Ghulam Sarwar Vs. Union of India &
Ors  INSC 267 (15 December 1966)
15/12/1966 RAO, K. SUBBA (CJ) RAO, K. SUBBA
(CJ) HIDAYATULLAH, M.
CITATION: 1967 AIR 1335 1967 SCR (2) 271
O 1968 SC 765 (8,9,11,19,20,21) R 1972 SC2215
(2) RF 1973 SC1461 (836) RF 1980 SC1789 (106) RF 1981 SC 728 (4,10,12) E 1981
SC1621 (7,8) R 1988 SC1531 (189)
Practice--Order of High Court dismissing
petition for issue of writ of habeas corpus--Petition to Supreme Court under
Art. 32--Order of High Court if res judicata.
Constitution of India, 1950, Art. 359--If
President can issue more than one order--Order--applicable only to
foreigners--If violative of Art 14.
Foreigners Act (31 of 1946)., s. 3(2)
(g)--Detention under for investigation into conspiracy to smuggle gold--If mala
Supreme Court Rules, O.35, rr. 3 and 4 Scope
After the President of India issued a
Proclamation of Emergency under Art. 352(1) of the Constitution in October
1962, he issued two orders under Art. 359(1) which were subsequently amended.
By one, as amended, the right of a foreigner to move any court for the
enforcement of the rights conferred by Arts. 14, 21 and 22 of the Constitution
was suspended during the period of emergency. By the other order, as amended,
the right of any person to move any court for the enforcement of the rights
conferred by Arts. 14, 21 and 22 was suspended among the per of emergency, if
such person was deprived of any such 'rights under the Defence of India
Ordinance, 1962, or any rule or order there under.
In 1964, the petitioner, who was a Pakistani
national, was arrested for an offence under the Indian Customs Act, 1962.
When he was about to be enlarged on bail he
was detained by an order under s. 3 (2) (g) of the, Foreigners Act, 1946.
According to the respondent, the petitioner
was detained as investigation was in progress in respect of a case of
conspiracy to smuggle gold, in which the petitioner was involved. Thereafter,
he was tried and convicted for the offence under the Customs Act and sentenced
to 9 months imprisonment. Before the expiry of the term of imprisonment he
moved the High Court for the issue of a writ of habeas corpus, but the petition
was dismissed. After serving the sentence he moved this Court, under Art. 32,
again for the issue of a writ of habeas, corpus raising now contentions as to
the validity of s. 3(2) (g) of the Foreigners Act and the President's order
under Art.359(1), relating to foreigners.
HELD (Per Subba Rao, C. J. Hidayatullah,
Sikri and Shelat, JJ.): (1) The order of the High Court does not operate as res
judicata, either because it is not a judgment or because the principle is not
applicable to a fundamentally lawless order, and this Court has to decide the
petition on merits.
[277 D] In the case of a High Court, when it
functions as a Divisional Bench it speaks for the entire court, and therefore,
it cannot set aside the order made by another Divisional Bench in a petition
for a writ of habeas corpus, except on fresh evidence. But when the person
detained 272 files an original petition for habeas corpus before this Court
under Art. 32, the order of-the High Court will not operate as res judicata. If
the doctrine of res judicata is applicable in such a case so would be the
doctrine of constructive res judicata, and, if a petitioner could have raised a
contention which would make the detention order 'fundamentally lawless, but did
not do so in the High Court, it would be deemed to have been raised, and this
Court, though enjoined by the Constitution to protect the right of a person
illegally detained, may become powerless to do so.
[276 F-H; 277 A-C] Daryao v. State of U.P.
 1 S.C.R. 574, referred to.
(2) Article 359 empowers the President to
make an order for the purpose mentioned therein, and as the singular includes
the plural,, he can make different orders applicable to different groups of
persons. There is nothing in the, Article which prevents the President from
restricting the scope of an order to a class of persons, namely, foreigners.
[280 A-C] (3) There is a distinction between
the President's order and the effect of that order. Under Art. 359(1) the
President can only make an order which is valid. If the order does not violate
Art. 14 it can validly take away the right to move the court to enforce Art.
