IN RE: Shri Sham Lal [1978] INSC 9 (18
January 1978)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
DESAI, D.A.
REDDY, O. CHINNAPPA (J)
CITATION: 1978 AIR 1484 1979 SCR (1) 159
ACT:
Contempt of Court-News item published in a
newspaper criticizing judgment of Supreme Court--Contempt proceedings- If could
be initiated.
Per Majority (Untwalia and Kailasam, JJ.)
HEADNOTE:
HELD : The notice issued to the Editor of the
Times of India calling upon 'him to show cause why proceedings under Art.
129 of the Constitution for contempt of the
Supreme Court should not be initiated against him in respect ,of the statements
made criticizing the judgment of this Court in A.
D. M. Jabalpur v. S. Shukla (A.I.R. 1976 SC
1207) should be dropped. It is not ;a fit case where formal proceedings for
contempt should be drawn up [582 A-B] Beg. C. J. (dissenting) There cannot be a
grosser or clearer case of contempt of court than the implications of this
document. [586 C] 1.The obvious suggestion and threat held out to Judges of the
Court is that they will be maligned and punished if they could not in future so
decide ,cases as to protect the interests or voice the opinions of whatever
political or other sort of group those who have signed the document mentioned
in the newspaper may represent. It implies nothing more nor less than blackmail
to demoralise upright judges. People who could indulge in it certainly do not
represent those who say that law, as found in the Constitution, must always be
declared by Judges fearlessly and honestly. [586 A-C] 2.It is a serious matter
if persons in the position of those whose names' are ,,given in the offending
news item containing a vituperative attack upon a particular judgment of this
Court are really signatories of the document. The attack is primarily
irrational and abusive, even if it is partially based on ignorance and 'the
rest on misconception.
[582 E-F] 3.It may be that some people go on
making assertions about judgments of this Court without reading or understanding
them. But, the way in which this 'has been going on, as a part of a consistent
scheme to malign the Court and its Judges, shows that their intention is to
deliberately shake the confidence of the public in this Court In any case, this
would be the result it nothing is done to check such a campaign of
vilification. [583 E-F] 4.To blame and abuse the Judges after shutting one's
eyes to what may be the shortcomings of his own case or the law, as it exists,
may be forgiven ;in a certain type of litigant blinded by personal feelings. But,
if those who ,purport to act pro bono public to protect the Constitution and
the law conduct themselves in this fashion and, if responsible daily newspapers
publish what could be regarded, in addition to being defamatory and abusive, as
gross contempt of this Court, such people should be reminded of what the law
says about it and what their duties are to the Court, to the public and to
individuals maligned. [586 C-D] 5.Even if the case could be one in which two
views were possible on any ,question, no newspaper could be allowed to describe
one of the two views as a misdeed' and suggesting that Judges should have held
what they could not honestly believe to be correct in law. It was stated that
the Judges who gave such decisions would be ostracised in other countries.
Those who drafted the document seemed to be aware of the perils of their
irresponsible language. They, therefore, took shelter behind some article in a
foreign newspaper presumably based on sources interested in distortion or no
better informed and with no better motives than those quoted in the news item.
[593 B-C] 582
ORIGINAL JURISDICTION V.M. Tarkunde, P. H.
Parekh, (Mrs.) Manju Sharma and Kailash Vasdev for the alleged contemner.
(Miss) A. Subhashini for the Sol. General.
S. K. Jain for the Intervener.
The following Orders of the Court were
delivered UNTWALIA & KAILASAM, JJ. Having considered every. pros and cons
of the matter in regard to the amended notice issued to the, editor of the
Times of India on the 11th January, 1978, to show cause why 'proceedings for
contempt of this Hon'ble Court under Article 129 of the Constitution should not
be initiated against you in respect of the statements made in the aforesaid
news item in respect of the habeas corpus case (A.D.M. Jabalpur v. S. Shukla)
and the judgments of this Court in that case', we are of the view that it is
not a fit case where a formal proceedings for contempt should be drawn up. We
accordingly drop the proceedings.
