, therefore, accept this contention.
At this stage I may also notice the argument
of the learned Attorney General that Art. 359, by enabling the President to
suspend the right to move for the enforcement of the fundamental rights
mentioned therein, impliedly permitted Parliament to make laws in violation of
those fundamental rights in respect whereof the right to move the court is
suspended. I cannot appreciate this argument. It is one thing to suggest that
in view of the amplitude of the phraseology used in Art. 359, the right to move
for the enforcement of fundamental rights infringed by a void law, even
deliberately made by Parliament, is suspended but it is a different thing to
visualize a situation when the Constitution permitted Parliament under the
shelter of executive fiat to make void laws. Indeed, a comparison of Art. 358
and Art. 359 I shall deal with them in detail later on-indicates the contrary.
I cannot for a moment attribute to the august body, the Parliament, the
intention to make solemnly void laws. It may have made the present impugned Act
bona fide thinking that it is sanctioned by the provisions of the Constitution.
Whatever it may be, the result is, we have now a void Act on the statute book
and under that Act the appellants before us have been detained illegally. To
use the felicitous language of Lord Atkin, in this country "amid the clash
of arms, the laws are not silent; they may be chanced, but they speak the same
language in war as in peace". The tendency to ignore the rule of law is
contagious, and, if our Parliament, which unwittingly made a void law, not only
allows it to remain on the statute book, but also permits it to be administered
by the executive, the contagion may spread to the people, and the habit of
lawlessness, like other habits, dies hard.
Though it is not my province, I venture to
suggest, if I may, that the Act can be amended in conformity with our
Constitution without it losing its effectiveness.
This leads us to the question whether the
appellants, 948 who are illegally detained, can move this Court under Art.
32 of the Constitution or the High Court
under Art. 226 thereof or under s. 491 of the Code of Criminal Procedure,
hereinafter called the Code. It would be convenient at this stage to read the
relevant provisions of the Constitution.
Article 32.(1) The right to move the Supreme
Court by appropriate proceedings for the enforcement of the rights conferred by
this Part is guaranteed.
* * * * (3)Without prejudice to the powers
conferred on the Supreme Court by clauses (1) and (2), Parliament may by law
empower any other Court to exercise within the local limits of its jurisdiction
all or any of the powers exercisable by the Supreme Court under clause (2).
(4)The right guaranteed by this article shall
not be suspended except as otherwise provided for by this Constitution.
Article. 226 (1) Notwithstanding anything in
article 32, every High Court shall have power, throughout the territories in
relation to which it exercises jurisdiction, to issue to any person or
authority, including in appropriate cases any Government, within those
territories directions, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition,' quo warranto and certiorari, or any of them,
for the enforcement of any of the rights conferred by Part III and for any
other purpose.
(2)The power conferred on a High Court by
clause (1) shall not be in derogation of the power conferred on the Supreme
Court by clause (2) of article 32.
Article 358. While a Proclamation of
Emergency is in operation nothing in article 19 shall restrict the power of the
State as defined in Part III to make any law or to take any executive action
which the State would but for the provisions contained in the 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, 849 except as respects things done or omitted to be done before the
law so ceases to have effect.
Article 359 (1) Where a Proclamation of
Emergency is in operation, the President may by order declare that the right to
move any court for the enforcement of such of the rights conferred by Part III
as may be mentioned in the order and all proceedings pending in any court for
the enforcement of the rights so mentioned shall remain suspended for the
period during which the Proclamation is in force or for such shorter period as
may be specified in the order.
Article 33 confers power on Parliament to
modify the rights conferred by Part III in their application to Armed Forces or
the Forces charged with the maintenance of public order;
Art. 34 enables Parliament to impose restrictions
an the rights conferred by Part III while martial law is in force in any area.
The contention of learned counsel for the
appellants on the construction of the said provisions may be classified under
the following heads: (1) Art. 358 permits the State to make laws only in
infringement of Art. 19 of the Constitution, and Art. 359 suspends only the
right to move the enforcement of the fundamental rights specified in the
President's Order and, therefore, Art. 359 cannot be so construed as to enlarge
the legislative power of Parliament beyond the limits sanctioned by Art. 358
and, therefore, it should be confined only to executive infringements of the
said rights.
(2) Article 359 does not permit the executive
to commit fraud on the Constitution by doing indirectly what Parliament cannot
do directly under Art. 358 and Art. 13(2) of the Constitution. (3) For invoking
Art. 359 two conditions must be complied with, namely, (i) the party shall have
a right to move any court, and (ii) only for the enforcement of the rights
conferred by Part III. Such a right to move for such a relief is expressly
conferred by the Constitution under Art. 32. Therefore, the President's order
under Art. 359 would only suspend the right to move under Art. 32 and not for
approaching the Court under Art.
226 of the Constitution. In any view, those
words are inappropriate to a pre-existing statutory right under s. 491 of the
Code.
