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PETITIONER: ADDITIONAL DISTRICT MAGISTRATE, JABALPUR

       Vs.

RESPONDENT: S. S. SHUKLA ETC. ETC.

DATE OF JUDGMENT28/04/1976

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) KHANNA, HANS RAJ BEG, M. HAMEEDULLAH CHANDRACHUD, Y.V. BHAGWATI, P.N.

CITATION:  1976 AIR 1207            1976 SCR  172  1976 SCC  (2) 521  CITATOR INFO :  R          1977 SC1027  (12)  RF         1977 SC1361  (137)  R          1977 SC1496  (24)  RF         1978 SC 290  (3)  RF         1978 SC 489  (1,10,11,12,15,16,17,18,24,25,  RF         1978 SC 597  (5,11,15,19,21,196)  E          1978 SC 727  (55,57)  R          1978 SC 803  (14)  RF         1982 SC 710  (35)

ACT:      Locus standi  to  move  habeas  corpus  petition  under Article 226  of the  constitution  of  India-effect  of  the Presidential order dared June 27 1975- Constitution of India Articles 19  21 25,  226 and 359(1A).) read with Maintenance Of Internal  Security Act  (Act 26 of 1971),1971, section 3- Remedy way  of writ petition to challenge the legality of an order of  detention under  the Maintenance      of  Internal Security Act is not open to a detenu during the emergency.      Maintenance of  Internal Security Act (Act 26 of 1971), 1971  Section   16A(9)   is   a   rule   of   evidence   and constitutionally valid-Not  open to  challenge oh the ground of any  violation of Part III of the Constitution fn view of the provisions of article 359(1A).      Maintenance of  Internal Security Act (Act 26 of 1971), 1971-Section 18  applies to  all orders of detention a valid piece of  legislation and  docs not  suffer from the vice of excessive delegation  Not open to challenge on the ground of the theory of basic structure re.      Constitution of India-Article 21 is the sole repository of rights to life and liberty.      Constitution of  India Articles 358 and 359-Distinction between.      Constitution of  India Articles  20  and  21-Difference between.      Disclosure to  court section  16A(9) of the Maintenance of Internal  Security Act  (Act  26  of  1971)  1971  is  an exception  and   constitutes   an   encroachment.   on   the constitutional jurisdiction   of the High Court.      Eclipse theory  of-Applicability to  the enforcement of Fundamental Rights under Art. 359(1).

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    Good return  theory of-Not  applicable to the practiced of Indian courts.      Obiter  dictum-When   a  decision]  becomes  an  obiter dictum.      Constitution of  India article  256-Non-compliance with Article 256  by the  State-Grievance at  the instance  of  a private party not entertainable by courts.      Rule Of  Law-Constitution itself is the rule of law and the mandate.      Judicial  review-scope   of  during   the   period   of emergency.      Constitution of India Article 12-whether State Includes judiciary.      Constitution of India 372-Law in force whether includes laws included fn Part 111 of the Con Construction of Article 372.      Maintenance of  Internal Security  Act (Act 26 of 1971) 1971 Section  16 Leaves  open a  remedy by way of a suit for damages for wrongful confinement scope of Section. 16 173      Basic structure  theory-Constitution of  India  Article 368-Emergency provisions  themselves are  to be  regarded as the basic structure of the Constitution.      objects of  the Maintenance  of Internal  Security  Act (Act 26  of 1971), 1971 and the Amending Acts 31 of 1975 and 14 of 1976 thereto      Presidential order  under Art  359(1) and  Martial  Law under Articles  23 and  73 of  the  Constitution-Distinction Constitution of  India Art.  359(1) 359(1A)  53 and  73 read with Art. 355 scope of.      Constitution of  India Article 226-extent of the powers of inquiry  by the  High Courts  in a  petition for  writ of habeas corpus  when once a prima facie valid detention order is shown to exist.      Rule of  law Concept  of is  inapplicable to  emergency provisions since the emergency provisions themselves contain the  rule of law for such situations.      Separation of powers-Principles of-Preventive detention being placed exclusively within the control of the Executive authorities  of  the  State  for  the  duration  ,.  Of  the emergency does  not violate  any principle  of separation of powers. ’      Basic structure  theory is  nothing more than a mode of construction of documents of the Constitution.      Jurisdiction of  courts under  Articles  136  and  226- Nature of.      Constitution of  India  Articles  34  and  359,  effect Whether powers  of the courts to issue writ of habeas corpus during the period of Martial Law are taken away,.      Rule of  construction-decision of the Supreme Court and the other  high judicial  authorities-constitution of  India Article 141 explained.      Rights under  s.  8  of  the  Maintenance  of  Internal Security Act  (Act 26  of 1971),  1971-Nature  of  vis-a-vis rights under  Constitution  of  India  Article  22(5)-Rights under Article  22(5) do  not bar  the enforcement  of  right under      Reflection theory  of is  not applicable to 5. 8 of the Maintenance of Internal Security Act (Act 26 of 1971), 1971.      Practice-Place of  dissent in the court of last resort- desirability of unanimity among judges Constitution of India Article 141.      Fundamental  Rights-object  of  guaranteed  Fundamental Right.      Natural justice  Rules of law being on the same footing

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as Fundamental Rights do not override the express terms of a statute.      Maxims:           (1)  Expression    Facit     cessare     tacitum"-                Applicability to Art. 21 of the Constitution.           (ii) Ut res magis valeat quam pereat .           (iii)Salus populi est supreme le.      Words and phrases:           (a)  Purported to  be made under s. 3" in s. 18 of                the Maintenance of Internal Security Act (Act                26 of 1971), 1971.           (b)  For any  other purpose  in Art.  226  of  the                Constitution-meaning of.           (c)  Conferred by Part  III of the Constitution in                Art. 359(1)-Intent

HEADNOTE: 174      In exercise  of the  powers conferred  by Clause (1) of Art. 352  of the  Constitution The  President of  India,  by proclamation dated  December 23,  1971 declared that a grave emergency exists whereby the security of India is threatened by external  aggression  and  the  Maintenance  of  Internal Security Act  (Act 26 of 1971), 1971 was published on July 2 1971, for effectively dealing with the emergency.      On November  16,  1974,  the  President  of  India,  in exercise of  the powers  conferred by Clause (1) of Art. 359 of the Constitution declared: (a) that the right to move any court with respect to orders of detention which have already been made or which may hereafter be made under s. 3(1)(c) of the Maintenance  of Internal  Security Act, 1971 (as amended by ordinance  ll of  1974) for the enforcement of the rights conferred by  Articles 14,  21 and  Clauses (4) (5), (6) and (7)  of   Article  22  of  the  Constitution;  and  (b)  All proceedings pending in any court   or the enforcement of any of the  aforesaid rights  with  respect  to  all  orders  of detention made  under the  said section 3(1)(c) shall remain suspended for  a period of six months from the date of issue of the order. Or the period during which the proclamation of emergency issued  under  Clause  ll)  of  Art.  352  of  the Constitution of  India on  December 3,  1971, is  in  force, whichever period  expires earlier.  the order stood extended to the whole of the territory of India.      On June  20, 1975,  the President of India, amended the above order  by substituting   12  months for ’6  months’ in the order.      On June  25, 1975,  the President,  in exercise  of his powers conferred  by  Clause  (2)  of  Article  352  of  the Constitution  declared   that  a  grave  emergency    exists whereby the  security of  India is  threatened  by  internal disturbances.      On June  27, 1975,  in exercise  of powers conferred by Clause (1) of Art. 359 the President declared that the right of any  person (including a foreigner) to move any court for the enforcement  of the  rights conferred  by Articles 14 21 and 22  of the  Constitution and  all proceedings pending in any court  for the enforcement of the above mentioned rights shall remain  suspended for  the  period  during  which  the proclamation of  emergency made under Clause (1) of Act. 352 of the  Constitution on  December 3,  1971, and  on June 25, 1975, are  both in.    force. The Presidential order of June 27, 1975,  further stated that the same shall be in addition to and  not in  derogation of any order made before the date

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of the  aforesaid order  under Clause (1) of Art. 359 of the Constitution. on  June 29,  l 975,  by  another  order,  the President made the ordinance of June 27, 1975, applicable to the State  of Jammu  and Kashmir  as well.  On September 25, 1975, the  last paragraph  in the  Presidential order  dated June 27  1975, was  omitted. The  President promulgated  the amending ordinances No. i and 7 of 1975, and replaced by the Maintenance of  Internal Security  (Amending Act) (No. 39 of 1975) Act  introducing a  new section  16A, and   . giving a deemed effect  to s.  7 of the Act as on from June 25, 1975, while the rest having a deemed effect from June 29, 1975. By the same  Act a new section 18 was also inserted with effect from June 25, 1975.      By  the  Constitution  (Thirty-eighth  Amendment)  Act, 1975, Articles  123, 213, 239(b), 352, 356, 359 and 368 were amended. Clauses  (4) and  (5) were added in Art. 352 of the Constitution.  Broadly   stated,   the   Thirty-eighth   Con Constitution (Amendment) Act renders the satisfaction of the President or the Governor in the relevant Articles final and conclusive and  to be  beyond any . question in any court on any ground.      The power  conferred on the President by Art. 352 shall include the  power.  to  issue  different  proclamations  on different grounds  being war  or external   aggression    or internal disturbance  or imminent  danger of war or external aggression or internal disturbance whether or not there is a proclamation  already   issued  by   the   President      By Constitution Thirty-Eight  Amendment Act  l ’1975 new Clause (1A) was also added after Clause (1) of Article 359.      The  Constitution   Thirty-ninth  Amendment   Act   was published on  August 10  1975, amending Articles 71, 329 and 329(A) and  added Entries after Entry 86 in the 9th Schedule and the  Maintenance of  Internal Security  Act (Act  26  of 1971)  1971 as item 92 in the said Schedule. 175      On October 17, 1975, on ordinance 16 of 1975 was issued making further  amendments ill  s. 16A of the maintenance of internal Security  Act introducing sub-Clause (8) and (9) to s. 16A.  On November  16, 1975  ordinance 22  of 1975    was issued making  certain  amendments  in  the  Maintenance  of Internal security  Act inserting  also sub-section 2A ill s. 16A. All  the amendments  made by  the (ordinance were given retrospective effect  for the purpose of validating all Acts done previously.  ’The said ordinances were published as the Maintenance of  Internal Security  (Amendment) Act 1976 (Act 14 of 1976) on- Janurary ’’5, 1976.      The respondents  detained under  s. 3(IA)(ii) read with s. 3(2)  of the maintenance-   of Internal Security Act (Act 26 of  1971 j  as amended  by the  Maintenance  of  Internal Security Act  (Amendment Act 39 of 1975), 1975 challenged in several High  Courts, the  vires of  the ordinance issued on June 27, 1975, by the President of India as unconstitutional and inoperative  in law and prayed for (a) the setting aside of the  said order  and  (b)  for  directing  their  release forthwith. In  come cases,  they challenged  the validity of the Thirty-eight  and I  thirty-ninth constitution Amendment Acts.      When these petitions came up for hearing, the appellant raised the  preliminary  objection to the maintainability on the ground that in asking For l release by the issuance of a writ of  habeas Corpus.  the respondents were, in substance, claiming that  they have  been deprived  of  their  personal liberty in  violation of  the procedure  established by law, which plea  was available  to them  under. Art.  21  of  the Constitution only  and in  view of  the  Presidential  order