BEG, C.J. I am afraid I am unable to concur
with the majority view on the case before us which arises out of the
publication of a news item in the Times of India newspaper of 7 January, 1978,
on which a notice to show cause why proceedings for contempt of Court be not
initiated against the Editor of the news paper was issued. I think that it is a
serious matter if persons in the position of those, whose names are given in
the offending news item has having subscribed to a document containing a
vituperous attack upon a particular judgment of this Court reported in Additional
District Magistrate, Jabalpur v. S. Shukla(l), are really signatories of this
document. The attack is primarily irrational and abusive even if it is
partially based on ignorance and the rest on misconception. The view of this
Court in that case was that the effect of the Presidential Order under Article
359 of the Constitution considered there was to disable High Courts from
investigating questions relating to violation of the fundamental rights to
personal liberty, protected by Article 21, in proceedings under Article 226 of
the Constitution.
Article 21 of the Constitution reads as
follows "Article 21-No person shall be deprived of his life or personal
liberty except according to procedure established by law".
It is clear beyond the shadow of doubt that
what this Article protects is a right of every person in India, whether he is
an Indian citizen or not, to be dealt with in accordance with law whenever a
question of depriving him of his life or personal liberty by executive
authorities arises. The law on the view adopted in A. K. Gopalan v. The State
of Madras(2), which was not questioned by anybody before us on this (1) A.I.R.
1976 SC 1207.
(2) [1950] S.C.R. 88.
583 aspect, was statutory law or
"lex" and not "just" so far as preventive detention, the
very concept of which seems opposed to normal notions of "jus", is
concerned. If the enforcement of rights conferred by Article 21 was suspended,
investigation of alleged violations of the statutory protections is in abeyance
because the guarantee given by Article 21 is itself that of protection by
statutory provision only at least as regards preventive detention.
The majority view, that the right to obtain a
release on a writ of Habeas Corpus against Executive authorities was suspended,
meant no more than that the use of Articles 32 and 226 only was suspended by
the President against these authorities. No question arose at all in that case
of depriving anyone of life itself without complying with law.
On the other hand, the Attorney General
repeatedly said there that criminal and civil laws, in general, and their
protections were not suspended at all. Deprivation of life contrary to law was
punishable murder or homicide not amounting to murder just as it was before the
Presidential Order which made no difference here. Only the use of Article 32
and 226 to enforce specified fundamental rights against Executive authorities
was suspended by the order under Article 359. In fact, all the judges of this
Court held this. Nevertheless, certain interested persons, with motives which
could be presumed to be ulterior and unhealthy, have continued to misrepresent
to the public that what the majority of Judges of this Court held was that
rights to life and liberty themselves were suspended. No judge had held that.
Speaking for myself, I would be certainly shocked to hear that any judge or
Court had or could have, in the twentieth century, possibly held that.
All I can say to anyone who claims that any
Judge of this ,Court has so held is to ask him to show me anything which could
possibly have this meaning.
It may be that some people, go on making
assertions about judgments of this Court without reading or understanding them.
But, the way in which this has been going on, as a part of a consistent scheme
to malign the Court and its Judges, shows that their intention is to
deliberately shake the confidence of the public in this Court. In any, case,
this would be the result if nothing is done by anyone to check such a campaign
of vilification.
I will only reproduce here three paragraphs
from my very long judgment on the case to show what we had held and what the
Attorney General had conceded. I said there "Para 250 :Enforceability, as
an attribute of a legal right, and the power of the judicial organs of the State
to enforce the, right, are exclusively for the State, as the legal instrument
of Society, to confer or take away in the legally authorised manner. It follows
from these basic premises of our Constitutional jurisprudence that Courts
cannot, during a constitutionally enjoined period of suspension of the
enforceability of Fundamental Rights through Courts, enforce what may even be a
"fundamental right" sought to be protected by Part III of the
Constitution. The Attorney General 584 has, very fairly and rightly, repeatedly
pointed out that no substantive right, whether declared fundamental or not,
except the procedural rights converted into substantive ones by Article 32,
could be suspended. Even the enforcement in general, of all such rights is not
suspended. Only the enforcement of specified rights through Courts is suspended
for the time being.