850 To appreciate the contentions from a
correct perspective it is necessary at the outset to notice the nature of the
fundamental rights enshrined in the Constitution and the remedy or remedies
provided for their enforcement. It would be pedantic to go into the question
whether fundamental rights provided for under our Constitution are natural
rights or primordial rights : whatever their origin might have been and from
whatever source they might have been extracted, they are enshrined in our
Constitution in Part III and described as fundamental rights. The constitution
declared under Art. 13(2) that the State shall not make any law taking away or
abridging the said rights and any law made in contravention of this clause
shall be void to the extent of the contravention. After declaring such a law
void, it proceeds to provide for the mode of enforcement of the said rights.
Article 32(1) makes the right to move the Supreme Court by appropriate
proceedings for the enforcement of the said rights a guaranteed right.
Appropriate proceedings are described in cl. (2) thereof, that is to say, a
person can move the said Court for directions, orders, or writs in the nature
described there under for the enforcement of any of the said rights. The right
to move, therefore, is regulated by the procedure prescribed there under.
Article 226, though it does not find a place in Part III of the Constitution,
confers a power on every High Court throughout the territories in relation to
which it exercises jurisdiction to issue such directions, orders, or writs in
the nature described there under for the enforcement of any of the rights conferred
by Part III. There is a material difference between Art. 32 and Art. 226 of the
Constitution, namely, while in Art. 32 the right to move the court is
guaranteed, under Art. 226 no such guarantee is given. But a fair construction
of the provisions of Art.
226 indicates that the right to move, though
not guaranteed, is necessarily implied therein. As I have pointed out, under
Art. 32 the right to move the Court is given a practical content by the
provision indicating the different modes open to the person who has the said
right to approach the Supreme Court. Article 226 employs the same procedure for
approaching the High Court and that procedure must necessarily be for the
exercise of the right to move that 851 court. When a power is conferred upon the
High Court and a procedure is prescribed for a party to approach that court, it
is reasonable to imply that the person has a right to move that court in the
manner prescribed thereunder. The only difference between Art. 32 and Art. 226
is that the Supreme Court cannot say, if it is moved in the manner prescribed,
that it will not decide on merits, but the High Court, in exercise of its
jurisdiction can do so. The decision on merits is left to its discretion,
though the exercise of that discretion is regulated by convention and
precedent. Further, Art. 32(3) also enables Parliament to make a law empowering
any other court to exercise within the local limits of its jurisdiction all or
any of the powers exercisable by the Supreme Court under cl. (2) thereof.
One thing to be noticed is that Parliament
can only empower any other court to exercise any of the powers exercisable
under cl.(2) ; it cannot confer the guaranteed right mentioned in cl. (1) on
any person to move that court. That is to say, the court or courts to which
such powers are given would be in the same position as the High Court in
respect of the enforcement of the fundamental rights. To put it shortly, no
person will have a guaranteed right to move any such other court for the
enforcement of fundamental rights. A discretionary jurisdiction similar to that
of the High Court can only be conferred on them. For the same reason given in
the case of the High Court, an aggrieved party will also have a right to move
those courts in the manner prescribed.
This analysis leads us to the following
position Under the Constitution every person has a right to move, for the
enforcement of a fundamental right, the Supreme Court, the High Courts or any
other court or courts constituted by Parliament by law in the manner prescribed
i.e., by one or other of the procedural writs or directions or orders described
there under.
With this background let me have a close look
at the provisions of Art. 359. The expressions used in Art. 359 are clear and
unambiguous. Three expressions stand out in bold relief, namely, (i)
"right to move", (ii) "any Court", and (iii) "for the
enforcement of such of the rights conferred by Part III". "Any
Court" implies more 852 than one court, but it cannot obviously be any
court in India, for it must be a court where a person has a right to move for
the enforcement of the fundamental rights. It can, therefore, be only the
Supreme Court, High Court or the courts or courts constituted by Parliament
under Art. 32(3).
If the contention of learned counsel for the
appellants be accepted, the expression "court" should be confined to
the Supreme Court. But the Article does .not say either Supreme Court or that
the right to move is the guaranteed one under Art. 32(1). The next question is,
what do the words "right to move" mean? The right to move is
qualified by the expression "for the enforcement of such of the rights
conferred by Part 111". Therefore, the right to move must be a right to
move the Supreme Court or the High Court in the manner prescribed by Art. 32(2)
or Art. 226(1) of the Constitution for the enforcement of the fundamental
rights.
The words in the second limb of the Article
viz., that "all proceeding’s pending in any court for the enforcement of
the rights so mentioned shall remain suspended" only relate to the
proceedings instituted in exercise of the said right :
they do not throw any light on the scope of
the "right to move'. This construction gives full meaning to every
expression used in the Article. if so construed, it can only mean that the
temporary bar that can be imposed by an order of the President is not confined
only to the guaranteed right of a person to move the Supreme Court for the
enforcement of his fundamental rights, but also extends to the right of a
person to move the High Court or the Court or Courts constituted by Parliament
for the enforcement of such of the fundamental rights as mentioned in the
order. I would, therefore, hold that the President's order under Art.