14. But an order making an unjustified discrimination in suspending the right
to move a court under Art. 14 itself, will be void at its inception. Therefore,
the validity of the President's order issued under Art. 359(1) could be
questioned if it infringed the provisions of Art. 14 of the Constitution. [280
F-H] Sree Mohan Chowdhury v. Chief Commissioner, Tripura,  3 S.C R. 442,
(4) There is however; a clear nexus between
the classification into foreigners and citizens, and the object sought to be
achieved by the President's orders. Therefore the making of two orders, one
confined to foreigners and the other applicable to all persons including
foreigners, does not violate Art. 14. The two orders are mainly intended to
operate in different fields and their scope is different, though there is some
overlapping. There was a greater danger from the subversive activities of
foreigners, and therefore,. it was necessary to issue a special order, wider in
scope and taking in other rights, than that which was confined only to persons
who had been deprived of certain rights under the Defence of India Ordinance.
[282 A-D] (5) As the President's order suspending the right to move the court
to enforce the right under Art. 14 is valid, the petitioner has no right to
move the court subsequent to the inclusion of Art. 14 in the President's order
relating to foreigners. The fact that he complained of his detention for a
period earlier than the amendment has no-bearing on the question of
maintainability of the petition. [282 H; 283 A] (6) If the petitioner was in
fact involved in a conspiracy to smuggle gold, there is no reason why the wide
power conferred on the Central Government to detain him under s. 3(2)(g) of the
Foreigners Act could not be invoked. Such a detention for the purpose of
investigation was not mala fide. [283 F-G] [The question whether this Court can
ascertain whether the action of the Executive in declaring the emergency or
continuing it is actuated by mala fides and is an abuse of its power, left
open.] [278 E] Per Bachawat, J : (1) The order of dismissal by the High Court
does not operate as res judicata and does not bar the petition under Art. 32,
273 asking for the issue of a writ of habeas corpus on the same facts. The
petitioner has the fundamental right to move this Court under Art. 32 and the
petition must therefore be entertained and examined on merits. The order of the
High Court is not a judgment; and the previous dismissal of such a petition by
the High Court is only one of the matters which this Court may take into
consideration under 0. 35, rr. 3 and 4 of the Supreme Court Rules, before
issuing a rule nisi. The petitioner, however, would not have a right to move
this Court under Art. 32, more than once on the same. facts. [283 H; 284 A-C]
(2) Assuming that the President's order under Art. 359(1) is "law"
within the meaning of Art. 13(2), and can be pronounced invalid on the ground
that it abridges or takes away the right conferred by Art. 14, the order in the
present case is not discriminatory and is not violative of Art. 14.,[285 E-F]
ORIGINAL JURISDICTION : Writ Petition No. 155
Writ Petition under Art. 32 of the
Constitution of India for the enforcement of fundamental rights.
R. V. Pillai, for the petitioner.
N. S. Bindra and R. N. Sachthey, for
respondents Nos. 1 to 3.
The Judgment of SUBBA RAO, C.J.,
HIDAYATULLAH, SIKRI and SHELAT, JJ. was delivered by SUBBA RAO, C.J. BACHAWAT,
delivered a seperate Concurring Judgment.
Subba Rao, C.J. This petition under Article
32 of the Constitution of India raises the question of validity of the
detention of the petitioner under s. 3 of the Foreigners Act, 1946 (Act No. 31
of 1946) (hereinafter called the Act).
The petitioner is a Pakistani national who
entered India without any travel documents. On May 8, 1964, he was arrested in
New Delhi by the Customs Authorities under S.
135 of the Indian Customs Act, 1962. On May
9, 1964, he was ordered to be enlarged on bail. On May 18, 1965, he was ordered
to be released. When he was about to be released from jail, a detention order
was served on him by the Central Government under S. 3(2)(g) of the Act. it was
said that he had to be detained, as police investigation was in progress in
respect of a case of conspiracy to smuggle gold of which he was a member. On
May 29, 1965, he was convicted by the Magistrate, First-Class, Delhi, of an
offence under the Customs Act and sentenced to undergo rigorous imprisonment
for a period of 9 months and to pay a fine of Rs. 2,000/-. The appeal filed by
him to the Sessions Judge against that order was dismissed. The petitioner
underwent imprisonment and also paid the fine. Before his term of imprisonment
expired, the petitioner filed a writ of habeas corpus in the Circuit Bench of
the Punjab High Court at Delhi challenging his detention. That petition was
dismissed by Khanna, J., on merits. Before the learned Judge the constitutional
validity of s. 3(2)(g) of the Act was not canvassed. The Sup. CI/67-4 274
learned Judge held that the section authorised the Government to make the said
order of detention on its subjective satisfaction and that the Court could not
question its validity in the absence of any mala fides. He negatived the
contention raised before him that an order under that sub-section could not be
made for the purpose of completing an investigation in a conspiracy case, as no
such limitation was found therein. In short, he dismissed the petition on
The present petition was filed in this Court
under Article 32 of the Constitution on May 12, 1966 for issue of a writ of
habeas corpus against the respondents directing them to set him at liberty on
the ground that the provisions of the Act were invalid. Before we consider the
various contentions raised by Mr. R. V. Pillai in support of the petition, we
would at the outset deal with a preliminary objection raised by Mr. N. S.