Para 251 : The enforceability of a right by a
Constitutionally appointed judicial organ has necessarily to depend upon the
fulfillment of two conditions : firstly, its recognition by or under the
Constitution as a right; and, secondly possession of the power of its
enforcement by the judicial organs. Now, if a right is established on facts, as
a right, it will certainly satisfy the first condition.
But if the right is unenforceable, because
the power of its enforcement by Courts is constitutionally suspended or
inhibited, for the duration of the Emergency, its mere recognition or
declaration by Courts, either as a right or as a fundamental right, could not
possibly help a petitioner to secure his personal liberty. Article 226 of the
Constitution is not meant for futile and unenforceable declarations of right.
The whole purpose of a writ of Habeas Corpus is to enforce a right to personal
freedom after the declaration of a detention as illegal when it is so found
upon investigation.
Para 254 : In this country, the procedure for
deprivation as well as enforcement of a right to personal freedom is governed
partly by the Constitution and partly by ordinary statutes.
Roth fall within the purview of 'procedure'.
Article 21 of the Constitution guarantees,
though the guarantee is negatively framed, that 'No person shall be deprived of
his life or personal liberty except according to procedure established by law'.
If an enforcement of this negatively framed right is suspended, a deprivation
contrary to the prescribed procedure is not legalised. The suspension of
enforcement does not either authorise or direct any authority to violate the
procedure. It has to be clearly understood that what is suspended is really the
procedure for the enforcement of a right which could be said to flow from the
infringment of a statutory procedure. If the enforcement of a right to be free,
resulting derivatively-from both the Constitutional and statutory provisions,
based on an infraction of the procedure, which is statutory in cases of
preventive detention, is suspended, it seems to me to be impossible to lay down
that it becomes enforceable when that part of the procedure which is mandatory
is violated but remains unenforceable so long as the part of the procedure
infringed is directory. Such a view would, in my opinion, introduce a
distinction which is neither warranted by the language of Article 359 of the
Constitution nor by that of the Presidential Orders of 1975. If the claim 585
to assert the right is one based on violation of procedure, the degree of
violation may affect the question whether the right to be free is established
at all, but it should not, logically speaking, affect the result where the
enforcement of the right, even in a case in which it has become apparent, is
suspended".
It has been made, absolutely clear in the
passages cited above that no fundamental right itself was suspended by a
Presidential Order under Article 359. What was held to have been suspended was
the power of the Court itself to enforce the widely conferred right of personal
liberty under Article 21 by resorting to Articles 3.2 and 226 against Executive
authorities. On this aspect of the case-that the power of the Court to enforce
fundamental constitutional rights was suspended-Khanna, J., stated as one of
the conclusions of his judgment "A Presidential Order under Article 359(1)
can suspend during the period of emergency only the right to move any Court for
enforcement of the fundamental rights mentioned in the Order." This could
only mean that the power of the Court to enforce specified fundamental rights
was suspended. In the course of the judgment, Khanna J., expressed the view
(para 15) :
"The effect of the suspension of the
right to move any court for the enforcement of the right conferred by Article
21, in my opinion, is that when a petition is filed in a Court, the Court would
have to proceed upon the basis that no reliance can be placed upon that article
for obtaining relief from the court during the period of emergency."
Therefore, it could be said that this statement of the position by Khanna J.
himself was, roughly speaking, an expression of a unanimously held view of all
the Judges.
Indeed, in the passages, Quoted already from
my judgment, the effect is shown to be less drastic for the citizen than it is
given in the last quoted passage. I have repeatedly pointed out in my judgment
that it is not so much the right of the citizen'to move the court as the power
of the court to enforce fundamental rights which is, in substance, temporarily
suspended.