359 suspending the right to move any court in
respect of specified fundamental rights includes not only the right to move
under Art. 32 but also that under Art. 226.
The more difficult question is whether Art.
359 can be so construed as to empower the President to suspend all actions
which a person may take under a statute or common law, if he seeks thereby to
protect his liberty against unlawful encroachment by State or its officers. To
put it in other words, can a person, who is illegally 853 detained under a void
law, approach the High Court under s.
491 of the Code or file a suit in a civil
court for damages for illegal confinement or take any other legal proceedings
open to him? Learned Attorney General contends that "any court" in
Art. 359 means any court in India and that the expression "enforcement of
fundamental rights" implies any relief asked for by a party if the
granting of such relief involves directly or indirectly a decision on the
question whether any of the fundamental rights specified in the President's
order has been infringed. This argument, if I may say so, completely ignores
the scheme of the Constitution. Under the Constitution, a person may have three
kinds of rights, namely, (i) fundamental rights, (ii) constitutional rights,
and (iii) statutory or common law rights. Under Art. 32(1) a person has a
fundamental right to move the Supreme Court for enforcement of his fundamental
rights; under Art. 226, a person has a constitutional right to move the High
Court for the enforcement of the said rights. Parliament, by law, in exercise
of its powers conferred on it under Art. 245, may confer a right on a person to
move any court for a relief wider in scope than that provided by Art. 32 or
Art. 226 of the Constitution.
Though Parliament may not have power, except
in the cases specified to circumscribe the fundamental rights enshrined in Part
III it can certainly make a law enlarging the content of the substantive and
procedural rights of parties beyond those conferred by Part III. Under this
category there may also be laws made by competent authority before the
commencement of the Constitution, but continued under Art. 372, which do not
any way infringe the fundamental rights created by the Constitution. Section
491 of the Code is one of the pre-Constitution statutory provisions continued
under Art. 372 of the Constitution. It does not in terms posit any right to
move the High Court for the enforcement of fundamental rights. Therefore, the
argument of the learned Attorney General involves considerable strain on the
express language of Art. 359, for, he in effect asks us to equate the
expression "a right to move for the enforcement of fundamental
rights" with any relief asked for in any proceedings in any court, whether
initiated at the instance of the party affected or not, 854 or whether started suo
motu by the court, if it involves a decision on the question whether a
particular law was void for the reason that it infringed the fundamental rights
mentioned in the President's order. In support of this contention he presses on
us to hold that in days of stress and strain i.e., when there is a threat of
war and consequently an emergency is declared, a court has to adopt the
principle of "strained construction" which will achieve the object
behind Art. 359 of the Constitution and the order issued by the President. I
shall briefly examine the decisions cited by him to ascertain whether any such
novel doctrine of construction of statutes exists.
Rex v. Halliday(1) is a decision of the House
of Lords made in 1917 i.e., during the First World War. Regulation 14B of the
Defence of the Realm (Consolidation) Regulation, 1914, empowered the Secretary
of State to order the internment of any person of hostile origin or
associations, where on the recommendation of a competent naval or military
authority it appeared to him expedient for securing the public safety or the
defence of the realm. This regulation was authorized by the Defence of the
Realm Consolidation Act, 1914, s. 1, subsection 1. The House of Lords, by a
majority, held that the Act conferred upon , the King-In-Council power, during
the continuance of the war, to issue regulations for securing the public safety
and the defence of the realm and, therefore, the regulation was valid. It was
urged there that no such restraint of personal liberty should be imposed except
as a result of judicial enquiry. It was also contended that if the Legislature
intended to interfere with personal liberty it should have provided for
suspending the right of the subject as to the writ of heabeas corpus. The
argument was negatived. Lord Atkin observed "The subject retains every
right which those statutes confer upon him to have tested and determined in a
Court of law, by means of a writ of Habeas Corpus,, addressed to the person in
whose custody he may be, the legality of the order or warrant by virtue of
which he is given into or kept in that custody. If the Legislature chooses to
enact that he can be deprived of his liberty and incarcerated or (1) L.R. 1917
A.C. 260, 272.
855 interned for certain things for which he
could not have been heretofore incarcerated or interned, that enactment and the
orders made under it, if intra vires, do not infringe upon the Habeas Corpus
Acts in any way whatever, to take away any rights conferred by Magna Charta,
for the simple reason that the Act and these Orders become part of the law of
the land." This decision does not lay down any new rule of construction.
Parliament is supreme in England. It its wisdom it did not take away the habeas
corpus, but empowered the executive to issue regulations for public safety and
defence of the nation. The regulation made did not exceed the power conferred
by the Parliament. The House of Lords held that the detention was in accordance
with law.