Bindra, learned counsel appearing for the respondents. Mr. N. S. Bindra,
contended that the order made by Khanna, J., dismissing the writ of habeas
corpus filed in the Circuit Bench of the Punjab High Court operated. as res
judicata and barred the maintainability of the present application. The
decision of this Court in Daryao v. The State of U. P.(1) was relied upon in
support of the said contention. There, the High Court dismissed a writ petition
under Art. 226 of the Constitution after hearing the matter on merits, on the
ground that no fundamental right was proved or contravened and that its
contravention was constitutionally justified.
The petitioner therein did not prefer an
appeal against that order to this Court; but he filed an independent petition
under Art. 32 of the Constitution in this Court on the same facts and for the
same reliefs. This Court held that the petition in this Court would be barred
by the general principles of res judicata. That decision related to a right
claimed by the petitioners therein. The petitioners in that case sought to
enforce their fundamental right to property which had been negatived by the
High Court in its order made on an application presented by them under Art.
226 of the Constitution. While upholding the
plea of res judicata, this Court made the following observations in the context
of the said plea vis-a-vis the writ of habeas corpus :
"In England, technically an order passed
on a petition for habeas corpus is not regarded as a judgment and that places
the petitions for habeas corpus in a class by themselves.
Therefore, we do not think that the English
analogy of several habeas corpus applications can assist the petitioners in the
present case when they seek to resist the application of res judicata to
petitions filed under Art. 32.
Before we part with the topic, we would,
however, like to (1) 1 S.C.R. 574,590275 add that we propose to express
no opinion on the question as to whether repeated applications for habeas
corpus would be competent under our Constitution. That is a matter with which
we are not concerned in the present proceedings." A decision which
expressly leaves open a question cannot obviously be an authority on the said
question. 'the said question, which was so left open, now falls to be decided.
Conversely, the correctness of that decision
does not call for any reconsideration in the present petition, for that is
outside the scope of the question now raised before us.
This leads us to the consideration of the
scope of a writ of habeas corpus. The nature of-the writ of habeas corpus has
been neatly summarized in Corpus Juris Secundum, Vol. 39 at p. 424 thus
"The writ of habeas corpus is a writ directed to the person detaining
another, commanding him to produce the body of the prisoner at a designated
time and place, with the day and cause of his caption and detention, to do,
submit to, and receive whatsoever the court or judge awarding the writ shall
consider in that behalf".
Blackstone in his Commentaries said of this
writ thus It is a writ antecedent to statute, and throwing its root deep into
the genius of our common law.... It is perhaps the most important writ known to
the constitutional law of England, affording as it does a swift and imperative
remedy in all cases of illegal restraint or confinement. It is of immemorial
antiquity, an instance of its use occurring in the thirty-third year of Edward
This writ has been described by John
Marshall, C.J., as "a great constitutional privilege". An eminent
judge observed "there is no higher duty than to maintain it
It was described as a magna carta of British
liberty. Heavy penalties are imposed on a judge who wrongfully refuses to
entertain an application for a writ of habeas corpus. The history of the writ
is the history of the conflict between power and liberty. The writ provides a
prompt and effective remedy against illegal restraints. It is inextricably
intertwined with the fundamental right of personal liberty.
"Habeas Corpus" literally means
"have his body". By this writ the court can direct to have the body
of the person detained to be brought before it in order to ascertain whether
the detention is legal or illegal. Such is the predominant position of the writ
in the AngloSaxon jurisprudence.