Neither the validity of the Presidential
Order nor of the Constitutional amendment, by which this Court's very
jurisdiction to entertain the question of validity of the Presidential Order
"on any ground" was declared to be non- existent, was questioned by
any counsel before this Court either for conflict with the basic structure of
the Constitution or for mala fides of any sort (legal or factual). Yet, without
questioning the validity of the Presidential Order or even the Constitutional
amendment barring judicial scrutiny of grounds of its validity, this Court was
expected, to judge from the tenor of the attacks made upon the judgment of this
Court, without indicating where the Court's reasoning went wrong, to hold that
the emergency itself was unconstitutional.
586 Even Mr. Justice Khanna did not hold that
because no materials were placed and no grounds urged before the Court to
enable it to hold that the declaration of Emergency was itself invalid. The
obvious suggestion and threat held out to Judges of the Court is that they will
be maligned and punished if they could not in future so. decide cases as to
protect the interests or voice the opinions of whatever political or other sort
of group those who have signed the document mentioned in the newspaper may
represent. No more insidious a danger to judicial independence could exist. It
implies nothing more nor less than blackmail to demoralise upright Judges.
People who could indulge in it certainly do not represent those who. say that
law, as found in the Constitution,must be always declared by Judges fearlessly
and honestly. I cannot conceive of a grosser or clearer case of contempt of
Court than the implications of this document, if we were to think about them,
would constitute.
To blame and abuse the Judge after shutting
one's eyes to what may be the shortcomings of his own case or the law, as it
exists, may be even forgiven in a certain type of litigant blinded by personal
feelings. But, if those. who purport to act pro bono public to protect the
Constitution and the law conduct themselves in this fashion, and, if
responsible daily newspapers publish what could be regarded, in addition to
being defamatory and abusive, as gross contempts of this Court, one wonders
whether time has not come to remind such people of what the law says about it
and what their duties axe to the Court, to the public, and to, the individuals
maligned.
Although there was no difference of opinion
at all between the Judges of this Court in Shukla's case that the Presidential
Order under Article 359 of the Constitution did suspend enforcement of
fundamental rights including the right to personal liberty-a right which had
been given a very comprehensive meaning and scope by a series of decisions of
this Court from Gopalan's case through Satwant Singh's(l) and Kharak Singh's
(2) cases upto Golak Nath's cases-yet, there was a difference of opinion
between the majority opinions of Judges of this Court and the view of Khanna J.
on the question whether any statutory rights remained, apart from the
fundamental right to personal liberty, which could still be enforced during the
emergency, and, if so, how. Mr. Justice Khanna said that there were such "statutory"
rights which could be enforced. But, the majority of Judges of this Court could
not see how even a distinction between the fundamental rights topersonal
liberty and a statutory right to, personal liberty could possibly help a detenu
in preventive detention when the fundamental right topersonal liberty protected
by Article 21 itself guaranteed protection by "law" and this
"law " according to Gopalan's case was lex or only statutory law
where ` preventive detention was involved as it was in the Habeas Corpus
cases-. If the enforcement of that protection of personal Liberty by statutori
law was specifically suspended by the Presidential Order how did any right of
enforcement of the statutory protection to personal freedom still remain active
? To say that it did (1) [1967] (3) S.C.R. 525.
(2) [1964] (1) S.C.R. 332.
587 seem an obvious contradiction to the
majority. Moreover, the distinction made by Khanna J. lost all its importance
when the majority confined the suspension of enforcement only to what could be
I done under Articles 226 and 32 of the Constitution. As is clear from the
passages cited above from my judgment in Shukla's case, the Attorney General
had conceded that the statutory protections surrounding life and liberty,
outside Articles 226 and 32 of the Constitution, were not suspended at all and
could be enforced. This meant that everyone, whether an officer or a dignitary
of State, such as a Minister, could be prosecuted for murder or for illegal and
malicious confinement of anybody just like any ordinary alleged offender. The
kind of evidence which could not be given in proceedings under either Article
32 or Article 226 could be put forth in other types of legal proceedings.