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dated June  27  1975,  suspending  the  right  to  move  for enforcement of  the right  conferred by  that  article,  the petitions were liable to be dismissed at the threshold.      While the  High Courts  of Andhra  Pradesh, Kerala  and Madras  have   upheld  The   preliminary   objection,   this contention      did not find favour with the  High Courts of Allahabad, Bombay  (Nagpur Bench),  Delhi Karnataka,  Madhya Pradesh, Punjab  and Haryana  respectively.  ’I  these  High (courts  broadly   took  the   view  that  (a)  despite  the Presidential order  it is  open to  the detenus to challenge their detention  on   the ground  that it is ultra vires, as for example,  by showing that the order, on  the face of it, IS passed  by an authority not empowered of pass it or it is not in  exercise of  the power delegated to the authority or that  the   power  has  been  exercised  in  breach  of  the conditions prescribed  in that behalf by the Act under which the order  is passed,  or that  he order  is not  in  strict conformity with  the    provisions of the Act. Some of these High Court have further held that the detenus can attack the order of  detention on  the ground  that it is mala fide, as for example,  by showing  that the  authority      did   not supply its  mind to the relevant considerations, or that the authority   was influenced  by irrelevant  considerations or that the  authority was  influenced by improper motives. The Nagpur Bench of the Bombay High Court read down s. 16A(9) of the Maintenance of Internal Security Act, 1971 1 implying an exception in  favour of  disclosure to  the Court.  The High Court did not decide about the validity of the Thirty-eighth and    Thirty-ninth Constitution Amendment Acts.      Accepting the  States’ appeals,  some  by  certificates granted by  the High  Court and  some by  special leave, the Court by majority (Khanna, J. dissenting), ^      HELD .  (Per majority  A.N. Ray  C.J.  M.H.  Beg.  Y.V. Chandrachud and P.N. Bhagwati JJ.)      (1) In  view of  the Presidential Order. Dated June 27, 1975, under  Clause (1) of Art. 359. no person has any locus standi to move any writ petition under Art 226 before a High Court for  habeas corpus   or  any   other writ  or order or direction  to   challenge  the  legality  of  an  order.  Of detention on  the ground  that the  order is not under or in compliance with the Act or is illegal or is vitiated by mala fides  factual   or  legal   or  is   based  on   extraneous considerations.                                                   [477 E-F].      (2) Section  16A(9)  of  the  Maintenance  of  Internal Security Act, 1971 is constitutionally valid. [477 F]      (3) Section 18 of the Maintenance of’ Internal Security Act, 1971 is not invalid. [240 A-D, 342 F-G, 414 D] 176      (4)Article  21   of  the   Constitution  is   the  sole repository of  rights to  life and  personal liberty against State. [246  B] Per A. N Ray J      In view  of the Presidential order dated June 27, 1975, under Clause  (1) of Art. 359, no person has locus standi to move writ  petitions under  Art.  226  of  the  Constitution before a  High Court  for habeas corpus or any other writ or order or  direction to enforce any right to personal liberty of a  person detained  under  the  Maintenance  of  Internal Security  Act,  1971  on  the  grounds  that  the  order  of detention or  the continued  detention is for any reason not in compliance  with the  Act or is illegal or male fide [245 H, 246 A]      Article 21 is the sole repository of rights to life and

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personal liberty  against a  State. Any  claim to  a writ of hebeas  corpus  is  enforcement  of  Art.  21  and    .  is, therefore, barred by the Presidential order. [246 B]      Girindra Nath  Banerjee v Birendra Nath Lal ILR 54 Cal. 727; Kinng emperor v. Shib Nath Banerjee 1972 Indian Appeals 241 and  Makhan Singh  v. State of Punjab [1964] (4) SCR 797 referred to.      Scope of judicial reivew in emergency.      In   times of  emergency the  executive safeguards  the life of  the nation  and,   therefore, its actions either on the ground  that    these are  arbitrary or unlawful  cannot be challenged  in view  of the  fact that  considerations of security  forbid  proof  of  the  evidence  upon  which  the detention was ordered. [219 B-E]      Liversidge v.  Sir John  Anderson [1942] AC 206. Greene v. Secretary  of State for Home Affairs [1942] AC 284; Mohan Chaudhary v.  Chief Commissioner  Union Territory of Tripura [1964] 3  SCR 442  and Makhan  Singh v.  ," State  of Punjab [1964] 4 SCR 797 followed.      Queen  v.  Halliday  Ex  Parte  Zadiq  [1917]  AC  210, referred. to.      Liberty is  confined and  controlled  by  law,  whether common law  or statute.  The safeguard  of liberty is in the good sense of the people and in the system of representative and  responsible  Government  which  has  been  evolved.  If extraordinary   powers are given, they are given because the emergency is  extraordinary and are limited to the period of emergency. Liberty  is itself the gift of the law and may by the law forfeited or abridged. [222 D, G]      Zamora’s case [1916]2 Ac 107 and Liversidge v. Sir John Anderson [1942] AC 206, referred to.      The vital distinction between Arts. 358 and 359 is that Art 358  suspends the  rights only   in  Article 19  to  the extent that  the Legislature can make laws contravening Art. 19 during  the operation  of a Proclamation of emergency and the  Executive  can  take  action  which  The  Executive  is competent to  take under  such laws  Article  358  does  not suspend any  Fundamental  Right.  While  a  proclamation  of emergency is  in operation the Presidential order under Art. 359(1)  can   suspend  the   enforcement    of  any  or  all Fundamental Rights. Article 359(1) also suspends any pending proceedings for the enforcement of such Fundamental Right or Rights.  Another   important  distinction  between  the  two Articles is  that Art.  358 provides  for indemnity. whereas Article 359(1)  does not:  Article 359(1A)  is on  the  same lines  as   Art.  358,  but  Article  359(1A)  includes  all Fundamental Rights  which may be mentioned in a Presidential order aud  is, therefore,  much wider  than Art.  358  which includes Art. lg only. [223 E-G]      The purpose  and    object  of Art.  359(1) is that the enforcement  of  any  Fundamental  Right  mentioned  in  the Presidential order  is barred  or it  remains      suspended during the  emergency. The  scope of Art. 359(1) is not only to  restrict   the  application   of  the   Article  to  the legislative field.  bet also  to the  acts of the Executive. The object of Article 359(1) is not only that the right 177 to move this Court only is barred but also the right to move any High  Court The  bar created  by Art.  359(1) applies to petitions  for   the  enforcement   of  Fundamental   Rights mentioned in  the Presidential  order whether  by way  of an application under  Art. 32  or by  way of  application under Art. 226. An application invoking habeas corpus under s. 491 of the  Code of  Criminal Procedure cannot simultaneously be moved in the High Court. [223 H, 224 D]

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    Shri  Mohan   Chaudhary  v.  Chief  Commissioner  Union Territory of Tripura [1964] 3 SCR 442. Makhan Singh v. State of Punjab  [1964] 4  SCR 797  and Dr.  Ram Manohar  Lohia v. State of Bihar & ors. [1966] 1 SCR 709, applied.      The argument that jurisdiction and powers of this Court under Art.  32 and  of the  High Courts  under Art.  226 are virtually abolished  by the  Presidential order  without any amendment of  the Constitution is incorrect. No amendment to the Constitution  is necessary  because no  jurisdiction and power either  of this  Court or  of the  High Court is taken away. When  a Presidential order takes away the locus standi of the  detenu to  move any  court for  the  enforcement  of Fundamental Rights  for the time being, the jurisdiction and powers  of   this  Court  and  of  the  High  Courts  remain unaltered. [224 E-F]      Article 359(1) is not directed against any court, it is directed against an individual and deprives him of his locus standi. If  courts will  in spite  of the Presidential order entertain the  applications and  allow the detenu to enforce to start  or to  continue proceedings or enforce Fundamental Rights,  Article  359(1)  will  be  nullified  and  rendered otiose. [224 F, 227 C-D]      Unlike the  1962 Presidential order, in the 1975 order, the  suspension   is  not   hedged  with  any  condition  of enforcement of  any right  under Articles  21  and  22.  The Presidential order  is, therefore,  a bar  at the threshold. [228 D-E]      Makhan Singh  v. State  of Punjab  [1964] 4 SCR 797 and State of Maharashtra v. Prabhakar Pandurang Sangzgiri & Anr. [1966] 1 SCR 702, distinguished.      There are  no natural rights. Fundamental Rights in our Constitution are  interpreted to be what is commonly said to be natural rights. [229 C-D]      H. H.  Kesvananda Bharti  Sripadagalavaru v.  State  of Kerala [1973] SUPP. I SCR 702. followed.      Law means  law enacted by the State. Law means positive State made  law The phrase "Procedure established by law" in Art. 21  includes substantive  and  procedural  law.  A  law providing for  the procedure  depriving a  person of liberty must be a law made by statute. [229 D-E]      A K.  Gopalan v.  Stale of  Madras [1950] SCR 88; P. D. Shamdasani &  ors v.  Central Bank  of India Ltd. [1952] SCR 391; Smt. Vidya Verma through   next friend R. V. S. Mani v. Dr. Shiv Narain Verma [1955] 2 SCR 983, applied.      There is  no difference  between the expression "except according to  procedure established  by law"  in Art. 21 and the expression  "save by the authority of law" in Art. 31(1) or the  expression "except by authority of law" in Art. 265. It is  incorrect to  suggest that  when Art. 21 was enacted, the founding  fathers only  enshrined the  right to personal liberty  according  to  procedure  and  did  not  frame  the constitutional mandate  that personal  liberty could  not be taken except according to law. [232 B-D]      Part III of our Constitution confers Fundamental Rights in positive  as well  as negative  language.  A  Fundamental Right  couched  Couched  negative  language  accentuates  by reason thereof  the importance  of that  right. The negative language is  worded to  emphasize the  immunity  from  State action as     Fundamental Right. Fundamental Rights have the texture of Basic Human Rights.                                             [229 G, 230 A-B]      State of Bihar. v. Maharaja Dhiraja Sir Kameshwar Singh of Dhrbhanga  & Ors. [1952] SCR 889 at 988 989; A. K Gopalan v. State  of Madras [1950] SCR 88; Rustom Cavasjee Cooper v. Union of  India [1970] 3 SCR 578 571 and 576 to 578: Shambhu

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Nath Sarkar v. The State of West Bengal  & Ors. [1974] 14-833SupCI/76 178 1 SCR;  Haradahan Saha & Anr. v. State of West Bengal [1975] 1 SCR  778 and  Khudiram Das  .v State of West Bengal & ors. [1975] 2 SCR 832, referred to.      Article 21  is our  Rule  of  Law  regarding  life  and liberty. No other Rule of Law can have separate existence as a distinct right. The negative language of Fundamental Right incorporated in Part III imposes limitations on the power of the State  and declares  the corresponding guarantees of the individual  to   that  fundamental   Right.  Limitation  and guarantee are  complementary. The  limitation      of  State action embodied in a Fundamental Right couched in a negative form is  the measure  of the  protection of  the individual. [230 C-D]      Rustom Cavasji  Cooper v.  Union of  India [1970] 3 SCR 568, applied.      Personal liberty  in Article  21 includes all varieties of rights which go to make personal liberty other than those in Art. 19(1)(d). [230 C-C]      Kharak Singh v. State of U.P. and ors. [1964] 1 SCR 332 and Rustom  Cavasjee Cooper  v Union  of India  [1970] 3 SCR 530, referred to.      If any  right existed  before the  commencement of  the Constitution  and   the  same  right  with  its  content  is conferred by  Part III  as a Fundamental Right the source of that right is in Part III and not in any pre-existing right. Such pre-constitutional  rights have  been elevated  in Part III as  Fundamental Rights.  If there  is a pre-constitution right which  is expressly  embodied as  a Fundamental  Right under our Constitution, the common law right has no separate existence Under  Our Constitution.  If there  be  any  right other than  and more extensive than the Fundamental Right in Part III,  such right  may continue to exist under Art. 372. [230 F-H]      Dhirubha Devi  Singh Gohil  v. State of Bombay [1955] 1 SCR 691-693, referred to.      B. Shankara  Rao Badami and ors. v. State of Mysore and Anr. [1969] 3 SCR 1 @ 11-13, applied.      Apart from the remedy under the common law of torts, by way of  suit for  false imprisonment  and claim for damages, there was  no civil  remedy for unlawful infringement of the right to  personal liberty in India before the Constitution. Even this  remedy, after the amendment of s. 491 of the Code of criminal Procedure became a statutory right in the nature of a habeas corpus. The provisions of s. 491 of the Criminal Procedure Code have been repealed by Act II of 1974 as being superfluous in view of Art. 226. [231 C-D]      Waghela Rajsanji  v. Sheik Masludin and ors. 14 I.A. 89 1) 96.  Satish Chandra Chakravarti v. Ram Dayal De I.L.R. 48 Cal. 388  @ 407-10,  425-426. Baboo S/o Thakur Dhobi v. Mst. Subanshi w/o  Mangal Dhobi  AIR 1942 Nagpur 99; Makhan Singh v. State  of Punjab  [1964] 4  SCR 797;  District Magistrate Trivandrum v. K. C. Mammen Mappillai I.L.R. [1939] Mad. 708; Matthen v.  District Magistrate Trivandrum L.R. 66 I.A. 222. Girindranath Banerjee  v. Birendranath  Pal ILR  54 Cal. 727 and King  Emperor v.  Sibnath Banerjee 72 1.A. 241, referred to.      There was  no statutory  right to  enforce the right to personal liberty  other than  that in s. 491 of the Criminal Procedure Code  before the  commencement of the Constitution which could  be carried  over after  its commencement  under Art.  372.   Law  in   Art.  21   will  include   all  post- constitutional  statute,   law  including   Maintenance   of