Nor does the controversial decision in
Liverside v. Sir John Anderson(1), which was the subject of servere criticism
in later years, lay down any such new rule of construction.
There, the Secretary of State, acting in good
faith under reg. 18B of the Defence (General) Regulations, 1939, made an order
in which he recited that he bad reasonable cause to believe a person to be of
hostile associations and that by reason thereof it was necessary to exercise
control over him and directed that that person be detained. The validity of the
detention turned upon the construction of the express provisions of reg. 18B of
the said Regulations. In that regulation the expression used was
"reasonable cause to believe any person to be of hostile origin". The
House of Lords, by a majority, held that the expression meant that "the
Secretary of State thinks fit to be reasonable". There was a powerful
dissent by Lord Atkin on the question of construction. With the correctness of
the construction put upon by the majority on the said provision we are not
concerned ; but none of the learned law Lords laid down in their speeches any
new rule of construction peculiar to war conditions. Viscount Maugham observed
:
"My Lords, I think we should approach
the construction of reg. 18B of the Defence (General) Regulations without any
general presumption as to its (1) L.R. 1942 A.C. 206, 219, 251.
856 meaning except the universal presumption,
applicable to Orders in Council and other like instruments, that, if there is a
reasonable doubt as to the meaning of the words used, we should prefer a construction
which will carry into effect the plain intention of those responsible for the
Order in Council rather than one which will defeat that intention." Lord
Atkin, in his dissenting judgment, protested against the strained construction
put on words with the effect of giving an uncontrolled power of imprisonment to
the minister. Then he proceeded to observe :
"The words have only one meaning. They
arc used with that meaning in statements of the common law and in statutes.
They have never been used in the sense now
imputed to them." These observations by the dissenting Lord may at the
most indicate that the majority in fact put a strained construction on the
express words used in the regulation; but they do not show that they have laid
down any such rule of construction. This is made clear by Lord Macmillan when
he stated:
"In the first place, it is important to
have in mind that the regulation in question is a war measure. This is not to
say that the courts ought to adopt in wartime canons of construction different
from those Which they follow in peace time. The fact that the nation is at war
is no Justification for any relaxation of the vigilance of the courts in seeing
that the law is duly observed,. especially in a matter so fundamental as the liberty
of the subjectmatter the contrary. But in a time of emergency when the life of
the whole nation is at stake it may well be that a regulation for the defence
of the realm may quite properly have a meaning which because of its drastic
invasion of the liberty of the subject the courts would be slow to attribute to
a peace time measure. The purpose of the regulation is to ensure public safety,
and it is right so to interpret emergency legislation as to promote rather than
to defeat its efficacy for the defence of the realm. That is in accordance with
a general rule applicable to the interpretation of 857 all statutes or
statutory regulations in peace time as well as in war time." These
observations should be understood in the background of the earlier observation
:
"I do not agree that the critical phrase
in the context in which I find it is susceptible only of one meaning, namely
that for which the appellant contends. Were it so it would be strange that
several learned judges should have found it to possess quite a different
meaning." This judgment, therefore, is no authority for the position for
which it is relied upon. The decision in substance says that the rule of
construction of a statute is the same both in peace time and in war time and
that when there is an ambiguity in the expressions used, the court may give
such meaning to the words used which are capable of bearing that meaning as
would promote rather than defeat the object of the legislation. Indeed, the
Privy Council, in Nakkuda Ali v. Jayaratna(1), confined the interpretation put
upon reg.
18B of the Defence (General) Regulations,
1939, by a majority of the House of Lords to the particular cricumstances of
that case and they did not accept that construction when similar words were
used in the Regulation 62 of the Defence (Control of Textiles) Regulations,
1945.
I cannot, therefore, hold that the said
decisions suggested a new rule of construction peculiar to war measures. The
rules of construction are the same in war time as well as in peace time. The
fundamental rule of construction is that the courts have to find out the
expressed intention of the Legislature from the words of the enactment itself.
Where the language is unambiguous, no more is necessary than to expound those
words in their natural and ordinary sense.
But where the words are ambiguous and
reasonably capable of bearing two meanings, the court may be justified in
adopting that meaning which would further the intention of the Legislature
rather than that which would defeat it.
In the present case we are not dealing with a
war measure, but a constitutional provision which was designed to govern the
affairs of our country for all times so (1) L.R. 1 [1951] A.C. 66.
55-2 S C India/64.
858 long the Constitution remains in force ; and
it cannot certainly be strained to meet a passing phase in a country's life. A
strained construction put upon a statutory provison to meet a particular
emergency may be rectified by a subsequent enactment. But such a construction
put upon a constitutional provision might entail serious consequences.
Even if Liversidge's case(1) had laid down a
new rule of construction, that construction cannot be invoked in the case of a
constitutional provision.