We need not go into the history of this writ
in India, for it is now incorporated in Art. 226 and Art. 32 of the
276 On the question of res judicata, the
English and the American Courts agreed that the principle of res judicata is
not applicable to a writ of habeas corpus, but they came to that conclusion on
different grounds. It was held in England that a decision in a writ of habeas
corpus was not a judgment, and therefore it would not operate as res judicata
and on that basis it was thought at one time that a person detained could file
successive applications before different judges of the same High Court. But
subsequently the English courts held that a person detained cannot file
successive petitions for a writ of habeas corpus before different courts of the
same Division or before different Divisions of the same High Court on the
ground that the Divisional Court speaks for the entire Division and that each
Division for the entire Court, and one Division cannot set aside the order of
another Division of the same Court [See Re Hastings (1) (No. 2) and Re Hastings
(2) (No. 3)]. The Administration of Justice Act, 1960 has placed this view on a
statutory basis, for under the said Act no second application can be brought in
the same court except on fresh evidence. The American Courts reached the same
conclusion, but on a different principle. In Edward M. Fay v. Charles Nola (3)
the following passage appears : "As put by Mr.
Justice Holmes in Frank v. Mangum (4) : If
the petition discloses facts that amount to loss of jurisdiction in the trial
court, jurisdiction could not be restored by any decision of law. It is of the
historical essence of habeas corpus that it lies to test proceedings so
fundamentally lawless that imprisonment pursuant to them is not merely
erroneous but void. Hence, the familiar principle that res judicata is
inapplicable in habeas proceedings." The same view was expressed in Wong
Doo v. United States (5) Harmon Metz Waley v. James A. Johnston (6) : Salinger
v. Loisel (7) United States v. Shaughnessy (8): and others.
But coming to India, so far as the High
Courts are concerned, the same principle accepted by the English Courts will
equally apply, as the High Court functions in Divisions not in benches. When it
functions as a Division, it speaks for the entire court, and, therefore, it
cannot set aside the order made in a writ of habeas corpus earlier by another
Division Bench. But this principle will not apply to different courts. The High
Courts of Allahabad, Bombay, Madras, Nagpur and Patna and East Punjab have
accepted this view, though the Calcutta High Court took the view that
successive applications of habeas corpus could be filed.
But unlike in England, in India the person
detained can file original petition for enforcement of his fundamental right to
liberty before a court other than the High Court, namely, this Court. The order
of the High Court (1)  3 AII.E.R. 625. (2)  1 All. E.R. 698.
(3) 9 L. Ed. 859. (4) 237 U.S. 348.
(5) 68 L.E.D. 999. (6) 86 L. E.d. 1302.
(7) (1925) 265 U.S. 224. (8)  347 U.S.
277 in the said writ is not res judicata as
held by the English and the American Courts either because it is not a judgment
or because the principle of res judicata is not applicable to a fundamentally
lawless order. If the doctrine of res judicata is attracted to an application
for a writ of habeas corpus, there is no reason why the principle of constructive
res judicata cannot also govern the said application, for the rule of
constructive res judicata is only a part of the general principles of the law
of res judicata, and if that be applied, the scope of the liberty of an
individual will be considerably narrowed. The present case illustrates the
position. Before the High Court the petitioner did not question the
constitutional validity of the President's order made under Art. 359 of the
Constitution. If the doctrine of constructive res judicata be applied, this
Court, though it is enjoined by the Constitution to protect the right of a
person illegally detained, will become powerless to do so. That would be
whittling down the wide sweep of the constitutional protection.
We, therefore, hold that the order of Khanna,
J., made in the petition for habeas corpus filed by the petitioner does not
operate as res judicata and this Court will have to decide the petition on
It was suggested that the declaration of
Emergency under Art. 352 of the Constitution in the year 1962 and the
continuation of the emergency for 4 long years after the cessation of the
hostilities with China is mala fide and is an abuse of powers conferred on the
President under Part XVIII of the Constitution. The question raised involves
two points : (1) whether the declaration of emergency or the continuation of it
is vitiated by mala fides or abuse of power, and (2) whether such a question'
justiciable in a court of law. Our Constitution seeks to usher in a Welfare
State where there is prosperity, equality, liberty and social justice. It
accepts 3 concepts for bringing about such a State: (1) Federalism; (2)
Democracy; (3) Rule of Law, in which fundamental rights and social justice are
inextricably integrated. Under Part XVIII when the emergency is declared both
the Legislative and the Executive powers of the Union are extended to States.
The Federal Government is practically transformed into unitary form of
Government. The fundamental rights of the people under Art.
