Sree Mohan Chowdhury Vs. The Chief
Commissioner, Union Territory of Tripura  INSC 124 (29 April 1963)
29/04/1963 SINHA, BHUVNESHWAR P.(CJ) SINHA,
BHUVNESHWAR P.(CJ) SUBBARAO, K.
DAYAL, RAGHUBAR MUDHOLKAR, J.R.
CITATION: 1964 AIR 173 1964 SCR (3) 442
R 1964 SC 381 (31,35,48) R 1966 SC 740
(3,24,75) R 1967 SC1335 (16) R 1968 SC 102 (3) RF 1976 SC1207
(14,44,315,316,355,400,434,436 R 1977 SC1027 (12)
Fundamental Rights-Proclamation of Emergency
Detention-Right to move Supreme Court-Suspension ofConstitution of India, Arts.
21, 22 and 32-President's Order dt. November 3, 1962-General Clauses Act, 1897
(10 of 1897), s. 8-Defence of India Ordinance, 1962 (4 of 1962)Defence of India
Act, 1962 (51 of 1962), s. 48.
On October 26, 1962, the President issued a
proclamation of Emergency which was later approved by both houses of
Parliament. On the same day he promulgated the Defence of India Ordinance,
1962, and under s. 3 thereof the Central Government promulgated the Defence of
India Rules, 1962. On November 3, 1962, the President issued an Order under
Art, 359 (1) of the Constitution suspending the right of any person to move any
Court for the enforcement of the rights conferred by Arts. 21 and 22 during the
proclamation of emergency "if such person has been deprived of any such
rights under the Defence of India Ordinance, 1962 or any rule made there under".
On November 20, 1962, the respondent made an order under r. 30 of the Defence
of India Rules for the detention of the petitioner. The petitioner moved the
Supreme Court under Art. 32, challenging his detention. The respondent
contended that the petition was not maintainable.
The petitioner contended that the right to
move the Supreme Court under Art. 32 being a guaranteed right could not be, and
was not, suspended and that the President's Order suspending the right was
ineffective as it was dependent on the continued existence of the Ordinance but
the Ordinance had been repealed by the Defence of India Act, 1962.
Held that the petition was not maintainable.
Though the power of the Supreme Court to issue a writ in the nature of habeas
corpus was not touched, the right of the petitioner to move the court for such
a writ was suspended by the President's 443 Order. The Order did not suspend
all the rights of a citizen to move the Supreme Court but only the rights under
Arts. 21 and 22. Since his right to move the Court was suspended he was not
entitled to challenge the vires of the Act and of the Rules. The repeal of the
Ordinance by the Defence of India Act, 1962, did not make the President's Order
ineffective. By virtue of the saving clause in s. 48 of the Act "any rules
made anything done or any action taken" under the Ordinance shall be
deemed to have been made, done or taken under the Act . Further, the reference
to the Ordinance in the President's Order was, by virtue of s. 8 of the General
Clauses Act, to be read\ as areference to the Act. The word
"instrument" in s. 8 included the President's Order.
ORIGINAL JURISDICTION: .Habeas Corpus
Petition No. 15 of 1963.
Hebeas Corpus Petition under Art. 32 of the
Constitution of India.
R. K. Garg, for the petitioner.
S. V. Gupta, Additional Solicitor-General of
India D. R. Prem, R. H. Dhebar and R. N. Sachthey, for the respondent.
S.C. Agarual, R. K. Garg, M. K. Ramamurthi
and D. P. Singh, for the intervener.
1963. April 29. The judgment of the Court was
delivered by SINHA C. J.-On October 26, 1962, the President having been
satisfied that a grave national emergency exists.
whereby the security of India or any part of
the territory thereof is threatened by the Chinese aggression, issued a
Proclamation declaring the Emergency, under Art. 352 of the Constitution. That
declaration of emergency was laid before both Houses of Parliament on November
8,1962, and was approved by the Rajya Sabha on November 13, 1962, and by the
Lok Sabha on November 14, 1962.