In Gibbons v. Ogden(2) the following rule of
construction of a constitutional provision is stated :
"That which the words declare is the
meaning of an instrument ; and neither Courts nor legislatures have the right
to add or to take away from that meaning. This is true of every instrument, but
when we arc speaking of the most solemn and deliberate of all human writings
those which ordain the fundamental law of states, the rule rises to a very high
degree of significance. It must' be very plain, nay absolutely certain, that
the people did not intend what the language they have employed in its natural
signification, imports, before a Court will feel itself at liberty to depart
from the plain reading of a constitutional provision." No doubt a
constitution should receive a fair, liberal and progressive construction so
that the true objects of the instrument may be promoted ; but such a
construction could not do violence to the natural meaning of the words used in
particular provision of the Constitution.
The relevant provisions of s. 491 of the Code
read (1) Any High Court may, whenever it thinks fit, direct(a) that a person
within the limits of its appellate criminal jurisdiction be brought up before
the Court to be dealt with according to law ;
(b) that a person illegally or improperly
detained in public or private custody within such limits be set at liberty * *
* * Bearing in mind the said rules of construction, I ask myself the question
whether the exercise of the power un(1) [1942] A.C. 206.
(2) (1824) 6 L.Ed. 23.
859 der s. 491 of the. Code can be equated
with a right to move the High Court to enforce such of the fundamental rights
conferred by Part III of the Constitution as may be mentioned in the order of
the President. It is necessary to ascertain the correct scope of the section to
answer the question raised before us. The section is framed in wide terms and a
discretionary power is conferred on the High Court to direct one or other of
the things mentioned therein "whenever it thinks fit". Unlike Art. 32
and Art. 226, the exercise of the power is not channelled through well
recognized procedural writs or orders. With the result the technicalities of
such procedural writs do not govern or circumscribe the court's discretion. A
short history of this section reinforces the said view. Originally, the Supreme
Courts in India purported to exercise the power to issue a writ of habeas
corpus which the Kings' Bench Division in England exercised. In 1861 Parliament
passed Acts 24-25 Vict. Ch. 104 authorising the establishment of High Courts of
judicature in India. The Letters Patents issued under that Act in 1865 were
expressly made subject to the legislative powers of the Governor-General in
Council.
The courts were given the same jurisdiction,
power and authority which the Supreme Courts possessed but subject to the
legislative power of the Governor-General in Council.
Pursuant to the power so conferred, the
Governor-General in Council passed successive Codes of Criminal Procedure in
the years 1872, 1875, 1882;and,1898, and in 1923 by the Criminal Law (Amendment)
Act, some of the provisions of the Code of 1898 were amended. The High Courts
Act of 1861 authorized the Legislature, if it thought fit, to take away the
powers which the High Courts exercised as successor to the Supreme Courts, and
Acts of Legislatures passed in 1872 and subsequent years had taken away the
power of the High Courts to issue prerogative writs ; and instead a statutory
power precisely defined was conferred upon the High Courts. That statutory
power underwent various changes and finally took the form of s. 491 of the
Code, as at present it stands.
The attempt to resuscitate the prerogative
writs was rejected by the Calcutta High Court in Girindra Nath Banerjee v.
Birendra Nath Pal(1) and (1) (1927) I.L.R. 54 Cal. 727.
860 by the Madras High Court in District
Magistrate, Trivandrum v. Mammen Mappillai(1). The Privy Council in Matten v. District
Magistrate, Trivandrum(2) approved the said decisions and held that the said
Act.,, have taken away the power of the High Courts to issue prerogative writs
and thereafter the only power left in the High Court was that conferred by the
statute. By reason of Art. 372 of the Constitution, the Code of Criminal
Procedure, including s. 491 thereof, continued to be in force until altered,
repealed or amended by the competent Legislature or other competent authority.
Article 225 of the Constitution expressly preserved the High Courts' powers and
jurisdiction, subject to other provisions thereof.
Admittedly, Parliament has not made anylaw
repealing s. 491 of the Code. The statutory power conferred on the High Courts
under that section is not inconsistent either Art. 32 or with Art. 226 or with
any other Article in Part III or any other Chapter of the Constitution. So, it
cannot be held that s. 491 of the Code has been impliedly superseded by Art.
226 even to the extent it empowers the High Court to give relief to persons
illegally detained by the State. Now what is the scope of that section? Though
s. 491 of the Code is remedial in form, it postulates the existence of the
substantive right. In India, as in England, the rule of law was the accepted
principle. No person can be deprived of his liberty except in the manner
prescribed by the law of the land. If a person is illegally or improperly
detained in violation of the law of the land, the High Court can direct his
release "whenever it thinks fit" so to do. The section prima facie
does not predicate a formal application ; nor does it insist that any
particular person shall approach it. The phraseology used is wide enough for
the exercise of the power suo motu by the High Court. Nor does the section
introduce an antithesis between the exercise of jurisdiction on application and
that exercised suo motu ;
that is to say, even if an application was
filed before the High Court and for one reason or other, no orders could be
passed thereon, either because of procedural defect or because it was not
pressed, (1) L.I.R. 1939 Mad. 708` (2) L.R. (1939) 66 I.A. 222.