One wonders whether it is an exhibition of
dishonesty or of real inability to understand what this Court had clearly and
actually held when some people go on suggesting that this Court could and did
that the Executive authorities could do whatever they might like to do to
destroy life and liberty but Courts will give no relief or redress, due to the
Emergency, even if cases failing outside the area of "preventive
detention", where release through writs of Habeas Corpus was suspended,
were brought before them. In any case, such assertions are gross distortions of
what this Court actually held in Shukla's case (supra).
In Shukla's case (supra), I pointed out that,
although, for reasons which were outside the purview of judicial scrutiny,
Courts had been deprived of the power to test preventive detentions by applying
norms of-"judicial justice", yet, the duties of the Executive were
not diminished but were enhanced on that account so that the Executive must see
that the detenu gets justice at its hands. I said there(1) (at p. 1315) :
"It appears to me that it does not follow
from a removal of the normal judicial superintendence, even over questions of
vires, of detention orders, which may require going into facts behind the
returns, that there is no Rule of Law during the emergency or that the
principles of ultra vires are not to be applied at all by any authority except
when, on the face of the return itself, it is demonstrated in a Court of Law
that the detention does not even purport to be in exercise of the executive
power or authority or is patently outside the law authorising detention. It
seems to me that the intention behind emergency provisions and of the Act is
that, although such executive action as is not susceptible to judicial
appraisement, should not be subjected to it, yet, it should be honestly
supervised and controlled by the hierarchy of executive authorities themselves.
It enhances the powers and, therefore, the
responsibilities of the Executive." It is surprising that even passages
indicating that, although, judges expressing the majority view in Shukla's case
(supra) did not like (1) A.I.R. 1976 S.C. 1315.
12-1146 SCI/77 588 measures of preventive
detention without trial even during an Emergency, yet, they were bound by the
Constitution and the, law to perform the unpleasant duty to declare what the
law was and not to run away from it, are cited sometimes to indicate that
judges, for Some reason, are partial to repressive laws. In fact, I quoted a
long passage from Erskine May's History of England to show the plight of
persons detained on suspicion. The suggested inference was that such powers,
unless duly supervised, are bound to be misused. It was impossible for the
Court to do anything more than to warn the Executive of the dangers of
arrogating unto itself so great a share of power over the person of the
individual citizen.
It is true that this Court held that
preventive detention was practically removed from judicial supervision during
an Emergency. The common statement of a conclusion at the end of the judgments
in the Habeas Corpus cases, based on the majority view but signed by all the
Judges, including Khanna J., was perhaps misleading as it gave the impression
that no petition at all would he under either Article 226 or 32 to assert the
right of personal liberty because the locus standi of the citizen was
suspended. Had a review petition been filed before us I would have certainly
made it clear that the Statement of a conclusion reached by the majority did
not accurately set out atleast my conclusion which is found at the end of my
judgment. It seems to me that the majority conclusion is rather loosely and
vaguely expressed at the end of our judgments. A legitimate criticism could,
therefore, be that this Court should draft and state its majority conclusions
better. However, a reading of all the judgments would have revealed that what
was really meant by stating the conclusion as it was done was nothing more than
that the power of Courts under article 226 to afford relief was suspended but
the power to entertain petitions was not suspended. The term 'locus standi,
with regard to what was suspended, was used because of a similar use of it in
previous judgments of this Court. Speaking for myself, I made it quite clear
that I did not understand those judgments as laying down anything more than
that the power of the Court to afford relief was suspended so that hearings of
cases could be resumed after the suspension was lifted.
And, the practice followed by this Court,
during the Emergency, was also to suspend proceedings or to keep them in cold
storage, so as to revive them later, but not to dismiss them outright for want
of 'locus standi' of petitioners.