19 are abrogated and the Executive is
empowered to suspend the right to move the court for the enforcement of any
other fundamental right. The executive is also empowered to direct that all or
any other provisions relating to distribution of revenue be suspended during
Part XVIII appears to bring down the grand
edifice of our Constitution at one stroke, but a little reflection discloses
that the temporary suspension of the scheme of the Constitution is really
intended to preserve its substance.
This extra ordinary power is unique to our
278 Constitution. It reflects the apprehensions of the makers of the
Constitution and their implicit confidence in the parties that may come into
power from time to time. Two expressions indicate the extra ordinary situation
where under this Part was intended to come into force. The expression 'grave
emergency' in Art. 352(1) and the expression 'imminent danger' in Art. 352(3)
show that the existence of grave emergency or imminent danger is a
pre-condition for the declaration of emergency. Doubtless, the question whether
there is grave emergency or whether there is imminent danger as mentioned in
the Article is left to the satisfaction of the Executive, for it is obviously
in the best position to judge the situation. But there is the correlative
danger of the abuse of such extra ordinary power leading to totalitarianism.
Indeed, the perversions of the ideal democratic Constitution i.e. Weimar
Constitution of Germany, brought about the autocratic rule of Hitler and the
consequent disastrous World War. What is the safeguard against such an abuse?
The obvious safeguard is the good sense of the Executive, but the more
effective one is public opinion. A question is raised whether this Court can
ascertain whether the ,action of the Executive in declaring the emergency or
continuing 'it is actuated by mala fides and is an abuse of its power. We do
/not propose to express our opinion on this question as no material has been
placed before us in that regard. It requires a careful research into the
circumstances obtaining in our country and the motives operating on the minds
of the persons in power in continuing the emergency. As the material facts are
not placed before us, we shall not in this case express our opinion one way or
other on this all important question which is at present agitating the public
Mr. Pillai then contended that the power of
the President under Art. 359(1) to suspend the right to move any court for the
,enforcement of fundamental rights must have a real nexus to the security of
India, and that the impugned order had no such nexus. The President's order
under Art. 359(1) of the Constitution reads "GSR-1418/30-10-62 : 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 who is(a)
a foreigner, or (b) 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 period during which the Proclamation of Emergency issued
under clause (1) of Article 352 thereof on the 26th October, 1962 is in force.
279 GSR 1276/27-8-1965 : In exercise of the
powers conferred by clause (1) of Article 359 of the Constitution, the
President hereby makes the following further amendment in Order No. GSR-1418
dated 30-10-1962 namely :
In the said orders for the word and figure
'Article 21' the words and figures 'Article 14, Article 21' shall be
substituted." Under Article 352 an emergency could be declared only when
the security of India or of any part of the territory thereof is threatened
whether by war or external aggression or internal disturbance, or when there is
an imminent danger thereof; and any order issued under Art. 359 must have some
correlation to the security of India, external aggression or internal
disturbance. But the impugned order, the argument proceeded, was so wide as to
deprive a foreigner of his fundamental rights though there was no connection
between such deprivation and the security of India etc. To state it
differently, the argument was that the scope of the order under Art. 359(1)
should be confined only to the scope of the reasons on the basis of which an
emergency could be declared. In the instant case, it was said that the said
order empowered the Executive to detain the petitioner to await investigation
in regard to smuggling of gold which could possibly have no relation to the
security of India.
We do not propose to express our opinion on
this important question, as we are not satisfied on the material placed before
us that the detention of the petitioner has no nexus to the emergency. The next
contention was that the President under Art. 359(1) could not make orders
suspending the right to move any court in respect of different categories of
persons for the enforcement of the same fundamental right.
To appreciate this contention, it may be
mentioned that apart from the order dated 30-10-1962 relating to foreigners
which we have already noticed the President passed an order dated 3-11-1962. It
was subsequently amended on 11-11-1962. The order as amended declares that the
right of any person to move any court for the enforcement of the rights
conferred by Arts.14,21 and 22 of the Constitution shall remain suspend for the
period during which the Proclamation of Emergency issued under clause (1) of
Art.352 thereof on the 26th October, 1962, is in force, if such person has been
deprived of any such rights under the Defence of India Ordinance, 1962 (4 of
1962) or any rule or order made there under. It will be seen that the order
dated 30-10-1962 was confined to foreigners and the order dated 3-11-1962 was
confined to persons who had been deprived of their rights under the Defence of
India Ordinance, 1962. Reliance was placed upon the terms of Art.