861 nothing prevents the High Court from
acting suo motu ,on the basis of the information brought to its notice. It is
said that various High Courts framed rules regulating the procedure of the
respective High Courts, but that fact is not much relevance in the matter of
construing the section.
Shortly stated, the High Court is given an
absolute discretion to direct a person, who has been illegally detained, to be
released, whenever that fact is brought to its notice through whatever source
it may be. This jurisdiction existed long before the Constitution was made and
long before the fundamental rights were conferred upon the people under the
Constitution. The rights, substantive as well as procedural, conferred under
Part III and Art. 226 on the one hand and under s. 491 of the Code on the
other, are different. Under Arts. 32 and 226, an affected party can approach
the Supreme Court or the High Court, as the case may be, only in the manner
prescribed under Art. 32(2) or Art. 226 i.e., by way of writs and orders
mentioned therein : he must ask the court for the enforcement of this
fundamental right. The relief implies that he must establish that he has a
fundamental right, that his fundamental right has been infringed by the State
and, therefore, the Court should give the appropriate relief for the enforcement
of that right. Both the right as well as the procedure are the creatures of the
Constitution.
Whereas s. 491 of the Code assumes the
existence of the "rule of law" and confers a power on the High Court
to direct persons in illegal detention to be set at liberty.
It is not bound by any technical procedures
envisaged by the Constitution. If a person approaches the High Court alleging
that he or some other person has been illegally detained, the Court calls upon
the detaining authority to sustain the validity of the action. The onus of
proof lies on the custodian to establish that the person is detained under a
legal process ; but if it fails to establish that the person is detained under
law, the said person may be released. It is true that the detaining authority
will have to satisfy the court that the law under which the detention is made
is a valid one. It may also be true that in scrutinizing the validity of that
law the court has to go into the question whether the law offends any of the
fundamental rights mentioned 862 in Part III of the Constitution. But that
circumstance does not by any process of involved reasoning make the said
proceeding one initiated in exercise of the right to move the High Court for
the enforcement of the petitioner's fundamental right. The distinction between
the two lies in the fact that one is an enforcement of a petitioner's
fundamental right and the other, a decision on the unconstitutionality of a law
because of its infringement of fundamental rights generally.
Further, the right and the relief have a
technical and specific significance given to them by the Constitution.
They cannot be equated with the mode of
approach to the High Court under s. 491 of the Code or with the
expression" whenever it thinks fit" confers an absolute discretion on
the court to exercise its power there under or not to do so, having regard to
the circumstances of each case. While the word "may" used in a
statute was sometimes construed as imposing a duty on the authority concerned
on whom a power is conferred to exercise the. same if the circumstances
necessitated its exercise, the expression "whenever it thinks fit"
does Rot warrant any such limitation on its absolute discretion. Though ordinarily
a High Court may safely be relied upon to exercise its powers when the liberty
of a citizen is illegally violated by any authority, the said unlimited
discretion certainly enables it in extraordinary circumstances to refuse to
come to his rescue. The absolute discretionary jurisdiction conferred under s. 491
of the Code cannot be put on a par with the jurisdiction conferred under Art.
226 of the Constitution hedged in by constitutional limitations' A brief
reference to decided cases on the scope of s. 491 of the Code will make my
meaning clear.
In Alam Khan v. The Crown(1), the Full Bench
of the Lahore High Court has defined the scope of s. 491 of the Code. Ram Lall,
J., who spoke for the majority, stated, after quoting the relevant part of the
section "The language of the section places no limit on the class of
person or persons who can move a High Court with relation to a person in
custody and if the (1) (1947) I.L.R. 28 Lahore 274, 303.
863 High Court on hearing the petition thinks
fit. to do so, may make an order that he be dealt with according to law."
In Ramji Lal v. The Crown(1), a Full Bench decision of the East Punjab High
Court, Mahajan, J., as he then was, defined the wide scope of the section thus
"Whatever may be the state of English law on the subject so far as section
491 of the Criminal Procedure Code is concerned it has been very widely worded
and confers Jurisdiction on the Court to issue directions whenever it thinks
fit. The Court may be moved by the prisoner or by some relation of his, or it
may act suo motu if it acquires knowledge that a certain person has been
illegally detained.
The mode and manner in which the judge has to
be satisfied cannot affect the Jurisdiction conferred on him under section 491
of the Criminal Procedure Code." In King Emperor v. Vimlabai Deshpande(2),
a police officer made an arrest of the respondents under sub-rule I of r. 129
of the Defence of India Rules, 1939, which read : "Any police
officer........ may arrest without warrant any person whom he reasonably
suspects of having acted........ (a) in a manner prejudicial to the public
safety or to the efficient prosecution of the war."' The Judicial
Committee held that the burden was upon the police officer to prove to the
satisfaction of a court before whom the arrest was challenged that he had
reasonable grounds of suspicion and that if he failed to discharge that burden,
an order made by the Provincial Government under sub-rule 4 of r. 129 for the
temporary custody of the detenu was invalid. As the police officer failed to
discharge the onus, the Privy Council held that the High Court was right in
ordering the release of the person from custody under s. 491 of the Code of
Criminal Procedure. This shows that when a person is detained by a police
officer, the burden of establishing that the detention is valid is on him.