Some people have said that an exception
should have been made in cases of mala fide detentions falling outside the
statutory and emergency provisions. I may quote here the exact words used by me
with regard to allegations of 'malice in fact' which, even apart from emergency
provisions, are not generally triable in summary inquiries into causes of
detention upon Habeas Corpus petitions but left to suits or other proceedings
for false imprisonment. I held that this right was intact even during the
emergency. I said there :
"As regards the issue of 'malice in
fact, as I have already pointed out, it cannot be tried at all in a Habeas
Corpus proceeding although it may be possible to try it in a regular 5 89 suit
the object of which is not to enforce a right to personal freedom but only to
obtain damages for a wrong done which is not protected by the terms of Section
16 of the Act. The possibility of such a suit should be another deterrent
against dishonest use of these powers of detaining officers." Some people
mention the English decision of the House of Lords in Liversidge v. Anderson(1)
to support the view that an issue of "malice in fact" should have
been left open by the Supreme Court for decisions by the Courts. This assumes
that the majority in Shukla's case did not leave that course open for suits for
damages for false imprisonment just as was the position in Liversidge's case
where, although, there was nothing equivalent to Section 16A(9) of the Act,
which could prevent English Courts from going into the grounds, yet, the House
of Lords held, practically as a matter of public policy, that the mere belief
or satisfaction of the Secretary of State was enough and could not be
challenged and he could not be asked to give particulars for his belief. In
fact, the British Courts have gone much further than we did. The view of the
best legal circles in England was, I have heard, that the majority view in
Shukla's case is absolutely correct because it accords with principles on which
law relating to ,emergencies in even the most democratic countries is based.
According to those principles the Constitution says to the Judicature on
matters covered by Emergency Provisions : "Hands off The executive knows
more and understands better what is to be done here. You are not judges of
these matters." That is evident also from what our ,Constitution says. The
judges cannot be held responsible for what the Constitution contains. That is
the responsibility of those who made it.
Others have the power to change it. The
judges can only declare what the Constitution contains and What its meaning and
effects are. Beyond that come the function of the lawmakers who can set right
the law if it ,is defective or wanting in any respect.
The constitutional position regarding
Emergency provisions and the principle underlying them were well stated by
Khanna J. in Shukla's case (supra) as follows (para 201) :
"No one can deny the power of the State
to assume vast powers of detention in the interest of the security of the
State. It may indeed be necessary to do so to meet the peril facing the nation.
The considerations of security of the State must have a primacy and be kept in
the forefront compared to which the interests of the individuals can only take
a secondary place. The motto has to be "who lives, if the country
dies". Extraordinary powers are always assumed by the government in all
countries in times of emergency because of the extraordinary nature of the
emergency.
The exercise of the power of detention, it is
well settled, depends upon the subjective satisfaction of the detaining
authority and the courts can neither act as courts of appeal over the decisions
of the detaining authority nor can they substitute their own opinion for that
of the authority regarding the necessity of detention." (1) [1942] A.C.
204.
590 Even in times when there was no
declaration of Emergency and no amendments had been made in the law so as to
deprive courts of power to look into the grounds of detention, claims for
relief on grounds of either "malice in fact" or "malice in
law" could be judged only by looking at the grounds of detention in
proceedings under either Article 32 or 226. But, as the majority of Judges in
Shukla's case pointed out, Section 16A, sub-section (9) was added during the
emergency so that its validity could not be questioned for violation of
fundamental rights because Article 358 of the Constitution, which is absolutely
clear on the point, made such a course impossible. Section 16A(9), therefore,
also deprived Courts of powers to find out how detention was for a collateral
purpose or suffered from even what is called "malice in law". Hence,
there was no alternative before the Court except to say that, due to
insurmountable obstacles placed by constitutional provisions and statutory law
made during the emergency declared and protected by constitutional provisions,
a High Court could not investigate the legality of a detention under Article 226
or 32 of the Constitution in such a way as to enforce a fundamental right
against an executive authority empowered to pass and actually passing a prima
facie valid detention order. But, that did not bar other legal proceedings mentioned
by me specifically in Shukla's case (supra) which were still open to persons
aggrieved even by prima facie valid detention orders, although what could be
done under Article 32 or 226 in normal times could, not be achieved by other
proceedings.