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Internal Security  Act, 1971  and by  virtue of Art. 372 all pre-constitutional statute law, including the I.P.C. and the Cr.P.C. [231 F-G]      The present appeals do not touch any aspect of Art. 20. Article 20  is a constitutional mandate to the judiciary and Art. 21  is a  constitutional mandate  to the Executive. The expression "no  person shall  be  prosecuted  for  the  same offence more  than once"  in Art. 20 would apply only to the executive. It is 179 incorrect to  say that  "State" in Art. 12 will also include the  Judiciary  and  Art.  20  is  enforceable  against  the Judiciary in respect of illegal orders.                                               [232 E-F, G-H]      Makhan Singh   v.  State of Punjab [1964] 4 SCR 797 and Narayan Singh  v. State of Delhi and ors. [1953] SCR 652 not applicable.      Articles 256, 265 and 361 have no relevance to displace the proposition  that Art. 21 is the repository of rights to life  and   liberty.  Nor  does  an  appeal  in  a  criminal proceedings have anything to do with Art. 21. [233 C-D]      Garikapatti Veerayya v. N. Subbiah Choudhury [1957] SCR 488 and Ahmedabad   Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahal Ramnand and ors. [1973] 1 SCR 185, referred to.      The right  arising from  a decree  is not a Fundamental Right and,  therefore, will  not be prima facie covered by a Presidential order under Art. 359(1)                                                      [233 G]      Fundamental Rights  including  the  right  to  personal liberty  are   conferred  by   the  Constitution.  Any  pre- constitution rights  which are  included in  Art. 21  do not after the  Constitution remain  in existence  which  can  be enforced, if  Art. 21  is suspended  If it  be assumed  that there was  any pre-constitutional  right to personal liberty included in  Art. 21  which continued to exist as a distinct and separate  right then  Art. 359(1) will be an exercise in futility. [234 A-B]      Makhan  Singh   v.  State  of  Punjab  [1964]  SCR  797 explained.      The theory  of eclipse  is  untenable.  The  theory  of eclipse  refers   to  pre-constitutional   laws  which  were inconsistent with  Fundamental Rights.  By  reason  of  Art. 13(1) such  laws did  not became  void but  became devoid of legal force.  Such laws  became eclipsed for the time being. The theory  of clipse  has no relevance to the suspension of the enforcement of fundamental Rights under Art. 359(1). The constitutional  provisions   conferring  Fundamental  Rights cannot be said to be inconsistent with Art. 13(1). [234 B-D]      P. D.  Shamdasani v.  Central Bank of India Ltd. [1952] SCR 391  and Smt.  Vidya Verma  through next friend R. V. S. Mani v. Dr. Shiv Narain Verma [1955] 2 SCR 983, reiterated.      The Act  in the  present case  is valid  law and it has laid down procedure of applying the law. The validity of the Act has  not been  challenged and  cannot be challenged. The Legislature has  competence to  make the law. The procedure, therefore, cannot  be challenged  because  Art.  21  and  22 cannot be  enforced. ’The  suggestion that  the power of the Executive is widened is equally untenable.                                                    [235 E-F]      The fact that s. 491 of the Criminal Procedure Code has been abolished  in he  new Code  establishes that  the  pre- existing right  was embodied  as a  Fundamental Right in the Constitution.  The   right  to   personal   liberty   became identified with  Fundamental Right to personal liberty under Art. 21. [236 A]

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    The Presidential  orders does  not alter or suspend any law. The rule of law is not a mere catchword or incantation. The certainty  of law  is one of the elements in the concept of the  rule of law. The essential feature of rule of law is that the  judicial power of the State is, to a large extent, separate from the Executive and the Legislature. [236 B-C]      It is  not correct to argue that if pre-existing law is merged in  Art. 21,  there will  be conflict  in the Article 372. The  expression "law  in force"  in Art.    372  cannot include laws  which are  incorporated in  the  Constitution, viz. in Part III. The expression "law" in Articles 19(1) and 21 takes in the statute law. [235 B]      The Presidential  order under Art. 359(1) is not a law. The order  does not  repeal any  law either.  The contention that permanent  law cannot  be repealed  by temporary law is misplaced. [235 C]      The entire  concept in  Art. 21  is  against  Executive action. There  is no question of infringement of Fundamental Right under Art. 21 where the detention 180 complained of  is by  a private person and not by a State or under the authority or orders of a State. [235 D]      The Executive  cannot detain  a person  otherwise  than under valid  legislation. The  suspension of any Fundamental Right does not affect this rule of the Constitution. Article 358 does  not detract  from the  position that the Executive cannot  act  to  the  prejudice  of  a  person  without  the authority of law. [237 A-F]      Rai Sahib  Ram Jawaya  Kapur &  ors. v.  The  State  of Punjab [1955]  2 SCR 225; MP. State v. Bharat Singh [1967] 2 SCR 454;  Dy. Collector  v. Ibrahim  & Co. [1970] 3 SCR 498. Bennet Coleman  & Co  v. Union of India [1973] 2 SCR 757 and Meenakshi  Mills  v.  Union  of  India  [1974]  2  SCR  398, discussed and distinguished.      The Constitution  is the  mandate. The  Constitution is the rule of law. No one can arise above the rule of law. The suspension of  right to  enforce Fundamental  Rights has the effect that  the emergency  provisions in  Part XVIII are by themselves the  rule of law during times of emergency. There cannot be any rule of law other than the constitutional rule of law.  ’There cannot  be  any  pre-constitution  or  post- constitution rule  of law  which can run counter to the rule of law  embodied in  the Constitution,  nor can there be any invocation to  any rule of law to nullify the constitutional provisions during the times of emergency. [224 B, 238 D-E]      Eshugbayi Eleko  v. Officer  Administering the Govt. Of Nigeria [1931]  AC 662  and Christie  and Anr. v. Leachinsky [1947] AC 573. not applicable.      The expression  "for any  other purpose"  in  Art.  226 means  for   any  purpose  other  than  the  enforcement  of Fundamental Rights.  A petition  for habeas  corpus   by any person under Art. 226 necessarily invokes a question whether the    detention is legal or illegal. An executive action if challenged to  be ultravires  a statute cannot be challenged by any  person who  is not aggrieved by any such ultra vires action. [239 D-E]      The expression  "purported to be made under s. 3 of the Act" in  s. 18  will include  an Executive  act made  by the District Magistrate  within the  scope of  his authority  as District Magistrate  even if  the order is made in breach of the section or is mala fide. [240 A-B]      Hari  Ram   Singh  v.  The  Crown  [1939]  F.C.R.  159. Bhagchand Dagadusa  v. The Secretary of State for India L.R. 54 I.A.  338 @  352; Albert  West Meade v. The King AIR 1948 P.C. 156  at 157-59;  Animistic v. Foreign Compensation etc.

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[1969] 1  All E.R.  208 at  212, 213  and 237  and  Dakshina Ranjan Ghosh  v. Omar  Chand Oswal I.L.R. SO Cal. 992 at 995 1003, applied.      Poona Municipal  Corporation v.  D. N. Deodhar [1964] 8 SCR 178;  Kala Bhandar  v. Municipal  Committee [1965] 3 SCR 489 and  Indore Municipality  v. Niyamultulla AIR 1971 SC 97 and Joseph v. Joseph [1966] 3 All. E.R. 486 not applicable.      There is  no question  of excessive delegation in s. 18 which lays  down the law. To contend that s. 18 applies only to post-detention  challenge is wrong. Section 18 applies to all orders  of  detention.  Section  18  of  Maintenance  of Internal Security  Act, 1971  is only an illustration of the Act by the officers authorised by the Act. [240 C-E]      Section 16A(9)  of the  Act is  valid. It  is a rule of evidence and  it is  not open  either to  the detenu  or the Court to ask for the grounds of detention.                                                      [246 C]      Materials and information on which orders of preventive detention are  passed  necessarily  belong  to  a  class  of documents  whose   disclosures  would   impair  the   proper functioning  of Public service and administration. [242 D]      Liversidge v.  John Anderson [1942] AC 206 at 221, 253, 254, 266,  267, 279,  280 and  Roger’s case  [1973] AC 388 @ 400, 401, 405, applied. 181      Legislature has  enacted  5.  16A(9)  providing  for  a general exclusion  from   evidence of  all such  material as would properly  fall within  the classification  instead  of forcing the  State to  claim in  individual cases  privilege under ss.  123, 162  of the Evidence Act or under Art. 22(6) of the Constitution. [242 E-F]      Section 16A  cannot be  said to be an amendment to Art. 226. The  jurisdiction to  issue writs  is neither abrogated nor abridged.  Section 16A(9) enacts provisions analogous to a conclusive  proof of  presumption. Such  a provision  is a genuine rule  of  evidence.  It  is  in  the  nature  of  an explanation to  ss. 123 and 162 of the Evidence Act. Section 16A(9) is  a rule  of evidence. When the detaining authority is  bound   by  s.  16A(9)  and  forbidden  absolutely  from disclosing such  material no  question can  arise of adverse inference against the authority. [242 G-H]      Section 16A(9)  cannot be read implying an exception in form of  disclosure to  the Court.  Such disclosure  to  the Court alone  and not  to the detenu will introduce something unknown to  judicial procedure  and will bring in an element of  arbitrariness   and  preclude   both  the  parties  from representing  their   respective  cases.  The  view  of  the detaining authority  is not to be substituted by the view of the court. [243 A-C]      State of  Bombay v  Atma Ram  Sridhar Vaidya [1951] SCR 167; Shiban  Lal Saksena  v. State of Uttar Pradesh and ors. [1954]  SCR  418;  Rameshwar  Shaw  v.  District  Magistrate Burdwan and Anr. [1964] 4 SCR 921; Jaichand Lal v. W. Bengal [1966] Supp.  SCR 464  and Dr. Ram Manohar Lohia v. State of Bihar [1966] I SCR 709, referred to.      The theory  of good  return mentioned  in  the  English decisions is  based on the language of Habeas Corpus Act and the Rules  of the  Supreme Court of England. The practice of our Court is different. [243 C-D]      M. M. Damnoo v. J. K. State [1972] 2 SCR 1014 and A. K. Gopalan v. State of Madras [1952] SCR 391, distinguished.      It is  not competent for any court to go into questions of malafides  of the  order  of  detention  or  ultra  vires character of  the order  of detention  or that the order was not passed on the satisfaction of the detaining authority.