359 and a contention was raised that the said
Article did not countenance orders on different 280 groups of persons. It is
true that Article 359 does not speak of persons but only speaks of a right to
move any court and also to a period, or a part or whole of the territory. But
Article 359 empowers the President to make an order for the purpose mentioned
therein and as the singular includes plural he can certainly make different
orders. But the question is : can he make an order or orders in respect of
different groups of persons such as foreigners and persons governed by the
Defence of India Rules ? It is true that the scope of his order shall be
confined to whole or a part of the territory of India and during certain
periods. But there is nothing in the Article which prevents the President from
restricting the scope of the order to a class of persons, provided the
operation of the order is confined to an area and to a period. The impugned
orders apply to the entire country and the fact that only the persons who are affected
by that order could not move the Court for the enforcement of their right,
cannot make them any the less valid orders.
The learned counsel then contended that Art.
359(1) did not authorise the President to make an order meting out
discriminatory treatment to foreigners, and even if it did, not the order made
in the instant case violated Art. 14 of the Constitution as there was no nexus
between the classification of foreigners and citizens and the object for which
the said order was made.
Mr. Bindra, learned counsel contended that
Art. 359 conferred an absolute power on the President subject to the
limitations found there under to make an order declaring that the right to move
any court for the enforcement of one or more of the rights conferred by Part
III should remain suspended, and, therefore, any order made there under could
not be declared void on the ground that it infringed any of the fundamental
rights suspended by the said order. It was said that the contrary view would
amount to an argument In a circle.
There is a clear distinction between
deprivation of fundamental rights by force of a constitutional provision itself
and such deprivation by an order made by the President in exercise of a power
conferred on him under a constitutional provision. A comparison of the
provisions of Art. 358 and Art. 359 justifies this distinction. Under Article
358, by the force of that Article itself, Article 19 is put out of the way.
Article 359(1) does not operate by its own force. The President has to make an
order declaring that the: right to move a court in respect of a fundamental
right or rights, in Part III is suspended. He can only make an order which, is
a. valid one. An order making an unjustified discrimination in suspending the
right to move a court under Art. 14 itself, will be void at its inception.
It is a still born order. It cannot be said
that this involves an argument in a circle. This argument ignores the
distinction between the order and the effect of that order.
281 If the order does not violate Art. 14, it
can validity take away the right to move the court to enforce Art. 14. So
viewed, the order of the President must satisfy the requirements of Art. 14.
Mr. Bindra relied upon the decision of this Court in Sree Mohan, Chowdhury v.
The Chief Commission, Union Territory of Tripura (1) in support of his argument
that the order of the President was untrammelled by the provisions of Art. 14.
The passage relied upon reads :
"It was also contended that the
President's order of 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
Article 359(1) of the Constitution, the petitioner has lost his locus standi to
move this Court during the period of emergency as already pointed out. That
being so, the petition is not maintainable". This passage has nothing to
do with the validity of the order made under Art. 359(1). What this Court said
was that, as under the Ordinance the petitioner therein had no right to move
the Court to enforce his fundamental right, he had no locus standi to question
the validity of the Act, for, he could question the validity of the Act only if
he could move the Court in regard thereto.
We, therefore, hold that the validity of the
President's order issued under Art. 359(1) could be questioned if it infringed
the provisions of Art, 14 of the Constitution, The next question is whether it
infrigned Article 14. Mr Pillai put his arguments in two ways : (1) The
President has made two orders under Art. 359(1); (i) GSR 1418 dated 30-101962
in respect of foreigners; and (ii) GSR 164 dated 3-111962 in respect of all,
including foreigners. The terms of the order in regard to foreigners are
without any limitations. But the order dated 3-11-1962 only affects persons who
have been deprived of any of the fundamental rights referred to in the order
under the Defence of India Ordinance, 1962 or any rule or order made there under.,
These two orders permit the authorities concerned at their discretion to rely
upon the order which is more prejudicial or drastic in respect of same persons.
(2) The order of the President relating to foreigners is discriminatory as the
fact that a person is a foreigner has no nexus to the object sought to be
achieved, i.e., the security ,of the State.
(1)  3 S.C.R, 442, 451.