Indeed, I pointed out in Shukla's case
(supra) that, although High Courts were disabled by section 16A(9) of the
Maintenance of Internal Security Act, which was added during the emergency,
from calling for and examining grounds of detention, yet, if, upon the face of
an order of detention, it appeared that it was defective for some reason, or,
on the return filed in reply to a petition, it appeared that there could be or
was no detention order, such as the one required by Statute, a writ of Habeas
Corpus could be issued to release the detenu as if he was in private detention
and not in "purported" detention of an executive authority,-even
"Purported" orders were protected by statute. I indicated how the
writ of Habeas Corpus lies not only against executive authorities but also against
private individuals. Hence if a detention was, on the face of the detention
order, without a further investigation which could not, obviously, take place
without grounds, utterly illegal detention, ordered by an officer with no
authority to order it, would be on par with a detention by a private individual
against whom a writ of Habeas Corpus would go. In fact, this was the only way
in which what- Mr. Justice Khanna seemed to have had in view when he spoke of
statutory rights against actions outside the Act and the emergency provisions
could be enforced despite the Presidential Orders of 1975 and statutory
amendments. The suspension operated only against purported action of executive
authorities. The fundamental rights were also guaranteed against acts of
authorities which were parts of the State". Those laws which recognise and
protect the rights of the individual to be free from illegal confinement, from
assault, and from murder, could, on the very concessions made by the Attorney
General, be invoked by the aggrieved citizen even during the period of emergency
against private persons. Such rights are not given against executive
authorities, as such, but against an wrongdoers, whoever they may be, operating
outside the protected area. Therefore, whenever it was evident, on the face of
the "return' to a notice by the Court, that a detaining officer was acting
outside the protected field, release could be ordered. This is what I
specifically held.
And, there seemed nothing in the view-
expressed by other learned Judges contrary to what I said on this aspect.
With regard to the power of High Courts to
issue writs of Habeas Corpus even in-cases of alleged preventive detention by
officers of State I specifically said there (at p. 1311) :
"Detentions which not only do not but
could not possibly have any apparent, ostensible, or purported executive
authority of the State whatsoever to back them, could be equated with those by
private persons. The suspension of enforcement of specified fundamental rights operates
only to protect infringements of rights by the State and its authorised agents,
acting or purporting to act in official capacities which they could and do
hold. A claim to an order of release from such a patently illegal detention,
which is not by the State or on its behalf, could be enforced even during the
current Emergency. But, there is no such case before us." With regard to
one of the cases cited before us, State of Madhya Pradesh v. Thakur Bharat
Singh(1), it was pointed out that Shah J., had upheld the view that, although,
the validity of a provision empowering preventive detention enacted during the
emergency could not be challenged due to Article 358, yet, if it was made
before the declaration of emergency, it could be so challenged and declared
void.
Commenting on this case, the majority view,
expressed by me, was (at p. 1312) :
"I do not think that there is any such
case, before us. It seems to me to be possible to distinguish the case on the
ground that it was a case of patent voidness of the order passed so that the
principle of-legality, which is not suspended, could be affirmed even apart
from enforcement of a specified fundamental right, I think it was placed on
such a footing by Shah J., speaking for this Court." Similarly, all previous
cases of this Court were distinguished by references to the differently framed
Presidential Orders and statutory provisions which were applicable to, their
facts, but, the changed wording of the emergency orders of 1975 and amendments
of the Maintenance of Internal Security Act intended to oust the power of
Courts to Courts quite powerless to act under Article 226.