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    Section 16A of the Act contains definite indications of implied exclusion  of judicial  review on the allegations of mala fide.  The reason  why s.  16A has  been enacted  is to provide for  periodical review by Government and that is the safeguard against any unjust or arbitrary exercise of power. The production  of the  order which  is  duly  authenticated constitutes a  peremptory answer to the challenge. [243 G-H, 244 A, 245 B]      In view  of the  inability of  the court  to grant  any relief on the basis whether order of detention is the result of malice  or ill  will, the  detention of  malafides is not only ineffective but also untenable. [244 DE]      Lawrence loachim  Joseph D’s  Souza  v.  The  State  of Bombay [1956]  SCR 382 @ 392, 393; Smith v. East Elloc Rural District Council  & ors.  [1966] AC  736 at  776 and Dr. Ram Manohar Lohia  v. State  of Bihar and ors. [1966] 1 SCR 709, referred to.      A decision  on a point not necessary for the purpose or which does  not fall  to  be  determined  in  that  decision becomes obiter dictum. [227 F]      Maharaja Dhiraja  Madhav Rao Jivaji Rao Scindia Bahadur JUDGMENT: and 193 to 194, referred to. Per M. H. Beg, 1.      A prima  facie valid  detention order,  that is to say, one duly  authenticated and  passed by an officer authorised to make  it recording a purported satisfaction to detain the petitioner under  the Maintenance  of Internal Security Act, which is  operative either  before or after its confirmation by the Government, is a 182 complete answer  to a  petition for a writ of habeas corpus. Once such  an order  is shown  to exist   in  response to  a notice for  a writ  of habeas  corpus, the High Court cannot inquire into  its validity  or vires on the ground of either mala fides  of  any  kind  or  of  non-compliance  with  any provision of  the Maintenance  of Internal  Security Act  in habeas corpus proceedings. [371 G-H, 372 A]      The  fundamental  law  found  in  the  Constitution  is paramount.  The  Constitution  provides  the  test  for  the validity of  all other  laws.  It  seeks  to  determine  the spheres of  executive and  legislative and  judicial  powers with meticulous  care and  precision. The judicial functions though wider  in range  when interpreting  or applying other articles of  the Constitution,  particularly Articles 14 and 19, the  enforcement of  which is  also suspended during the current  emergency,   is  especially   constricted  by   the elaborate provisions  of Articles 21 and 22, which deal with personal liberty  and preventive  detention. The  wider  the sweep of  the provisions  of Articles  21 and  22  the  more drastic must  be the effect of suspending their enforcement. Suspension does  not  and  cannot  mean  retention  under  a disguise. [312 F-H]      Marbury v.  Madison [1803]  I Cranch 137; A. K. Gopalan v. State of Madras [1950] SCR 88 @ p. 109, referred.      The only  Rule of Law which can be recognised by courts of our  country is  what is  deducible from our Constitution itself. The  Constitution is  an embodiment  of the  highest "positive law" as well as the reflection of all the rules of natural or  ethical or  common law Lying behind it which can be recognised  by courts.  The spirit  of law or the Rule of Law Cannot  hover ominously  around  like  some  disembodied ghost serving  as a  substitute for the living Constitution. It has  to be  found always  within and operating in harmony with  and  never  outside  or  in  conflict  with  what  our

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Constitution enjoins.                                                 [313 A, D-E]      The most  important  object  of  making  certain  basic rights fundamental  by the  Constitution  is  to  make  them enforceable against  the State  and its agencies through the Courts. [329 F]      Under our  constitutional jurisprudence  courts cannot, during a  constitutionally enjoined  period of suspension of the enforceability  of fundamental  rights  through  courts, enforce hat  may even  be a  Fundamental Right  sought to be protected by Part III of the Constitution. [314 C-D]      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 vower  of its enforcement by the judicial organs. 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 the detention as illegal  when   it   is   so   found   upon   investigation. Enforceability of  rights, whether.  they are constitutional or common  law or  statutory, in constitutionally prescribed ways  by   constitutionally  appointed  judicial  organs  is governed solely  by the terms of the written instrument in n Constitution such as ours. The scope for judicial law making on the  subject of  enforcement of  the  right  to  personal freedom was  deliberately  restricted  by  our  Constitution makers.  It   is  difficult  to  see  any  such  scope  when enforcement itself is suspended. [314 E-F, 315 B-C]      What is  suspended is  really  the  procedure  for  the enforcement of a right through courts which could be said to flow from  the infringement of a statutory procedure. If the enforcement of  a right  to be  free, resulting derivatively from both  the constitutional and statutory provisions based on an  infraction of  the procedure.  which is  statutory in cases  of   preventive  detention,   is  suspended,   it  is impossible to lay down that it becomes enforceable when that part of  the procedure  which is  mandatory is  violated but remains unenforceable  so long  as the part of the procedure infringed is  directory. Such  a  view  would  introduce  a’ distinction which  is neither  warranted by  the language of Article  359   of  the  Constitution  nor  by  that  of  the Presidential order of 1975. [315 F-G] 183      If  the   protection  of   enforceability  is   validly suspended for  the duration of an  Emergency, declared under constitutional provisions,  the  courts  will  have  nothing before them to enforce so as to able to afford any relief to a person who comes with a grievance before them. [329 G]      A court cannot. in exercise of any supposed inherent or implied or  unspecified power,  purport to  enforce  or,  in substance enforce,  a right  the  enforcement  of  which  is suspended. To permit such circumvention of the suspension is to authorise  doing indirectly what law does not allow to be done directly. [317 E-F]      [His Lordship  felt that it was unnecessary to consider "any other  purpose" in Art. 226 of the Constitution in view of the  fact that each of detenus asked for a writ or habeas corpus and for no other kind of writs or orders.]      The Constitution  given unto  themselves by the people, is legally  supreme. A  notional surrender  by the people of India of  control over their several or individual rights to a  Sovereign   Republic  by   means  of  a  legally  supreme Constitution only means that the Constitution is supreme and

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can confer  rights and  powers. One  has to look to it alone and not  outside it  for finding out the manner in which and the limits subject to which individual citizens can exercise their separate  freedoms. A  satisfactory explanation of the language of conferment used with reference to rights is that there has  to be  necessarily, as a result of such a process of Constitution  making, a  notional surrender of individual freedom so  as to  convert the  possibility of  "licence" to all, which  ends in  the exploitation  and oppression of the many weak  by the few strong into the actuality of a freedom for all regulated by law or under the law applicable to all. [318 F-H]      Smt. Indira  Nehru Gandhi  v. Raj  Narain [1976]  2 SCR referred to.      Rules of natural justice, which are impliedly read into statutes from the nature of Functions imposed upon statutory authorities or bodies have sometimes been placed on the same footing as "Fundamental Rights of men which are directly and absolutely  safeguarded"   by  written   Constitutions.  The implied rules of natural justice do not override the express terms of  a statute.  They  are  only  implied  because  the functions which the statute imposes are presumed to be meant to  be   exercised  in  accordance  with  these  rules,  and therefore treated  as though they were parts of enacted law. The principles  of natural justice which are so implied must always hang,  if one  may so  put it  on pegs  of  statutory provisions  or  necessarily  flow  from  them  and  have  no independent existence. [319 G-H, 320 A]      State of  Orissa v. Dr. Miss Binapani Dei & ors. [1967] 2 SCR 625, applied.      Fundamental Rights are basic aspects of rights selected from what  may previously  have been  natural or  common law rights. These  basic aspects of rights are elevated to a new level of  importance by  the  Constitution.  Any  other  co- extensive rights,  outside the Constitution, are necessarily excluded by  their recognition as or merger with Fundamental Rights. [329 B]      The object  of making certain general aspects of rights fundamental is  to guarantee  them against illegal invasions of these  rights  by  executive,  legislative.  Or  judicial organs (i  e. Article  20) of  the State.  This  necessarily means that  these safeguards  can also  be  legally  removed under appropriate  constitutional or  statutory  provisions, although their suspension does not, by itself, take away the illegalities or  their legal consequences. The intention was to exclude  all other  control or  to make the Constitution, the sole  repository of  ultimate control over those aspects of human  freedom which are guaranteed in Part m. [319 A-C & 329 C]      Article 21  of the  Constitution has  to be interpreted comprehensively enough  to include,  together with  Art.  19 practically all  aspects of  personal freedom.  It  embraces both procedural  and substantive  rights. Article  22 merely makes it clear that deprivations of liberty by means of laws regulating  preventive   detention  would   be  included  in "procedure established  by  law"  and  indicates  what  that procedure should  be. In  that sense, it could be viewed as, sub- 184 stantially, an  elaboration of  what is found in Article 21, although it  also goes  beyond it  inasmuch  as  it  imposes limits on ordinary legislative power. [329 D-E]      Taken  by  itself,  Art.  21  of  the  Constitution  is primarily a  protection against  illegal deprivations by the executive  action   of  the   State’s  agents  or  officials

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although, read with other Articles, it could operate also as a  protection   against  unjustifiable   legislative  action purporting to  authorise deprivations  of personal  freedom. [329-F]      Article 21  was only  meant, on the face of it, to keep the exercise of executive power, in ordering deprivations of life or  liberty, within  the bounds  of power prescribed by procedure established  by legislation  Article 21  furnishes the guarantee  of "Lex",  which is  equated with statute law only, and  not of  "jus"  or  a  judicial  concept  of  what procedural law  ought really  to be. The whole idea in using this expression  was to  exclude judicial  interference with executive action  in dealing  with lives  and  liberties  of citizens and  others living  in our  country on  any  ground other  than  that  it  is  contrary  to  procedure  actually prescribed by law which meant only statute law. According to well  established  canons  of  statutory  construction,  the express terms  of "Lex" (assuming, of course, that the "Lex" is otherwise  valid), prescribing  procedure,  will  exclude "Jus" or  judicial notions  of "due  process"  or  what  the procedure. Ought to be. [321 H. 322 A-C]      A. K. Gopalan v. State of Madras [1950] SCR 88 referred to.      The suggestion  that ’jus", which has been deliberately excluded from the purview of "procedure established by law", can be  introduced by courts, through a back door, as though it was  an independent right guaranteed by Chapter III or by any other  part of  the Constitution,  cannot be acceded to. [322 E-F]      R. C.  Cooper v.  Union of India [1970] 3 SCR 530, 578, distinguished.      Neither  rights  supposed  to  be  recognised  by  some natural law  nor those  assumed to  exist in  some  part  of Common Law could serve as substitutes for those conferred by Part III  of the  Constitution. They  could not  be, on  any principle of  law or  justice or  reason, virtually added to Part  III   as  complete   replacements  for   rights  whose enforcement is  suspended, and  then  be  enforced,  through constitutionally   provided   machinery,   as   the   unseen appendages of  the Constitution  or as  a separate  group of rights outside  the Constitution  meant  for  the  emergency which suspends  but does  not  resuscitate  in  a  new  form certain rights. [325 B-D]      His Holiness  Kesavananda  Bharati  Sripadagalavaru  v. State of  Kerala  [1973]  Supp.  SCR  @  1.  Satish  Chandra Chakraworti v. Ram Dayal De ILR 48 Cal. 388 P @ 407-410, 425 and 426:  Waghela Rajsanji  v. Sheikh  Masludin and  ors. 14 Indian Appeals  p. 89  and Baboo  Seo Thakur  Dhobi v.  Mst. Subanshi w/o Mangal Dhobi, AIR 1942 Nagpur 99, referred to.      Not only  all steps  leading up  to the  deprivation of personal liberty  but also the substantive right to personal freedom. by  implication, is  covered by  Article 21  of the Constitution. [328 E-F]      1. C.  Golaknath &  ors. v.  Sate of Punjab and Another [1962] 2 SCR 762.      Even if  Art. 21  is not  the sole  repository  of  all personal freedom,  it will  be clear,  that all  aspects  of freedom of  person are  meant to  be covered by Articles 19, 21, and  22 of the Constitution. If the enforcement of these rights by  Courts is  suspended  during  the  emergency,  an inquiry by  a court into the question whether any of them is violated by  an  illegal  deprivation  of  it  by  executive authorities of the State seems futile. [328 H, 329 A]      A. K.  Gopalan State of Madras [1950] SCR 88 and Kharak Singh v.  State of UP & ors. [1964] I SCR 332, applied.