444 After the Proclamation of Emergency, as
Parliament was not in session, and as the President was satisfied that
circumstances existed which rendered it necessary for him to take immediate
action for exercise of the powers conferred by cl. (1.) of Art. 123 of the
Constitution, he promulgated the Defence of India Ordinance (IV of 1962) on the
same date-Octobcr 26, 1962. by s. 3 of the Ordinance, the Central Government
has been empowered to make rules as appear to be 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 by
notification in the official gazette. In exercise of those powers, the Central
Government promulgated the Defence of India Rules, 1962, by notification in the
Official Gazette, Extraordinary dated November 5, 1962. The relevant portion of
r. 30 is as follows:
"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 acting in any manner prejudicial to the defence
of India and civil de fence, the public safety, the maintenance of public
order, India's relations with foreign powers, the maintenance of peaceful
conditions in any part of India or the efficient conduct of military
operations, it is necessary so to do, may make an order:x x x (b) directing
that he be detained;
x x x During the operation of the
Proclamation of Emergency the, President issued, on November 3, 1962, 445 the
following Order suspending the right to move any Court for the enforcement of
rights conferred by Arts. 21 and 22 of the Constitution "In exercise of
the powers conferred by clause (1) of article 359 of the Constitution, the
President hereby declares that right of any person to move any court for the
enforcement of the rights conferred by article 21 and article 22 of the
Constitution shall remain suspended for the peried during which the
Proclamation of Emergency issued under clause (1) of article 352 thereof on the
26th October 1962, is in force, if such person has been deprived of any such
rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or
order made thereunder." In exercise of the power conferred by r. 30
aforesaid of the Defence of India Rules, the Chief Commissioner of Tripura
issued an order of detention in respect of the petitioner on November 20, 1962
"No. F. 22 (59)-PD/62 TRIPURA ADMINISTRATION OFFICE OF THE CHIEF
Agartala, November 20, 1962.
ORDER WHEREAS, 1 am satisfied that Shri Bipul
alias Mohan Chaudhri S/o Sri Bimala Charan Chaudhri of Sutarmura P. S. Bisalgar
should be detained with a view to preventing him/her from acting in any manner
prejudicial to the defence of India and Civil defence, public safety, the
maintenance of 446 public order, India's relations with foreign powers and the
maintenance of peaceful conditions in Tripura.
Now therefore, in exercise of the powers
conferred by Rule 30 of the Defence of India Rules, 1962 read with subrule (11)
of Rule 2 of the aforesaid Rules and all other powers enabling in that behalf,
I hereby direct that the aforesaid person be detained in the Central jail at
Agartala until further orders.
Sd/(S. P. Mukerjee) Chief Commissioner,
Tripura." By a subsequent order dated December 3, 1962, of the Chief
Commissioner Tripura, the petitioner was transferred from Agartala Central jail
to Hazaribagh Central jail. The order is in these terms :
"TRIPURA ADMINISTRATION HOME DEPARTMENT
No.-F. 22 (59)-PD/62.
Agartala, December 3, 1962.
Agrayahana 12, 1884, ORDER In exercise of the
powers conferred by sub-rule (5) of Rule 30 of the Defence of India Rules, 1962
read with subrule (11) of Rule 2 of the said Rules and all other powers
enabling in that behalf, I hereby direct that detenue Shri Bipul Chaudhury
alias Mohan son of L. Bimala Charan Chaudhury of Sutarmura, Bishalgarh P. S. be
transferred from Agartala Central jail to Hazaribagh Central jail, Bihar for
detention in that jail, until further orders.
2. The consent of the Government of Bihar has
447 been obtained for the removal of the aforesaid detenue from this Territory
to the place mentioned above (vide their telegram No. 940-Political Special,
dated the 1st December 1962).
Sd/(S. P. Mukerjee) Chief Commissioner,
Tripura." In the meantime, the Petitioner had made a petition under Art.
32 of the Constitution for a writ of Habeas Corpus against his detention, as
aforesaid. This petition is dated November 30. 1962, while the petitioner was
still in the Agartala Central jail. It appears the petition under Art. 32 of
the Constitution was not immediately forwarded to this Court by the authorities
of the Tripura Administration.