282 The formula underlying the doctrine of
classification has become so crystallised that it is unnecessary to refer to
decisions. The principle is stated thus : "The classification must be found
on intelligible differentia which distinguishes persons or things that are
grouped from those left out of the group and that the differentia must have
rational relation to the object sought to be achieved by the statute in
question." What was the object of the order GSR 1418 issued by the
President on 30-10-1962. There was a grave emergency. The Chinese attacked
India and Pakistan was poised for an attack. There was a danger of internal
sabotage. So, it was necessary to screen the foreigners, and to guard against
their acts of sabotage and espionage. It was, therefore, necessary to issue a
special order wider in scope than that of GSR 164 dated 3-11-1962 which was
confined only to persons that had been deprived of certain rights under the
Defence of India Ordinance. There was a greater danger from foreigners, and,
therefore, a more drastic order only could meet the requirements of national
,security. Compared to foreigners, nationals, with some unfortunate exceptions,
can be relied upon to support the country's integrity and security. There is,
therefore, a clear nexus between the classification of foreigners and the
citizens and the object sought to be achieved thereby.
Nor can we appreciate the argument that the
making of two orders, one confined to foreigners and the other confined to all
persons, including foreigners, violates Art. 14. Though GSR 164 may also
deprive foreigners, along with the citizens, of their right to move the Court
in respect of their rights deprived under a particular Act, the scope of the
said order (GSR 164) is not sufficient to guard against the subversive
activities of foreigners. It is confined only to rights deprived under the
Defence of India Ordinance. GSR 1418 has a greater sweep and it takes in other
rights. Though there is some overlapping, the two categories of persons
foreigners and citizens-offer different security and other problems. Both the
orders are mainly intended to operate in different fields and their scope is
different. We, therefore, do not see any merit in this contention also.
It is then argued that the President's order
GSR 1276 dated 27-8-1965 has no retrospective effect and, therefore, the
petitioner is entitled to move the court. GSR 1276 was issued on 27-8-1965
.amending the earlier order by including Art. 14 therein. After 27-8-1965,
therefore, no foreigner has the right to move the Court though his fundamental
right under Art. 14 of the Constitution is violated. In that sense, the order
is not retrospective but prospective. It only operates on the right of a person
to move the Court. As the petitioner in the present case filed his petition on
12th May, 1966, that is subsequent to the promulgation of the order, he has
ceased to have any right to move this 283 Court. The fact that he complained of
his detention for a period earlier to that date has no bearing on the question
of the maintainability of the petition. This contention has also no merits.
Lastly, it was contended that the order
detaining him was vitiated by mala fides. The argument of mala fides was put
thus : The petitioner was prosecuted and tried for an offence under the Sea Customs
Act. He was sentenced to 9 months imprisonment and to fine. He paid the fine
and served his sentence. He was arrested pending the criminal case. He was let
on bail on 18-3-1965, but before he left the jail he was detained under the Foreigners
Act. It was said that the detention was not for any purpose connected with the
security of the State, but only with a view to make investigation in respect of
a case of conspiracy of smuggling gold into India of which, it is alleged, the
petitioner was one of the conspirators. As there are other effective provisions
of the Code of Criminal Procedure to conduct the said investigation, the
argument proceeded, the detention of the petitioner in the said circumstances
was an abuse of powers under the Foreigners Act. It was further contended that
s. 3 of the Foreigners Act was intended for regulating the entry and the exit
of foreigners into and out of India, that it had nothing to do with the
investigation of cases, and that therefore, the detention under that Act for
the sole purpose of investigation was mala fide. The order of detention dated
18th September, 1964 reads: "In exercise of the powers conferred by
sub-section (1) read with clause (g) of sub-section (2) of section 3 of the
Foreigners Act, 1946 (31 of 1946) the Central Government hereby orders that
Shri Ghulam Mohuddin a Pakistani National shall be arrested and detained until
further orders." Clause (g) enables the Central Government to make an
order detaining a foreigner. The clause does not narrate the reasons for which
he can be detained. If, as the respondent says, the petitioner is involved in a
serious case of conspiracy to smuggle gold and on that account his detention in
India was necessary to make further investigation with regard to his conduct,
we do not see why the wide power conferred on the Central Government to detain
him under clause (g) could not be invoked. There is no merit in this contention
In the result, the petition is dismissed.
Bachawat, J. The order of Khanna, J.
dismissing the Writ petition filed by the petitioner in the Punjab High Court
challenging the legality of the detention order passed by the Central Government
under s. 3(2)(g) of the Foreigners Act, 1946 and asking for H the issue of a
writ of habeas corpus is not a judgment, and does not operate as res judicata.