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    The power  to issue  a writ  is conferred  upon  courts exclusively by our Constitution All the powers of our courts flow from  the Constitution  which is  the source  of  their jurisdiction.  If   any  provision   of  the    constitution authorises the 185 suspension of  the right  to obtain  relief in  any type  of cases, the power of courts  is thereby curtailed even though a general  jurisdiction to  afford the relief in other cases may be there. If they cannot issue writs of habeas corpus to enforce  a  right  to  personal  freedom  against  executive authorities during  tho emergency,  the original  nature  of this writ  issuing power comparable to a "prerogative" power cannot help the detenu. [330 G-H]      It is  a well recognised principle of law that whatever could be  formerly even  said to be governed by a common law prerogative power becomes merged in the Constitution as soon as  the  Constitution  takes  it  over  and  regulates  that subject. [331 A]      Principle in  Attorney-General  v.  De  Keyser’s  Royal Hotel Limited, [1920] A.C. 508 @ 526 applied.      If there  is no  enforceable right either arising under the Constitution  or otherwise,  it is  useless to appeal to any general  power of  the court  to issue  a writ of habeas corpus. If the effect of suspension of the right to move the court for  a writ  of habeas  corpus is  that no inquiry can take place  beyond finding out that the cause is one covered by the  prohibitions mere  possession of  general power will not assist the detenu. [331 C-D]      If the right to enforce personal freedom through a writ of habeas  corpus is  suspended, it  cannot be said that the enforcement can  be restored  by  resorting  to  "any  other purpose". That other purpose could not embrace defeating the effect of  suspension of the enforcement of a constitutional guarantee and  if held  so would  be making a mockery of the Constitution. [331 D-E]      Nothing in the nature of a writ of habeas corpus or any power of  a High  Court under Art. 226 could come to the aid of a  detenu when  the right  to enforce a claim to personal freedom, sought  to be  protected  by  the  Constitution  is suspended. [331 E-F]      Provision for  preventive  detention  in  itself  aptly described as "jurisdiction of suspicion" is a departure from ordinary norms, and resorted to either in times of war or of apprehended internal disorders and disturbances of a serious nature, with  the object  of preventing  a greater  dager to national security  and integrity  than any claim which could be based  upon  a  right,  moral  or  legal,  to  individual liberty. [332 B-C]      Haradhan Saha  & Anr.  v. The  State of West Bengal and ors. [1975]  1 SCR 778; Khudiram Das v. State of West Bengal [1975] 2 SCR p.832 @ p. 842; State of Madras v. V.G. Row AIR 1952 SC 197 @ 200 and Rex v. Halliday [1917] A.C. 260 @ 275, referred to.      It is true that the Presidential order of 1975 like the     Presidential order of 1962, does not suspend the general   power of this Court under Art. 32 or the general powers of    High Courts under Art. 226, bot the effect of taking away  enforceability of the right of a detenu to personal freedom  against executive authorities is to affect the locus standi   in cases which are meant to be covered by the Presidential     order. Courts, even in habeas corpus proceedings, do not         grant relief independent of the rights of the person      deprived of liberty. If the locus standi of a detenu is suspended, no one car. claim to get his right enforced.,

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                                                  [338 E-F]      If a  case so  patently gross  and clear of a detention falling, on the face of the order of detention or the return made to  a notice  from the court, outside the provisions of the Act  on the  ground of  personal malice of the detaining authority, or,  some other  ground utterly  outside the Act, arises so  that no  further investigation  is called for, it may be  possible to  contend that it is not protected by the Presidential order  of June  27, 1975, and by the provisions of Art. 359(1) of the Constitution at all. The mere presence of an  official seal  or signature  on a detention order, in such a  purely hypothetical  case,  may  not  be  enough  to convert it  into a  detention by  the State or its agents or officers. That is the almost utterly inconceivable situation or type of case which could still 186 be covered  by the  general power  to issue  writs of habeas corpus. The remedy by way of a writ of habeas corpus is more general than  relief against  official action.  It lies even against illegal  detentions by  private persons although not under  Art.   32  which   is  confined   to  enforcement  of Fundamental Rights. [339 A-E]      Shrimati Vidya  Verma, though  next friend R.V.S. Mandi v. Dr Shiv Narain Verma [1955] 2 SCR p. 983, referred to.      Courts must  presume  that  executive  authorities  are acting in  conformity with both the spirit and the substance of the  law: The maxim "omnia praeswumuntur rite esse actus" means that  all official  acts are  presumed  to  have  been rightly and  regularly done.  If the burden to displace that presumption is  upon detenu,  he cannot,  in a habeas corpus petition under  Art. 226  of the Constitution, ask the court to embark  upon an  inquiry, during the emergency, and allow him to  lead evidence  to rebut  this presumption.  To do so would  be   plainly  to   countenance  a  violation  of  the Constitutional mandate suspending the procedure. [340 A-C]      Eshughayi Eleko v. Officer Administering the Government of Nigeria  & Anr.  [1931] A.C. 622 @ 670; Liversidge v. Sir John Anderson  and Anr. [1942] A.C. p. 206 @ 217 and 219 and 273. Rex  v. Secretary  of State  of Home  Affairs, Ex parte Lees [1941]  1 K.B.  72 and  Green v.  Secretary of State of Home Affairs, [1942] AC 284 @ 293, discussed.      Decisions on what restraints should be put and on which persons during  a national  emergency, in  the interests  of national security,  are matters  of policy which are outside the sphere of judicial determination. [344 G]      Liversidge v.  Sir John  Anderson [1942] AC 206 and Rex v. Halliday Ex Parte Zadiq [1917] AC 260, referred to.      Under our Constitution, there is no distinction between the effects  of a declaration of emergency under Art. 352(1) whether the  threat to  the security  of the  State is  from internal  or  external  sources.  Presidential  declarations under Art. 352(1) and 359(1) of’ our Constitution are immune from challenge  in courts even when the emergency is over. A noticeable feature of our Constitutions is that, whereas the consequences given in Art. 358 as a result of a Proclamation under Art.  352(1) are  automatic, Presidential orders under Article  359(1)   may  have   differing  consequence,   from emergency to  emergency depending  upon  the  terms  of  the Presidential orders involved. And then, Article 359(1A) made operative  retrospectively   by  the   38th   Constitutional amendment of  1st August  1975, makes it clear that both the legislative and  executive organs of the State are freed for the duration  of the  emergency from  the limits  imposed by Part III of the Constitution. [348 A-D]      The striking  differences  in  the  terms  of  the  two

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Presidential orders are:      (1) The  Presidential order  of 1962  did  not  specify Article 14  of the  Constitution, but  Art. 14, guaranteeing equality before  the law and equal protection of laws to all persons in  India, is mentioned in the 1975 order. This does make some  difference  between  the  intentions  behind  and effects of’ the two Presidential orders. [352 B-C]      (ii) The President   Order of 1962 expressly hedges the suspension of  the specified  Fundamental  Rights  with  the condition, with regard to deprivations covered by Article 21 and 22  of  the  Constitution  that  the  detenu  should  be deprived of his rights "under the Defence of India Act, 1962 or any  rules or  order made thereunder". In other words. On the terms  of the  1962 Presidential  Order, the courts were under a  duty to  see whether  a deprivation satisfies these conditions or  not. They  could adjudicate upon the question whether a  detention was  "under "  the Act  or a rule "made thereunder". On  the other  hand, the  Presidential order of 1975 unconditionally  suspends the enforcement of the rights conferred upon  "any person  including a  foreigner" to move any court  for the  enforcement of  the rights  conferred by Articles 14,  21 and 22 of the Constitution. The Courts are. therefore, no longer obliged or able to test the validity of a detention by examining whether they conform to statutory 187 requirements. They  will have  to be content with compliance shown with forms of the law. [352 C-E]      (iii) Presidential  order of  1962 makes  no mention of pending  proceedings,  but.  the  1975  order  suspends  all pending  proceedings  for  the  enforcement  of  the  rights mentioned therein.  This further  clarifies  and  emphasizes that the intention behind the Presidential order of 1975 was to actually  affect the  jurisdiction  of  courts  in  which proceedings were  actually pending.  the inference from this feature also  is that all similar proceedings in future will similarly be affected. [352 E-F]      There can  be no doubt whatsoever that the Presidential order of  June 27,  1975,  was  a  part  of  a  unmistakably expressed intention to suspend the ordinary processes of law in those  cases where  persons complain  of infringement  of their fundamental rights by the executive authorities of the State. The intention of the Parliament itself to bring about this result so that the jurisdiction of courts under article 226 in  this particular type of cases is itself affected for the duration  of the  emergency, seems clear enough from the provisions of S. 16A(9) of the Act, introduced by Act No. 14 of 1976,  which received  Presidential assent on January 25. 1976, making  s. 16A(9)  operative retrospectively from June 25, 1975. [352 F-H]      There is  no doubt  that the object of the Presidential (order of  June ’27,  1975, by suspending the enforcement of the specified  rights, was to affect the powers of courts to afford relief  to those  the enforcement of whose rights was suspended. This  was within  the purview  of Article 359(1). Hence objections  that powers  of the courts under. Art. 226 may indirectly  be affected  is  no  answer  to  the  direct suspension of rights which was bound to have its effect upon the manner  in which  jurisdiction is or could reasonably be exercised  even   if  that  jurisdiction  cannot  be  itself suspended for all types of cases. [353 A-B]      The term  Rule of  Law is hot a magic wand which can he waved to dispel every difficulty. It is not an Aladin’s lamp which can be scratched to invoke a power which brings to any person in  need whatever he or she may desire to have It can only mean  what the  law in a particular State or country is

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and what  it enjoins.  This means  that the Rule of Law must differ in  shades of  meaning and emphasis from time to time and country  to country.  It could not be rigid, unchanging, and immutable  like the  proverbial laws  of the  Medes  and Persians. It cannot be like some brooding omnipotence in the skies. Its  meaning cannot  be what anyone wants to make it. It has  to be,  for each  particular situation. indicated by the courts as to what it means. [353 F-H, 354 A]      The Rule  of Law  includes the concept of determination by courts,  of the  question whether  an impugned  executive action  is  within  the  bounds  of  law.  It  pre-supposes, firstly, the  existence of  a fixed  or identifiable rule of law which  the executive has to follow as distinguished from a purely  policy decision open to it under the wide terms of the statute   conferring  a discretionary  power to act. and secondly the  power of  the courts  to test  the  action  by reference to the rule. [354 E-F]      Even in  emergencies provided the power of the court to so test the legality of some executive act is not curtailed, courts will  apply the  test’ of  legality  "if  the  person aggrieved brings the action in the competent court". But, if the locus standi of the person to move the court is gone and the competence of the court to enquire into the grievance is also  impaired  by  inability  to  peruse  the  ground    of executive action  or their  relationship with  the power  to act, it  is no  use appalling  to this particular concept of the Rule  of Law.  It is  just inapplicable to the situation which arises  here. Such  a situation  is  governed  by  the emergency provisions of the Constitution. [354 F-H]      Youngs Town  Sheet &  Tube Co. v. Sawyer, 343 U.S. 579, 655  and   Chief  Settlement   Commissioner,  rehabilitation Department Punjab  & Ors.  etc. v.  Om Prakash  & Ors.  etc. [1968] 3 SCR 655 @ [354 F-H]      Whereas Art.  358,  by  its  own  force.  suspends  the guarantees of  Art. 19,  Article 359(1)  has the  effect  of suspending the operation of specified Funda 188 mental Rights.  If, however, the application of Articles 14, 19, 21  and 22  of  the  Constitution  is  suspended  it  is impossible to  say that  there is  a Rule of Law found there which is  available for  the  courts  to  apply  during  the emergency to  test the legality of executive action. [355 A- C]      Mohd. Yaqab etc. v. The State of Jammu & Kashmir [1968] 2 SCR p. 227 @ 234, referred to.      The suggestion  that a common law remedy by way of writ of habeas corpus exists, even after s. 491 was introduced in the. Criminal  Procedure Code  in 1923,  is  incorrect.  The sweep of  Art. 359(1)  of the  Constitution  taking  in  the jurisdiction of "any court" is wide enough to cover any kind of relief  claimed by  a petitioner for the enforcement of a specified Fundamental Right.                                                    [355 D-E]      Pleas which  involve any adduction of evidence would be entirely excluded by the combined effect of the terms of The Presidential order  of June  27, 1975  read with the amended provisions of  s. 16A(9)  of the Act. In a case in which the officer purporting  to detain had in fact, not been invested at all  with any authority to act, the detention would be on the same footing as one by a private person who has no legal authority whatsoever to detain. [357 C-E]      Makhan Singh v. State of Punjab [1964] 4 SCR 797 @ 821- 822 and 5. Pratap Singh v. State of Punjab [1964] 4 SCR 733, referred to.      The suspension  of enforcement of specified Fundamental