Hence, the petitioner sent a petition from
the Hazaribagh Central jail in Bihar, dated December 15, 1962/ December 18, 1962
for initiating proceedings for contempt of Court against the Chief
Commissioner, the Union Territory of Tripura. In that petition, after stating
the facts of his detention, he stated that while in detention in the Agartala
Central jail, the petitioner had submitted a petition under Art. 32 of the
Constitution for a writ of Habeas Corpus and that the same had not been sent to
this Court and had been withheld. He further stated that the jailor, Agartala
Central jail,, had informed the petitioner that the petition had been sent to
Tripura Administration for ascertaining whether actually a writ petition lay
under the Defence of India Rules. When this petition was put up before this
Court on January 28, 1963, this Court directed the issue of notice to the opposite
party. In obedience to the notice Shri S.C Mazumdar, judicial Secretary, Union
Territory of Tripura, made an affidavit to the effect that he had attended to
the matter which was the subject of the notice and that he had not the
slightest intention to disregard or disobey the authority of this Court. He
further tendered, on his own 448 behalf and on behalf of the Chief
Commissioner, Tripura, an unconditional apology. He also produced the original
petition under Art. 32, dated November 30, 1962, and went on to state that when
the petition was placed before him, on a consideration of the Defence of India
Rules, and the President's Order aforesaid dated November 3, 1962, he took the
view that the petition was not maintainable and that, therefore, "nothing
need be done". He admitted his mistake, and realised after consultation
with the Government counsel that the Government should not have taken upon
itself to decide whether the petition was maintainable or not and that the same
should have been forwarded to this Court. He further stated that the advice
tendered to the Tripura Administration was bona fide and that he extremely
regretted that the action on his part "should have resulted in a wrongful
act on the part of our administration". When the matter was placed before
this Court, the Division Bench, by its order dated February 18, 1963, accepted
the unconditional apology on behalf of Mr. S. C. Mazumdar and further directed
that the Habeas Corpus petition be posted for preliminary hearing. The Constitution
Bench thereafter, by its order dated March 27, 1963, directed the issue of
Rule, and hearing of the case within 10 days. As the petitioner had appeared at
the hearing, it was further directed that he be detained in Delhi jail till the
disposal of the writ petition. When the matter came up before us for final
hearing, we directed that in view of the important consititutional issues
involved it would be more convenient if the petitioner was represented before
us by counsel. Mr. R. K. Garg has taken great pains over this case and has
placed all possible considerations before us for which the Court is obliged to
him. The learned Additional SolicitorGeneral appeared to. show cause on behalf
of the respondent, the Chief Commissioner, Union Territory of Tripura. We have
fully heared counsel for both parties. There was an 449 intervention petition
on behalf of one Shri Raj Kumar Vohra, detained by District Magistrate,
Saharanpur, in a similar writ petition under Art. 32 of the Constitution. As
the points to be raised in his petition were said to be similar to those in the
present petition, we allowed the intervention.
The learned counsel for the respondent has
taken the preliminary Objection to the hearing of the writ petition on merits,
on the ground that the President having suspended the enforcement of the rights
under Arts. 21 -and 22 of the Constitution, by his Order dated November 3,
1962, quoted above in extenso, the petitioner cannot move this Court under Art.
32 to enforce the right claimed by him. In answer to this preliminary
objection, Mr. Garg has vehemently argued that the right guaranteed by Art. 32
cannot be suspended under Art. 359, because, it is said, that Article does not
authon'se the suspension of the exercise of the rights. He further contended
that the right to move this Court under Art. 32 itself being a guaranteed right
has not been suspended by the Order aforesaid of the President and that the
order suspending the right to move this Court depended on the condition
precedent that there was a valid Ordinance and rules framed and order made
thereunder. The contention further is that the condition precedent is not
fulfilled because the Ordinance (IV of 1962) apart from being invalid for want
of legislative competence, has spent its force on its being repealed by Act (LI
of 1962). It is contended, in other words, that the immunity from attack would
be available, if at all, only in respect of something done under the Ordinance,
but as there was no fresh Order by the President under Art. 359, after the
Ordinance had been replaced by the Act a, aforesaid, the petitioner was
entitled to go into the merits of the controversy and could show that the
Defence of India Act was unconstitutional and that the Rules framed thereunder
were equally so. In 450 our opinion, the preliminary objection is well-founded.
We accordingly intimated to the parties that the Court having accepted the
validity of the preliminary objection did not propose to hear the merits of the
case and that our reasons for coming to that conclusion will be given later. We
now proceed to state our reasons for that conclusion.
The right to move this Court for the
enforcement of the fundamental rights guaranteed under the Constitution is
itself a guaranteed right. But cl. (4) of Art. 32 itself provides that the
right so guaranteed could be suspended in accordance with the provisions of the
Constitution. We have stated in a positive form what has been provided for in
the negative form by cl. (4), which runs as follows :
"The right guaranteed by this article
shall not be suspended except as otherwise provided for by the Constitution.