That order does not operate as a bar to the application under Art. 32 of the
Constitution asking for the issue of a writ of habeas corpus on the same facts.
The petitioner 284 has fundamental right to move this Court under Art. 32 for
the issue of a writ of habeas corpus for the protection of his right of
liberty. The present petition must, therefore, be entertained and examined on
Order 35, Rule 3 of the Supreme Court Rules
provides that a petition for a writ of habeas corpus under Art. 32 shall state
whether the petitioner has moved the High Court concerned for similar relief
and if so, with what result.
This rule is a salutary safeguard against an
abusive use of a petition for the issue of a writ of habeas corpus under Art.
32. The previous dismissal of a petition for a writ of habeas corpus by a High
Court is one of the matters which this Court may take into consideration at the
preliminary hearing of the writ petition under Art. 32 in forming the opinion
whether a prima facie case for granting the petition is made out, and if on a
consideration of all the materials the Court comes to the conclusion that a
prima facie case is not made out, the Court may refuse to issue a rule nisi
under 0 . 35. r. 4.
The petitioner did not previously move this
Court for the issue of a writ of habeas corpus challenging the legality of the
order of detention under s. 3(2)(g) of the Foreigners Act. He has, therefore,
the right to move this Court for the issue of the writ. But he has not right to
move this Court under Art. 32 more than once on the same facts.
Having heard the petitioner fully on the
merits once, the Court will not hear him again on the same facts.
It is to be noticed that the present petition
does not challenge the validity of an order of, imprisonment passed in a
criminal trial. I must not be understood to say that the remedy of a writ of
habeas corpus is available to test the propriety or legality of the verdict of
a competent Criminal Court.
The petitioner challenges the legality of the
order, GSR 1418 dated October 30, 1962 in respect of foreigners passed by the
President under Art. 359(1) of the Constitution on the ground that it is
discriminatory and violative of Art.
14. The argument is this : Article 359(1)
does not operate of its own force. The President has to make an order under it
declaring that the right to move a Court in respect of a fundamental right in
Part III is suspended. The order of the President under Art. 359(1) is a law
within the meaning of Art. 13(2). An order under Art. 359(1) which takes away
or abridges a fundamental right is void under Art. 13 (2).
Therefore, the validity of an order under
Art. 359(1) may be questioned if it abridges or takes away a fundamental right
other than the right under Art. 19 which is already suspended under Art. 358.
On the other hand, the respondent's argument
is this An ,order of the President under Art. 359(1) suspending the right 285
to move this Court for the enforcement of any right conferred by Part III
necessarily abridges the right conferred by Art. 32. If the order of the
President under Art. 359(1) is a law within the meaning of Art. 13(2), the
President can never make a valid order under Art. 359(1).
This is reduction ad absurdum. It is
impossible to hold that the President can never make a valid order under Art.
359(1). The conclusion must be that an order
of the President under Art. 359(1) is not a law within the meaning of Art.
13(2). Again, an order of the President suspending the right to move any Court
for the enforcement of the right conferred by Art. 14 substantially abridges
the right conferred by Art. 14.If the remedy is totally suspended, the right is
temporarily a bridged. If the President's order under Art. 359(1) is a law
within the meaning of Art. 13(3)(a) the President can never make an order under
Art. 359(1) suspending the right to move any Court for the enforcement of the
right under Art. 14. This is an impossible conclusion, because by the very
terms of Art. 359(1), the President is given the right to pass an order
suspending the right to move any Court for the enforcement of the right conferred
by Art. 14. An order which by the express words of Art. 359(1) can abridge or
take away a right albeit temporarily cannot be held to be void on the ground
that it infringes that right. The context of Art. 359(1) requires that an order
of the President cannot be a law within the meaning of Art. 13(2).
I do not propose to decide in this petition
which of the two opposing contentions should be accepted. Even assuming for the
purpose of this case that the President's order under Art. 359(1) is a law within
the meaning of Art. 13(2) and can be pronounced to be invalid on the ground
that it abridges or takes away the right conferred by Art. 14, 1 am of the
opinion, for the reasons given by the learned Chief Justice, that the
President's order is not discriminatory and is not violative of Art. 14.
I agree with the conclusions of the learned
Chief Justice on other points and the order proposed by him.
V. P. S.