These authorities well establish that s. 491
of the Code does not contemplate any right to move a court by any affected
party, but the court can exercise the (1) I.L.R. (1949). II E.P. 28, 54.
(2) (1946) L.R. 73 I.A. 144.
864 statutory power whenever it thinks fit,
if the fact of illegal detention of a person is brought to its notice.
The problem may be approached from a slightly
different perspective. Three questions may be posed, namely, (1) has any person
the right to move the High Court under s. 491 of the Code to enforce his
fundamental right? (2) would it be necessary for a person detained or any other
on his behalf to allege that the detenu has a fundamental right and that it has
been infringed by State action and seek a relief for enforcement of that right?
(3) would it be obligatory on the Court to enforce the right if the said right
had been established? All the questions must be answered in the negative. Under
s. 491 of the Code there is neither a right in the person detained to move the
High Court for the enforcement of the fundamental right nor there is an
obligation on the part of the High Court to give the said relief. It is only a
discretionary jurisdiction conceived as a check on arbitrary action.
There is another aspect of the question.
Article 359 has nothing to do with statutory powers conferred by Parliament.
Article 359 expressly deals with the
constitutional right to move a court and the constitutional enforcement of that
right. So far as ordinary laws are concerned, Parliament can always amend the
law, having regard to the circumstances obtaining at a particular point of time
; for instance, Parliament could have amended s. 491 of the Code by repealing
that section altogether or by suitably amending it. Briefly stated, Art. 359
provides for the suspension of some constitutional rights in the manner
prescribed there under. The statutory rights are left to be dealt with by the
appropriate Legislature in exercise of the powers conferred on them. The
argument that the intention of the makers of the Constitution in enacting Art.
359 would be defeated, if s. 491 of the Code was salvaged, does not appeal to
me. If Parliament had amended s. 491 of the Code, which it should have done if
it intended to do so, this alleged anomaly pointed out by the learned Attorney
General could not have arisen. I would, therefore, hold that the expression
"right to move any Court for the enforcement of such of the rights
conferred by Part III" could legitimately refer 865 only to the right to
move under Art. 32 or Art. 226 of the Constitution for the said specific relief
and could not be applied without doing violence to the language used to the
exercise of the statutory power conferred on the High Courts under s. 491 of
the Code. If that be so, the expression "all proceedings pending in any
Court for the enforcement of the rights" used in the second limb of Art.
359 must also necessarily refer to proceedings -initiated in exercise of the
right to move envisaged in the first limb of the article.
I shall now proceed to consider some of the
minor points raised at the Bar. Another argument advanced on behalf of the
respondents may also be briefly noticed. It is said that while Art. 358
maintains the legislative incompetency to make laws in derogation of fundamental
rights other than those enshrined in Art. 19, Art, 359 enables the President by
an indirect process to enlarge the said legislative competency and, therefore,
Art. 359 must be so read as to confine its scope only to executive acts. I
cannot agree.
Article 359 does not ex facie enlarge the
legislative competency of Parliament or a State Legislature. It does not enable
them to make laws during the period covered by the order of the President
infringing the fundamental rights mentioned therein. It does not empower the
Legislatures to make void laws ; it only enables the President to suspend the
right to move the Court during the period indicated in his order. Once that
period expires, the affected party can move the Court in the manner prescribed
by the Constitution.
Despite Art. 358 it may happen that void laws
are made and executive actions are taken inadvertently or otherwise ; and Art.
359 is really intended to put off the enforcement of the rights of the people
affected by those laws and actions till the expiry of the President's order.
The invalidity of the argument would be clear if it was borne in mind that Art.
358 also saved executive acts infringing Art. 19, but nonetheless Art. 359 gave
protection against the exercise of the right to move any court in respect of
such acts not saved by Art. 358. If the infringement of fundamental rights by
executive action not saved by Art. 358 could not be a basis for the exercise of
a right to move during the period of suspension, 866 by the same token, laws not
saved by Art. 358 could not equally be the basis for such an action during the
said.
period. Be it as it may, the phraseology of
Art. 359 is wide enough to comprehend laws made in violation of the specified
fundamental rights.
Another argument advanced is, while Art. 358
read with Art.