Now what is the provision made by the
Constitution in view of the said clause of Art. 32? On the Proclamation of
Emergency by the President on October 26, 1962, as aforesaid, the provisions of
Art. 19, setting out the different freedoms which all citizens have the right
to enjoy, are suspended with the result that the power to make any law or to
take any executive action is not fettered so long as the Proclamation continues
to operate (Art. 358).
Secondly, during that period the President is
empowered by Art. 359 (1), by order to suspend the right to move any Court for
the enforcement of the Fundamental Rights contained in Part III of the
Constitution. The Order of the President dated November 3, 1962, already set
out., in terms, suspends the right of any person to move any Court for the
enforcement of the rights conferred by Arts. 21 and 22 of the Constitution,
during the period of the Emergency.
Prima facie, therefore, 451 the petitioner's
right to move this Court for a writ of Habeas Corpus, as he has purported to do
by this petition, will remain suspended during the period of the Emergency.
But even then it has been contended on behalf
of the petitioner that Art. 359 does not authorise the suspension of the
exercise of the right guaranteed under Art, 32 of the Constitution, and that,
in terms, the operation of Art. 32 has not been suspended by the President.
This contention is wholly unfounded. Unquestionably, the Court's power to issue
a writ in the nature of habeas corpus has not been touched by the President's
Order, but the petitioner's right to move this Court for a writ of that kind
has been suspended by the Order of the President passed under Art.
359 (1). The President's Order does not
suspend all the rights 'Vested in a citizen to move this Court but only his
right to enforce the provisions of Arts. 21 and 22. Thus, as a result of the
President's Order aforesaid, the petitioner's right to move this Court, but not
this Court's power under Art. 32, has been suspended during the operation of
the Emergency, with the result that the petitioner has no locus standi to
enforce his right, if any, during the Emergency.
It was also contended that the President's order
of November 3, 1962, is subject to the condition precedent that there is a
valid ordinance and the rules framed or the orders made thereunder are valid.
In other words, it is contended that it is open to the petitioner to canvass
the validity of the Ordinance. This is arguing in a circle. In order that the
Court may investigate the validity of a particular ordinance or act of a
legislature, the person moving the Court should have a locus standi. If he has
not the locus standi to move the Court, the Court will refuse to entertain his
petition questioning the vires of the particular legislation. In view of the
President's Order passed under the provisions of Art. 359 (1) of the
Constitution, the petitioner has 452 lost his locus standi to move this Court
during the period of Emergency as already pointed out. 'That being so, this
petition is not maintainable.
But it has been argued in the alternative
that assuming that the Ordinance is valid and the President's Order operates
against the petitioner, the words of the last clause in the President's Order,
beginning with "if such person" arc not fulfilled because the
Ordinance has been repealed by the Act (LI of 1962), as aforesaid. The
question, there. fore arises : What is the effect of those words? The learned
Solicitor-General has put his argument in two alternative ways. Firstly he
argued, that those words were descriptive of the person who has been detained
and not that they lay down a condition precedent, as contended on behalf of the
peritioner, Prima facie it is difficult to accept this argument but we need not
pursue it in view of the conclusion we have reached on the alternative argument
to be presently dealt with. Alternatively he contended, that, under s. 8 of the
General Clauses Act (X of 1897), s. 48 of the Act (LI of 1962), which repeals
Ordinances 4 and 6 of 1962 and which saves anything done or any action taken
under those Ordinances has to be construed in such a way as to continue the
Detention Order made under r. 30 of the Defence of India Rules, even after the
repeal of the Ordinance under which they were promulgated. Section 48 is in
"48 (1). The Defence of India Ordinance,
1962 and the Defence of India (Amendment) Ordinance 1962, are hereby repealed.
(2) Notwithstanding such repeal, any rules
made, anything done or any action taken under the Defence of India Ordinance,
1962, as amended by the Defence of India (Amendment) Ordinance, 1962 shall be
deemed to have been 453 made, done or taken under this Act as if this Act had
commenced on the 26th October 1962." It is contended on behalf of the
petitioner that by virtue of sub-s. (2) of s. 48, quoted above, the detention
order passed against the petitioner will be deemed to have been made under the
Defence of India Act, 1962, and that, therefore, the President's Order of
November 3, 1962 which has reference to the detention order passed against the
petitioner under the Defence of India Ordinance and the Rules thereunder, was
wholly inoperative. The Ordinances aforesaid had been promulgated by the
President when Parliament was not in session. They had the same force and
effect as an Act of Parliament, but they Would cease to operate at the
expiration of 6 weeks from the re-assembly of Parliament. of necessity,,
therefore, the Act had to take the place of the Ordinances within that period
if the special measures in the interest of public safety had to be continued.