Hence, there was no use in saying that nine
High Courts had taken some other view. The various High Courts had, upto the
stage when cases were brought up (1) [1967] (2) S.C.R. 454.
592 here, merely repeated what this Court had
held in other circumstances with reference to other laws. Most of them had not
decided the question of validity of section 16A(9) of the Act by the time the
cases: came up before this Court at an intermediate stage.
If the minority view of Khanna J. had
prevailed, some more time would have been spent in the High Courts up-on
further enquiries which could not proceed far for want of grounds of detention,
but, the writ petitions would have been ultimately dismissed in an those cases
where there were prima facie valid detention orders as there seemed to be in
all cases which came up before this Court. And, in those cases where there were
no such prima facie valid detention orders, the detenus, could be released even
upon the reasoning of the majority if the view, as explained above, and, in
greater detail in my judgment on Shukla's case contained the true ratio of the
majority decision.
The enquiries made by the High Courts could
not be more than very superficial if grounds of detention could not be sent for
and persued by them because section 16A(9) introduced by Act No. XIV of 1976
was valid. Most of the High Courts had not ruled upon the validity of this
provision. One of the grounds on which this Court had entertained the appeals
by the State authorities at an intermediate stage was that, in view of Section
16A(9) of the Act, further enquiry may not be called for in the High Courts. if
the provision was valid. Khanna J., thought that the question of validity of
this provision should be decided by this Court only after an the High Courts
had determined it. The majority acted on the assumption that, after
entertaining the appeals and hearing very full and long arguments on it, there
was a duty cast on this Court to give a decision on this matter also.
Speaking for myself, I do not think that any
other conclusion except the one which the majority really reached in those
cases before sending them back to the High Courts for disposal according to
law, was legally or constitutionally possible on the materials placed and
arguments advanced before us. This was that the enforcement of the right to
personal liberty, by the issue of writs of Habeas Corpus, against prima facie
valid detention orders of executive authorities of the State, was suspended
during the emergency. Facts of each case were not before this Court as no facts
could be placed before it at that state. And, grounds of detention-the main
legal weapon of attack upon detention orders--could not be there at all at any
stage before the High Court’s due to Section 16A(9) of the Act. On the last
mentioned question, four Judges of this Court decided that the Constitutional
validity of the provisions could not be challenged during the emergency whereas
one learned Judge (Khanna J.) held that all the High Courts should first decide
that matter themselves so that it could come up before us again at a later
appellate stage.
Postponing decision of this Court on this
question after hearing such full arguments was neither necessary nor helpful to
detenus. The majority acted on the assumption that to postpone decision on what
was so clearly covered by Article 358 could only prolong the agony of those who
wanted justice according to law. And, if this question was decided against the
detenus and "enforcement" of the fundamental right to personal
freedom as protected by 5 93 statutory provisions, was suspended what was there
before the Courts to enforce under article 226 and how was it to be done ? nose
who live in the world of law as it exists and not in one of romantic dreams
could only give the answers which the majority of judges gave in Shukla's case
(supra).
Even if Shukla's case (supra) could be one in
which two views were possible on any question, I do not think that any
newspaper could be allowed to describe one of the two views in the way in which
signatories of the document cited in the news item have chosen to do it by
calling it a "misdeed" and suggesting that Judges should have held
what they could not honestly believe to be correct in law. The signatories are
also reported to have said that Judges who gave such deci- sions would be
'obstracised' in other countries. Those who drafted the document seemed to be
aware of the perils of their irresponsible language. They, therefore, took
shelter behind some article in a foreign newspaper presumably based on sources
interested in distortion or no better informed and with no better motives than
those of the signatories of the document quoted in the news item before us.
However, as two of my learned brethren are of the view that we should ignore
even such news items and not proceed further, I can do no more than to state
the reasons for my dissent before signing a common order dropping these
proceedings.
ORDER In view of the majority opinion, the
proceedings for contempt against the editor of the Times of India are dropped.
P.B.R. Proceedings dropped.
Back