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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. [357 G]      The presumption  of validity  of a  duly  authenticated order or  an officer  authorised to pass it is conclusive in habeas corpus  proceedings during  the current emergency. By means of  a differently  phrased Presidential  order of June 17, 1975  and the  amendments in the Act, introducing rather drastic provisions  of s.  16A of the Act, the intention has been made clear that preventive detention should be a matter controlled exclusively  by the  executive departments of the State. [358 B, 361 B-C]      State of Madhya Pradesh and Anr. v. Thakur Bharat Singh [1967]  2   SCR  454.  State  of  Maharashtra  v.  Prabhakar Pandurang Sangzgiri  and Anr.  [1966] 2  SCR  702;  Dr.  Ram Manohar Lohia  v. State  of Bihar and ors. [1966] 1 SCR 709; K. Anandan  Nembiar and  Anr. v. Chief Secretary, Government of Madras  and ors.  [1966] 2  SCR 406; Durga Das Dhirali v. Union of India and ors [1966] 2 SCR 573. Jai Lal v. State of West Bengal  [1966]  Supp.  SCR  p.  4,  64,  discussed  and distinguished.      lt is  very difficult  to see  the bearing  of any such doctrine that  the Rule  of Law  under our  Constitution  is embodied in  the principle of Separation of Powers on a pure and simple  question of  determination  of  the  meaning  of constitutional and  statutory provisions  couched  in  words which leave few doubts unresolved. [361 C-D]            If an order of preventive detention is not quasi-    judicial, as it cannot be because of the impossibility of     applying any objective standards to the need for it in a particular case, there could be no question of violating any      principle of Separation of Powers by placing preventive        detention exclusively within the control of executive  authorities of the State for the duration of the emergency.                                               [361 H. 352 A]      Rai Sahib  Ram Jawaya  Kapur and  ors. v.  The State of Punjab, AIR 1955 SC 549, referred to.      Means of  redress in  cases such  as those  of mistaken identity or  misapprehension of  facts or  of detenus due to false and  malicous reports  circulated by enemies are still open to detenu by approaching executive authorities. There 189 is no  bar against that. What is hot possible is to secure a release by  an order  in  habeas  corpus  proceedings  after taking the  courts behind  a duly  authenticated prima facie good return. [366 B-C]      If the  meaning of  the  emergency  provisions  in  our Constitution and  the provisions of’ the Act is clearly that what lies  in the executive field should not be subjected to judicial  scrutiny   or  judged  by  judicial  standards  of correctness the  courts cannot  arrogate unto  themselves  a power of  judicial superintendence  which they do not, under the law during the emergency, possess. [362 H]      It does  not  follow  from  a  removal  of  the  normal judicial superitendence  even over  questions of  vires,  of detention orders,  which may require going into facts behind the returns  that  there  is  no  Rule  of  Law  during  the emergency or  that the  principles of ultra vires are not to be applied  at all by any authority except when, on the face of the  return itself,  it is demonstrated in a court of law that the  detention does  not even purport to be in exercise of the  executive power  or authority or is patently outside

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the law authorising detention 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. [363 F-H]      In actual practice, the grounds supplied always operate as an  objective test for determining the question whether a nexus could  reasonably exist  between the grounds given and the detention  order or  whether some  infirmities had crept in.  The   reasonableness  of   the  detention  because  the justiciable issue  because it related to the decision. It is doubtful whether  this could  be said  to be  an  object  of preventive detention  authorised  by  the  Constitution  and embodied in the Act. [334 D-E]      The object  of the  amending Acts  39 of 1975 and 14 of 1976 was  to affect  the manner  in  which  jurisdiction  of courts in  considering claims  for  reliefs  by  detenus  oh petitions for  writs of habeas courts was being exercised so that the  only available  means that  has been developed for such cases  by the  courts, that  is to say, the scrutiny of grounds supplied  under s. 8 of the Maintenance. Of Internal Security Act  may be  removed from the judicial armoury, for the duration of emergency. [336-C-D]      Prabhu Dayal  Deorah etc. v. District Magistrate Kamrup and ors. AIR 1974 SC 183, referred to.      The contention  that s. 16A(9) affects the jurisdiction of High  Courts under  Art. 226  which an  order under  Art. 359(1) could  not do,  is untenable.  A  Presidential  Order which prevents  a claim for the enforcement of a Fundamental Right from  being advanced  in a court, during the period of an emergency  could possibly  be said  not to be intended to affect the exercise of jurisdiction of courts at all, is not correct. [336 F-G]      That  s.   16A(9)  amounts  to  a  general  legislative declaration in  place of judicial decisions which courts had themselves to  give after  considering, on the facts of each case, whether  Art.  226  could  be  applied,  is  also  not acceptable. the  result of s. 16A(9) to be valid would be to leave to the presumption of correctness of an order under s. 3 of  the Act untouched by any investigation relating to its correctness. Now  if this  be the  object and  effect of The amendment, it  could not  be said to go beyond it to rebut a presumption of  legality and validity or an order under s. 3 of the Act, if prima facie case is made out.                                             [336 G-H, 337 A] Observation      [The same  result could  have been achieved by enacting that a  detention order  under s.  3, prima facie good, will operate as  "conclusive proof" that the requirements of s. 3 have been  fulfilled. But,  as the  giving of grounds is not entirely dispensed with under the Act even as it now exists, this may  have left  the question  in doubt,  whether courts could call upon the detaining authorities 190 to produce  the grounds.  Enactment of  a rule of conclusive proof is  a well  established form of enactments determining substantive rights  in the  form of  procedural provisions]. [337 A-B]      Section  16A(9)  makes  it  impossible  for  courts  to investigate questions  relating to  the existence or absence of bona  fides at  least in  proceeding under An. 226, It is clear that the validity of s. 16A(9) cannot be challenged on the  ground,   of  any   violation  of   Part  III  of’  the

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Constitution in  view of  the provisions  of Art. 359(1)(A). [353 C-D]      A challenge  to the  validity of s. 16A(9) based either on the  submission on  hat grounds for detention do not call for secrecy or that the provision is an unwarranted invasion of judicial  power, even  in  an  emergency,  is  not  well- founded. There  is no  such strict separation of power under our  Constitution     No   particular   provision   of   the Constitution  could   be  pointed  out  in  support  of  the proposition that  preventive detention  is a matter in which judicial superintendence  must necessarily be preserved as a part  of the doctrine of separation of powers.                                                    [365 E-F]      Rai Sahib  Ram Jawaya  Kapur and ors v. State of Punjab AIR 1955 SC 549, referred to.      Section 16A(9)  imposes a  bar which cannot be overcome in  habeas  corpus  proceedings  during  the  emergency.  In addition, a  specific suspension or enforcement of the right of personal freedom against executive authorities places the presumption arising  from a  duly authenticated  order of  a legally authorised  detaining officer  on a  higher  footing than merely  ordinary rebuttable presumption for purposes of proceedings under Art. 226 of the Constitution. [367 F-G]      [His Lordship  felt it  unnecessary   to  consider  the validity of  s. 16A(9) if it was to be applied at a time not covered by the emergency, or whether it should, be read down for the  purposes of  a suit  for damages where the issue is whether the  detention was  ordered by  a particular officer out of  malice in,  fact and  for reasons completely outside the purview of the Act itself. [337 C-D]      Section 16  of the  Act seems to leave open a remedy by way of  suit for  Damages for  wrongful  imprisonment  in  a possible case of what may be called "malice in fact". In the cases for  habeas corpus,  proceedings under Art. 226 of the Constitution   where    "malice-in-fact"   could    not   be investigated. as  it is bound to be an allegation subsidiary to a  claim for  the enforcement  of  a  right  to  personal liberty, a Fundamental Right which cannot be enforced during the Emergency. [337 G-H]      Sree Mohan  Chowdhury v.  The Chief Commissioner, Union Territory of   Tripura  [1964] 3 SCR 442 @ 450, followed.      Even the  issue that the detention order is vitiated by "malice in  fact’ will  not be  justifiable in habeas corpus proceedings during  the emergency  although it  may be in an ordinary suit which is not filed for enforcing a Fundamental Right but  for other  reliefs. The  question of  bona  fides seems to  be left  open for  decision by  such suits  on the language of s. 16 of the Act itself. [368 D-E]      In the case of preventive detention, placing the burden upon  the   executive  authorities  of  proving  the  strict legality and  correctness of  every step  in  the  procedure adopted in  a case  of deprivation  of personal liberty, and asking  the   executive  authorities   to  satisfy   such  a requirement, in  accordance with  what has  been called  the principle in Eschugbayi Eleko’s case, [1931] A.C. 662 @ 670, would be  to nullify  the effect  of the  suspension of  the enforceability of  the procedural protection to the right of Personal  freedom.   To  do   so  is   really  to  take  the Presidential order  under Article 359(1) of the Constitution ineffective.                                                    [368 B-C]      No question  of "malice  in law"  can arise  in  habeas corpus proceedings  when such  a protection is suspended. As regards the  issue of "malico in fact" it cannot be tried at all in  a habeas  corpus  proceedings  although  it  may  be

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possible to  try it in a regular suit the object of which is not to  enforce a  right to  personal freedom  but  only  to obtain damages for a wrong done which is not 191 protected by  the terms of s. 16 of the Act. The possibility of  such  a  suit    should  be  another  deterrent  against dishonest use  of these  powers by detaining officers. [1368 D-E]      Section 18,  though unnecessary,  appears to  have been added   by way of abundant caution. It cannot be assailed on the ground of violation of basic structure. [342 F-G]      The theory  of basic  structure  oil  the  Constitution cannot be  used to  build into the Constitution an imaginary part which  may  be  in  conflict  with  the  constitutional provisions. The  Constitution cannot  have a  base out  away from the  superstructure. Indeed,  the emergency  provisions could themselves  be regarded as part of the basic structure of the Constitution. [366 E-F]      The theory  of  basic  structure  of  the  constitution cannot be  considered as anything more than a part of a well recognised mode  of constructing a document The Constitution like any  other document has to be read and constructed as a whole.  The  theory  was  nothing  more  than  a  method  of determining the  intent behind the constitutional provisions it could  not and  did not  build and  add a new part to the Constitution.  It   cannot  imply   new  tests   outside  he Constitution or be used to defeat constitutional provisions. [366 G, 367 A]      His Holiness  Kesavananda  Bharati  Sripadagalavaru  v. State of Kerala, [1973] Supp SCR 1, applied.      There  is  no  provision  in  our  Constitution  for  a declaration  of   Martial  Law   except  Art.   34  of   the Constitution which recognises the possibility of Martial Law in this  country. There  is no  separate indication  in  the Constitution of  conditions in  which Martial  Law could  be "proclaimed". A  Presidential order under Art. 359(1) of the Constitution would,  ordinarily,  have  a  wider  range  and effect throughout  the country than the existence of Martial Law in  any particular part of the country. The Presidential proclamations are  meant generally to cover the country as a whole. Martial  Law is  generally of  a  locally  restricted application. The conditions in which what is called "martial law" may  prevail result in taking Military Courts of powers even to try offences: and, the ordinary or civil courts will not  interfere   with  this   special   jurisdiction   under extraordinary conditions.  Such a  taking over  by  Military courts is certainly outside the provisions of Alt. 359(1) of the Constitution  taken by  itself. It  could  perhaps  fall under Presidential powers under Articles 53 and 73 read with Art. 355. [368 F-H. 369 A-C]      Judicial proceedings  in criminal  courts not meant for the enforcement of Fundamental Rights, are not either at the initial or  appellate or  revisional stages,  covered by the Presidential order  of 1975. Habeas corpus petitions are not maintainable, in  such cases since the prisoner is deemed to be in proper custody under orders of a court. [371-F-G]      Neither Article  136 nor  Art 226 of the Constitutional is meant  for the  exercise  of  an  advisory  jurisdiction. Attempts to  lay down the law in an abstract form, unrelated to the  facts of particular cases, not only do not appertain to the  kind of  jurisdiction exercised  by this Court or by the High  Courts under  the provisions  of Art.  136 and 226 respectively,   but may result in misapplications of the law declared by  courts to  situations for  which  they were not intended  at all. [306 D-E].