Hence, the Parliament had to enact the very same provisions, with the
consequential additions and alternations, of the Ordinance 4 and Ordinance 6
The Defence of India Act (LI of 1962) itself,
in the preamble recites the Proclamation of Emergency by the President and the
necessity to provide for special measures to ensure public safety and interest.
The Act came into force on December 12, 1962. By operation of s.48 of this Act,
the Ordinances aforesaid have been repealed, but all action taken and all rules
made there under have been continued in operation by introducing the fiction
that they shall be deemed to have been made or taken under the Act, which is
deemed to have commenced on October 26, 1962, the date Ordinance 4 was
promulgated. The President's Order of November 3, 1962, suspending the
petitioner's rights under Arts. 21 and 22 of the Constitution, was made when
Ordinance, 4 of 1962 was in operation, and, 454 therefore, had to take note of
the facts as they then existed. Section 8(1) of the General Clauses Act, which
applies to the construction of Act (LI of 1962), is in these terms :
"8(1) where this Act, or any Central Act
or Regulation made after the commencement of this Act, repeals and re-enacts,
with or without modification, any provision of a former enactment, then
references in any other enactment or in any instrument to the provision so
repealed shall, unless a different intention appears, be construed as
references to the provision so re-enacted." Are the provisions set out
above applicable to the construction of the Order of November 3, 1962, passed
by the President suspending the petitioner's right to move this Court? It has
not been contested that those provisions applied to the construction of the Act
(LI of 1962), which repeals and re-enacts the provisions of the Ordinances afor
said. But then the question arises whether they are available in construing the
following words of the President's Order ",If any such person has been
deprived of any such rights under the Defence in India Ordinance, 1962 (4 of
1962) or any rule or order made there under".
Is the President's Order in question an
"instrument" within the meaning of the section? The General Clauses
Act does not define the expression "instrument". Therefore, the
expression must be taken to have been used in the sense in which it is
generally understood in legal parlance. In Stroud's Judicial Dictionary of
Words and Phrases (Third Edition, 455 Volume 2, page 1472),
",instrument" is described as follows :
"'An 'instrument' is a writing, and
generally imports a document of a formal legal kind.
Semble, the word may include an Act of Parliament.........
(11) Convincing Act, 1881 (44 & 45 Vict. c.41), s.2(xiii), 'instrument'
includes deed, will, in closure, award and Act of Parliament.........
The expression is also used to signify a deed
interprets or a charter or a record or other writing of a formal nature. But in
the context of the General Clauses Act, it has to be understood as including
reference to a formal legal writing like an Order made under a statute or
subordinate legislation or any document of a formal character made under constitutional
or statutory authority.
We have no doubt in our mind that the
expression "instrument" in s.8 was meant to include reference to the
Order made by the President in exercise of his constitutional powers. So
construed the President's Order would, even after the repeal of the Ordinance
aforesaid continue to govern cases of detention made under r. 30 aforesaid
under the Ordinances. It must therefore, -be held that there is no substance in
the contention that the petitioner's detention originally made under the rule
under the Ordinance would not be deemed to have continued under the Act (LI of
1962). Equally clearly, there is no substance in the contention that the same
Order should have been repeated by the President after the enactment of the
Act. It would have been a sheer act of supererogation and the legal fiction
laid down in s.8 is meant to avoid such unnecessary duplication of the use of
the constitutional machinery. A proper construction of the provisions of s.48
of the Act, which has replaced the Ordinances aforesaid, read in the light of
the provisions of s.8 of the General Clauses Act 456 leaves no room for doubt
that the detention order passed against the petitioner was intended to be
continued even after the repeal of the Ordinances which were incorporated in
the Act (LI of 1962). That being so, the Order of the President must have the
effect of suspending the petitioner's right to move this Court for a writ of
habeas corpus under Art. 32 of the Constitution. After the petititioner had been
deprived, for the time being, of his right to move this Court, it is manifest
that he cannot raise any questions as regards the vires of the Ordinances or of
the Rules and Orders made there under. In the result, the application is held
to be not maintainable, and, is therefore, dismissed.