13(1) and (2), maintained the constitutional
position that all laws infringing fundamental rights other than that enshrined
in Art. 19 would be void during the emergency, the President by issuing the
order he did, indirectly, in effect and substance, validated the laws
infringing Arts.14, 21 and 22, and, therefore, the issuing of the said order
must be held to be a fraud on hi s powers. This argument has no merits. It is
based upon a misapprehension of the doctrine of fraud on powers. In the context
of the application of the doctrine to a statutory law, this Court observed in
Gullapally Nageswara Rao v. Andhra Pradesh Road Transport Corporation(1) thus :
"The legislature can only make laws within its legislative competence. Its
legislative field may be circumscribed by specific legislative entries or
limited by fundamental rights created by the Constitution. The legislature can
not overstep the field of its competency, directly or indirectly. The Court
will scrutinize the law to ascertain whether the legislature by device purports
to make a law which, though in form appears to be within its sphere, in effect
and substance, reaches beyond it. If, in fact it has power to make the law, its
motives in making the law are irrelevant." To the same effect are the
observations in Gajapati Narayan Deo v. The State of Orissa(2). On the same
analogy, the President cannot overstep the limits of his power defined under
Art. 359 of the Constitution. So long as he does not exceed his power, the
effect of his order made within bounds could not conceivably sustain the plea
of fraud on powers.
Fraud on power implies that a power not
conferred is exercised under the cloak of a power conferred. But if an act can
legitimately be referred to a power conferred the intention of the person
exercising (1) [1959] Supp. 1 S.C.R. 319, 329. (2 ) [1954] S.C.R. 1.
867 the power or the effect of his exercise
of the power is irrelevant. Now, on the construction placed by me on Art.
359, the President has clearly the
constitutional power' to suspend the aforesaid right. The fact that Parliament
by taking shelter under that order may enforce void laws cannot make a valid
exercise of a power of the President one in fraud of his power.
The next argument is that the order issued by
the President is in excess of the powers conferred under Art. 359 of the
Constitution. Under Art. 359, the argument proceeds, the order made by the
President can relate to a period or the whole or a part of the territory of
India and cannot be confined to a class of persons. As the order is restricted
to persons that have. been deprived of their rights under the Defence of India
Ordinance, it is said that it is not sanctioned by the provisions of Art. 359.
There are no merits in this contention. Under the order the right to move for
the enforcement of the rights mentioned therein is suspended during the period
of emergency and it applies to the entire country. The fact that only persons,
who are deprived of their rights under the Defence of India Ordinance, cannot
exercise their right to move the Court does not make the order one confined to
a class of persons.
The Ordinance has force throughout India and
ex hypothesis only persons affected would move the Court. That does not mean
that the order is confined only to a class of persons.
The next contention is that the impugned
section suffers from the vice of excessive delegation and that in any view the
relevant rules framed are in excess of the power conferred upon the Government
by the said Act. I cannot agree with either of the two contentions. On this
aspect I have nothing more to add to that found in the judgment of my learned
brother.
But the order made by the President still
leaves the door open for deciding some, questions even under Art. 32 or Art.
226 of the Constitution. The order is a
conditional one., In effect it says that the right remains suspended if such
person has been deprived of any such right under the Defence of India
Ordinance, 1962, or under any rule or order made thereunder. The condition is
that the person should have been deprived of a right under the 868 Defence of
India Ordinance or under any rule or order made there under. If a person was
deprived of such a right not under the Ordinance or a rule or order made there under,
his right would not be suspended. If the order was made in excess of the power
conferred upon the Government by the said Ordinance, it would not be covered by
that order. If the detention was made mala fide, it would equally be not an
order made under the Ordinance.
My view on the basis of the aforesaid
discussion may be stated thus : (1) The detenus cannot exercise their right to
enforce their fundamental rights under Arts. 21, 22 and 14 of the Constitution,
during the period for which the said right was suspended by the President's
order. (2) This does not preclude the High Court to release the detenus in
exercise of its power under s. 491 of the Code of Criminal Procedure, if they
were imprisoned under a void law, though the voidness of the law arose out of
infringement of their fundamental rights under Arts. 14, 21 and 22 of the
Constitution. (3) The President's order does not preclude, even under Art.
32(1) and Art. 226 of the Constitution, the petitioners from proving that the
orders of detention were not made under the Defence of India Ordinance or the
Act either because they were made, (i) outside the provisions of the Ordinance
of the Act, or (ii) in excess of the power conferred under them, or (iii) the
detention were made mala fide or due to a fraudulent exercise of power.
I would close with a few observations. In the
view I have taken. there are three courses open to Parliament : either it can
make a valid law without infringing the fundamental rights other than those
enshrined in Art. 19 or amend s. 491 of the Code in order to maintain the
enforcement of void laws, or do both. It is not for me to suggest the right
course.
In the result, the petitions will now go to
the Constitution Bench for disposal on the said questions.
ORDER BY COURT In accordance with the opinion
of the majority the constitutional points raised in the Appeals are dismissed.
Appeals to be set down individually before a
Constitution Bench for dealing with the other contentions raised in each one of
them.
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