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Per Chandrachud, J.      The order  issued by  the President  on June  27, 1975, under  Article  359(1)  does  not  suspend  the  fundamental principle that  all executive action must have the authority of law  to support  it. Nor does the Presidential order give to the  executive a  charter to disobey the laws made by the Parliament which is the supreme law making authority.[413 B- C]      The aforesaid  Presidential order,  however, deprives a person of  his locus  stand; to  move any  court, be  it the Supreme Court  or the  High Court,  for enforcement  of  his Fundamental Rights which are mentioned in the order 192 Such deprivation or suspension enures during the period that the proclamation  of emergency  is  in  force  or  for  such shorter period as may be specified in the  order. [413 C-D]          The dominant purpose of the present petitions is to   obtain an order of release from detention by enforcing the    right to personal liberty. The purpose is not to obtain a  mere declaration that the order of detention is ultra vires  the Act under which it is passed. The former plea is barred      by reason of the Presidential order. The latter is also    barred because regard must be had to the substance of the matter and not to the form in which the relief is asked for.                                                    [413 E-F]      The Presidential  order dated  June 27,  1975, bars any investigation or inquiry into the question whether the order of detention is vitiated by mala fides, factual or legal, or whether it  is based on extraneous considerations or whether the  detaining   authority  had   reached   his   subjective satisfaction validly on proper and relevant material [413 F- G]      Whether or  not Art. 21 of the Constitution is the sole repository of  the right  to personal liberty, in a petition filed in the High Court under Art. ’226 for the release of a person detained  under the Maintenance of  Internal Security Act   1971, no  relief by way of releasing the detenu can be granted because  no person  has a legal capacity to move any court   to ask for such relief. The Presidential order takes away such legal capacity by including Art. 21 within it. The source of  the  right  to  personal  liberty  is  immaterial because the  words "conferred by" which occur in Art. 359(1) and in  the Presidential  order are not words of limitation. [413  G-H, 414 A]      The  Presidential   order  does  not  bring  about  any amendment of  Art. 226  and is not open to challenge on that ground. [414 B]      The contention that Art. 226 which occurs in Chapter V, Part VI  of the Constitution is an entrenched provision and, therefore, under  Art. 368  no amendment can be made to Art. 226 without  ratification by  the Legislatures  of not  less than one-half  of the  States is  untenable. It is true that Art. 226  is in  entrenched provision which cannot suffer an amendment except  by Following  the procedure  prescribed by the proviso  to Art.  368(2). But  the presidential order is issued  under  the  Constitution  itself  and  if  its  true constitutional produces  a certain results it cannot be said that some  other Article  of the Constitution stands thereby amended  article 359(1) provides for the passing of an order by the  President declaring  that the  right to move for the enforcement of  Fundamental Rights  mentioned. in  the order shall  be   suspended.  That  may,  in  effect.  affect  the jurisdiction of  the High Courts to entertain a petition for the issuance  of the  writ of  habeas corpus. But, that does not bring  about any  amendment of  Article 226  within  the

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meaning of  Art. 368,  which speaks  of  amendments  to  the Constitution by  the  Parliament  in  the  exercise  of  its constitutional power.  Article 226  and Article  359(1)  are parts of  the same  fundamental  instrument  and  a  certain interpretation of  one of  these Article cannot amount to an amendment of the other. 1;385 G-H, 386 A-B]      The Presidential  order neither  bars the  right of  an accused to defend his personal liberty in the court of first instance or  in a higher court nor does it bar the execution of decrees passed against the Government, nor dos it bar the grant of  relief other  than or less than the release of the detenu from detention. [414 B-C]      Detention without  trial is  a  serious    on  personal freedom but  it bears  the sanction of our Constitution. The "clear and  present danger  test"  evolved by Justice Holmes in Schenck  v. United  States, 249  U.S. 1919  may  well  be extended to  cases where  there  is  a  threat  of  external aggression. [384 D-E]      The object  of Art 359 is to confer wider powers on the President than the power merely to suspend the right to file a petition  for the  writ of habeas corpus. Article 359 aims at empowering  the President to suspend the right to enforce all or  any of the Fundamental Rights conferred be Part III. It is in order to achieve that object that Article  359 does not provide  that the  President may declare that the remedy by way of habeas corpus shall be suspended during emergency. Personal liberty  is  but  one  of  the  Fundamental  Rights conferred by  Part m  and  the  writ  of  habeas  corpus  is neculiar to the enforcement of the 193 right to  personal liberty  and, therefore the suspension of the right  to enforce  the right  conferred by Art. 21 means and implies  the suspension  of the  right tc  file a habeas corpus petition  or to  take any other proceeding to enforce the right  to personal liberty conferred by Article 21. [384 G-H, 385 A-B]      The true  implication of  the Presidential  order is to take away  the right of any person to move any court for the enforcement of  the rights mentioned in the order. In strict legal theory  the jurisdiction  and powers  of  the  Supreme Court and  the High  Courts remain  the same as before since the Presidential  order merely take away the locus standi of a person to move these courts for the enforcement of certain Fundamental Rights during the operations of the Proclamation of Emergency. The drive of Article 359(1) is not against the courts but is against individuals, the object of the Article being to  deprive the  individual concerned  of  his  normal right to  move the  Supreme Court  or the High Court for the enforcement of  the Fundamental Rights conferred by Part III of the Constitution [386 C-E]      Sree Mohan  Chowdhury v.  The Chief Commissioner, Union Territory of Tripura [1964] 3 SCR 442, 451, referred to.      The argument  that the limited object of Art. 359(1) is to  remove restrictions   on the power of the Legislature so that during  the operation of the Emergency it would be free to  make   laws  in  violation  of  the  Fundamental  Rights specified in  the Presidential  order  loses  sight  of  the distinction between  the provisions of Art. 358 and Art. 359 (1A) on the one hand and of Art 359(1) on the other. Article 358, of’  its own  force, removes  the restrictions  on  the power of the Legislature to make laws inconsistent with Art. 19 and on the  power of the Executive to take action under a law which  may thus  violate Art.  19. Article  358 does not suspend any  right which  was available under Art. 19 to any person prior  to  the  Proclamation  of  Emergency.  Article

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359(1) is  wider in  scope than  Art. 358.  In view  of  the language of  Art. 359(1)  and  considering  the  distinction between it  and the  provisions of  Art. 358,  there  is  no justification for  restricting the  operation of Art. 359(1) as against laws made by the Legislatures in violation of the Fundamental Rights. [386 G-H, 387 A-E]       Sree Mohan  Choudhary v. The Chief Commissioner, Union Territory of  Tripura [1964]  3 SCR  442 and Makhan Singh v. State of Punjab [1964] 4 SCR 797. referred to.      Article 359(1)  is as  much  a  basic  feature  of  the Constitution as  any other, and it would be inappropriate to hold that  because in normal times the Constitution requires the Executive  to obey  the laws  made by  the  Legislature, therefore. Article  359(1) which  is an   emergency measure, must be  construed  consistently  with  that  position.  The argument of  basic feature  is wrong  for yet another reason that Art.  359(1) does  ’not provide  that the  Executive is free to  disobey the laws made by the Legislature. To permit a challenge  in a  court of  law to  an order  of detention, which is  an Executive  action, on the ground that the order violates ar  Fundamental Right mentioned in the Presidential order, is  to permit  the detenu  to enforce  a  Fundamental Right during  emergency in  manner plainly  contrary to Art. 359(1). [388 E-H, 389 A]      All executive action which operates to the prejudice of any person  must have  the authority  of law  to support it. Art. 358 does not purport to invest the State with arbitrary authority to  take action  to the  prejudice of citizens and other. It  provides that   so  long as  the Proclamation  of Emergency subsists  laws may be enacted and executive action may be  taken ill  pursuance of  such  laws,  which  if  the provisions  of  Art.  19  were  operative  would  have  been invalid.  Article   359(1)  bars   the  enforcement  of  any Fundamental  Right  mentioned  in  the  Presidential  order, thereby rendering  it incompetent for any person to complain of  its   violation,  whether    the  violation  is  by  the Legislature or by the Executive.                                      [389 H, 390 A, 391 E-F]      State of Madhya Pradesh and Anr. v. Thakur Bharat Singh [1967] 2  SCR 454; District Collector of Hyderabad & ors. v. M/s. Ibrahim  & Co. etc. [1970] 3 SCR 498; Bennett Coleman & Co. and ors. v. Union of India & ors. [1973] 833SCI/76 194 2 SCR  757, 773,  775 and  Shree Meenakshi     Mills Ltd. v. Union of  India,  [1974]  2  SCR  398,  405,  406  and  428, distinguished.      The Rule  of Law  rejects the  conception of  the  dual State in which governmental action is placed in a privileged position of  immunity from control be. law. Such a notion is foreign to our basic constitutional concepts. [392 F]      Chief     Settlement     Commissioner,   Rehabilitation Department, Punjab  and ors  v. Om   Parkash & ors. [1968] 3 SCR 655 660-661 and Eshugbayi Eleka v. Officer Administering the Government of Nigeria [1931] AC 662 670. distinguished.      The Rule  of Law  argument  like  the  "basic  feature" argument is  intractable. Emergency  provisions contained in Part XVIII of the Constitution which are designed to protect the security  of the  State are  as important  as any  other provision. Of  the Constitution.  The Rule  of Law during an emergency, is as one finds it in the provisions contained in Chapter  XVIII  of  the  Constitution.  There  cannot  be  a brooding  and   omnipotent  Rule  of  Law  drowning  in  its effervescence the  emergency provisions of the Constitution. [393-B-D]

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    Article  359(1)   neither  compels   nor  condones  the breaches  by   the  executive   of  the  laws  made  by  the Legislature. Such  condonation is  the function of an act of indemnity. [393 G]      The object  of empowering  the President  to  issue  an order under  Alt. 359(1)  suspending the  enforcement of the right to  personal liberty  conferred by  Part  III  of  the Constitution cannot  be to save all other rights to personal liberty except  the one  conferred by  Part III  which seems totally devoid  of meaning  and purpose.  Their  is  nothing peculiar in  the content  of the  right to  personal liberty conferred by  Part  III  so  that  the  Constitution  should provide only for the suspension of the right to enforce that particular  kind  of  right  leaving  all  other  rights  to personal liberty  intact and  untouched. This purpose cannot ever be achieved by interpreting Article 359(1) to mean that every right  to personal  liberty shall  be enforceable  and every proceeding  involving the  enforcement of  such  right shall continue  during the emergency except to the extent to which  the   right  is   conferred  by   Part  III   of  the Constitution. The existence of the right to personal liberty in the  pre constitution  period was  surely  known  to  the makers of the Constitution. [395 H, 396 A-D]      The right  to personal  liberty is  the  right  of  the individual to  personal freedom,  nothing more  and  nothing less.  That  right  along  with  certain  other  rights  was elevated to  the status of a Fundamental Right in order that it may  not be  tinkered with  and  in  order  that  a  mere majority should  not be  able to  trample  over  it  Article 359(1) enables the President to suspend the enforcement even of the  right which  were sanctified  by being lifted out of the common morass of human rights. If the enforcement of the Fundamental Rights  can be  suspended during an emergency it is hard  to accept  that the right to enforce no Fundamental Rights relating  to the  same subject  matter should  remain alive.                                              [396 G-H 397 A]      The words  "conferred by  Part Ill’ which occur in Art. 359(1) are  not intended  to  exclude  or  except  from  the purview of the Presidential Order rights of the same variety or kind  as are  mentioned in  Part III  but which  were  in existence prior  to the Constitution or can be said to be in existence in  the post  Constitution  era.  apart  from  the Constitution. The words "conferred by Part III are used only in order  to identify  the particular rights the enforcement of which  can be suspended by tho President and not in order to impose  a limitation the power of the President so as  to put those rights which exist or which existed apart from the constitution beyond  the reach  of that  power. It therefore does not  make any  difference whether any right to personal liberty was  in existence  prior to  the  enactment  of  the Constitution either  by way  of a  natural  right  statutory right common law right or a right available under the law of port. Whatever  may be  the source of the right and whatever may be its justification. the right in essence and substance is the right to personal liberty. That 195 right having been included in Part III, its enforcement will stand suspended  if   it is  mentioned in  the  Presidential order issued under Article 359(1).                                            [397 E-H 398 A-C]      The rights  conferred by  Art.  21  and  19  cannot  be treated as  mutually exclusive  But the  suspension  of  the right to  enforce the  right of  personal liberty  means the suspension of  that right  wherever it  is found  unless its

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content is totally different as from one Article to another. The right  conferred by  Article 21 is only a description of the right  of personal  liberty in  older to  facilitate its exact identification and such a description cannot limit the operation of   the  Presidential order  to those  cases only where the right to personal liberty is claimed under Article 21. [398 F-G]      Rustom Cavasajee  Cooper v. Union of India [1970] 3 SCR 530, 578, referred to.      The  circumstance   that  The  pre-constitution  rights continued in force after the enchantment of the Constitution in view  of Art.  372 does  not make  any difference to this position  because  even  assuming  that  certain  rights  to personal  liberty  existed  before    the  Constitution  and continued thereafter  as they  were  not  repugnant  to  any provision  of   the  Constitution  all  rights  to  personal liberty. having  the same  content as the right conferred by Art. 21  would fall  within the mischief to the Presidential order. [398 C-H, 399 A]      The theory  of eclipse has no application to such cases because that theory applies only when a pre-Constitution law becomes devoid  of legal  force  on  the  enactment  of  the Constitution by reason of its repugnancy to any provision of the Constitution. Such laws are not void but they are  under an eclipse   so  long as  the  repugnancy  lasts.  When  the repugnancy is  removed the  eclipse also  is removed and the law becomes valid. [399 A-B]      As regards the doctrine of merger, every prior right to personal liberty  merged in  the right  to personal  liberty conferred by  Part III.  But   whether it  merged or not, it cannot survive  the declaration  of suspension  if the  true effect of  the Presidential  order is  the suspension of the right to enforce all and every right to personal liberty. In that view,  it would  also make  no difference  whether  the right to  personal liberty  arises from a statute or from  a contract or  from a  constitutional provision  contained  in some Part other than Part III. [399 B-C]      Article 361(3)  speaks of  a process  for the arrest or imprisonment  of   a  Governor   issuing  from   any  court. Fundamental Rights  can be  exercised  as  against  judicial orders but  the circumstances  in which  such a  Process may come to  be issued.  if at  all, may  conceivably affect the decision of the question whether a Presidential Order issued under Article  359(1) can  bar the  remedy of  an  aggrieved Governor.[400 B-C]      A failure  to  comply  with  Article  256  may  attract serious consequences  but no  court is likely to entertain a grievance at  the instance of a  private party that Art. 256 has not been complied with by a State Government. [400 D]      [As regards  the claim to personal liberty founded on a challenge to  an order on the ground of excessive delegation His Lordship  preferred to  express no  firm opinion though, the greater probability is that such a challenge may tail in face of  a Presidential  order of  the kind  which has. been passed in the instant case. [400 D-E]      The  existence  of  common  law  rights  prior  to  the Constitution  will   not  curtail   the  operation   of  the Presidential order  by  excepting.  those  rights  from  the purview of the order. [400 E]      Dhirubha Devisingh  Gohil v. The State of Bombay [1955] 1 SCR  and Makhan  Singh v State of Punjab [1964] 4 SCR 797, 818-819, applied.      The Presidential  order dated  June 27,  1975, does not contain any  clause like the one in the order dated November 3, 1962  Article 359(1) is only an

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196 enabling provision  and the  validity of  a plea  cannot  be tested with  reference to  that Article. The right to move a court for  the enforcement  of the  rights conferred by Part III  is  not  taken  away  by  Article  359(1).  It  is  the Presidential  order   passed  in  pursuance  of  the  powers conferred by that Article by which such a consequence can be brought about. The Presidential order in the instant case is not subject to the preconditions that the detenu should have been deprived  of his  right under  any particular  Act  and therefor, there  is no  scope for  the enquiry  whether  the order is  consistent or  in conformity  with any  particular Act. [405 B-H, 406 A, 407 B-C]      Makhan Singh  v. State  of Punjab [1964] 4 SCR 797; Dr. Ram Manohar  Lohia v.  State of  Bihar [1966]  1 SCR 709. K. Anandan Nambiar  and Anr.  v. Chief  Security Government  of Madras &  ors. [1966]  2 SCR  406. State  of Maharashtra  v. Prabhakar Pandurang  Sangzgiri &  Anr.  [1966]  1  SCR  702, discussed and distinguished.      A mala  fide exercise  of power  does   not necessarily imply any  moral  turpitude  and  may  only  mean  that  the statutory power  is exercised  for purposes Other than those for which  the power  was intended by law to be exercise. In view of the fact that an unconditional Presidential order of the present  kind effects the locus standi of the petitioner to move  any  court  for  the  enforcement  of  any  of  his Fundamental Rights  mentioned in  the order, it would not be open to  him to  show that  the  statutory  power  has  been exercised for  a purpose  other than  the one duly appointed under the  law. So long as the statutory prescription can be seen on  the face of the order to have been complied with no further inquiry  is permissible  as to  whether the order is vitiated by legal mala fides. [409 E-F]      Makhan Singh  v. State  of Punjab [1964] 4 SCR 797; Jai Chand Lall  Sethia v.  State of  West Bengal  & ors.  [1966] Supp. SCR  464 and Durgadas Shirali v. Union of India & ors. [1966] 2 SCR 573, referred to.      As regards  mala fides  in the sense of malice in fact, the same  position must  hold good  because the Presidential order operates  as a  blanket ban  on any and every judicial inquisition into  the validity of the detention order. If in any given  ease an  order of  detention appears  on the very face of  it to  be actuated by an ulterior motive, the court would have  jurisdiction to set it aside because no judicial inquiry of  any sort  is required to be undertaken in such a case. But,  short of  such ex facie vitiation, any challenge to a  detention order  on the around of actual mala fides is also excluded  under the  Presidential order  dated June 27, 1975. 1407 G-H, 408 A-B]      Section 16A(9)  is not  unconstitutional on  the ground that  it   constitutions  an   encroachment  on   the   writ jurisdiction of  the High  Court and  Art. 226.  There is no warrant for  reading down  that section  so as  to allow the courts to  inspect the  relevant files,  to the exclusion of all other parties.                                        [409 D, 411 F] 414 D]      Section 16A  (9) is  in aid of the constitutional power conferred by Art. 359(1) and further effectuates the purpose of the  Presidential order issued under that Article. If so, it cannot be declared unconstitutional. [410 A]      The rule  enunciated in  s. 16A(9) is a genuine rule of evidence. [410 B]      A. K.  Gopalan v.  State of  Madras [1950]  SCR 88  and Mohd. Maqbool  Damnoo v.  State of  Jammu & Kashmir [1972] 2 SCR 1014, distinguished.

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      The  principles of  res judicata  and  estoppel,  the conclusive presumptions  of law  and various  provisions  of substantive law  deny a  free play to courts in the exercise of  their  jurisdiction.  These  are  not  for  that  reason unconstitutional qua  the High  Court’s  jurisdiction  under Art. 226. [410 F]      The limits  of judicial  review have to be co-extensive and commensurate  with the  right of  an aggrieved person to complain of  the invasion  of  his  rights.  Section  16A(9) cannot be  said to  shut out  an inquiry  which is otherwise within the jurisdiction of the High Court to make. [411 B] 197      Section   18 does not suffer from the vice of excessive delegation and is a  valid piece of legislation. [414 D]      That section  only declares  what was the true position prior to  its enactment  on June  25, 1975. The amendment of section 18  by the  substitution of the words "in respect of whom an  order is  made or purported to be made under s. 3", in place  of the  words "detained  under this Act", does not render the  section open  to a  challenge on  the ground  of excessive delegation.  The words "purported to be made" have been inserted  in order  to obviate the challenging that the detention is  not in  strict conformity with the Act. Such a challenge is  even otherwise  barred under  the Presidential order. The  object of  he said provision is not to encourage the passing  of lawless  orders of  detention but to protect during emergency  orders which may happen lo be in less Than absolute  conformity   with  the   Maintenance  of  Internal Security Act, 1971.                                                    [412 B-C]      His Holiness  Kesvananda  Bharati  Sripadagalarvaru  v. State of Kerala [1973] Supp. SCR I and Makhan Singh. v State of Punjab [1964] 4 SCR   797  referred.      A  jurisdiction   of  suspicion  is  not  a  forum  for objectivity. The only argument which the court can entertain is whether the authority which passed the order of detention is duly empowered to pass it, whether the detenu is properly identified and  whether on the face of its order, the stated purpose of detention is within the terms of law. [414 E-F]      Zamora’s case  [1916] (2) AC 77; Rex v. Halliday [1917] AC 260,  271. liversidge  v. Sir John Anderson [1942] AC 206 and Greene v. Secretary of State [1942] AC 284, referred to.      No judgment  can be  read as  if it  is a  statute. The generality of  the expressions  which  may  be  found  in  a judgment are  not intended  to be  expositions of  the who’s law, but  are governed and qualified by the particular facts of the  case in   which such expressions are to be found. It is not  a profitable  task to  extract a  sentence here  and there from  a judgment  and to  build upon  it because . the essence  of   the  decision  is  its  ratio  and  not  every observation found therein. [401 C-E]      Quinn v.  Leatham, [1901]  AC 495,  506 auld  State  of Orissa v. Sudhansu Sekhar Misra & Ors.[1968] 2 SCR 154, 163, reiterated. Per P. N. Bhagwati, J.      The  Presidential  order  dated  June  27,  1975,  bars maintainability of  a petition  for a  writ of  habes corpus when an  order of detention is challenged on the ground that it is  vitiated by mala fides, legal, factual or is based on extraneous considerations  or is not under the Act or is not in compliance with it. [477 B-C]      The suspension  of the  privilege of  the writ does not legalise   what  is  done  while  it  continues:  it  merely suspends for the time. being the remedy of the writ. [461 A- B]

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    The words "the right to move any court" are wide enough to include  all claims  made by  citizens in  any  court  of competent jurisdiction  where it  shown that the said claims cannot be effectively adjudicate upon. without examining the question as to whether the citizen is, in substance, seeking to enforce  any of  the specified  Fundamental Rights. There can be no doubt that in view of the Presidential order which mentions Art.  21, the detenus would have no locus standi to maintain the  writ petitions  if it  could be shown that the writ petitions  were  for  the  enforcement  of  the  rights conferred by Art. 21. [424 C-E]      Makhan Singh  v. State  of Punjab  [1964]  4  SCR  797, followed.      When a  Presidential order  is issued  under Art.  353, clause  (1),   the  Fundamental   Right  mentioned   in  the Presidential order  is suspended  so that the restriction on the power of the executive or the legislature imposed by the Fundamental Right  is lifted while the Presidential order is in operation and 198 the executive or the legislature  is free to make any law or to make  any action  which it  would, but for the provisions contained in  Part 111, be competent to make or to take. the words ’but  for the  provisions contained in that part" that is,  but   for  the   Fundamental  Rights,  mean  "if    the Fundamental Rights  were not  there in the Constitution, the executive being limited by law would still be unable to take any action  to the prejudice of a person except by authority of law and in conformity with or in accordance with law and, therefore, even  the Presidential  order mentions  Art.  21, clause (1A)  of Art.  359 Would  not enable the executive to deprive a  person of  his Personal liberty  without sanction of law  and except  in conformity with or in accordance with law. It’  an order  or dentention  is made  by the executive without the  authority of  law it  would be  invalid and its invalidity would  not be  cured by  clause (IA)  or Art. 359 because that  clause does not protect executive action taken without lawful  authority. An  unlawful order  of  detention would not  be protected  from challenge  under- Art.  21  by reason of  clause (IA)  of Art.  359 and the detenu would be entitled to complain of such unlawful detention as being, in violation of’ Art. 21 except in so far as his right tor move the court  for that  purpose  may be held to have been taken away by clause (1) of Art. 359. [427 C-H]      State of  Madhya Pradesh v Thakur Bharat Singh [1967] 2 SCR 454;  District Collector  of Hyderabad  v. M/s Ibrahim & Co. [1970]  3 SCR  498; Bennett  Coleman &  Co. v.  Union of India [1973]  2 SCR  757 and  Shree Meenakshi  Mills Ltd. v. Union of India [1974] 2 SCR 398, applied.      Even though  a Presidential  Order issued  under clause (1) of  Art, 359 mentions  Art. 21, where it is found that a detention has not been made in pursuance of lawful authority or in other words, the detention is without the authority of law, whether  by reason  of there  being no law at all or by reason of  the law  under. which the detention is made being void, clause  (1A) of  Art, 359   would  not protect it from challenge under  Art. 21  and it  would be  in conflict with that Article [429 H. 430 A] ,      The words  "rights, conferred  by Part  III" cannot  be read in isolation nor can  they be construed by reference to theoretical or  doctrinaire considerations.  ’They  must  be read in the context of the provisions enacted in Part 111 in order. to  determine what  are the  rights conferred  by the provisions in  that Part, It is true that Art, 21 is couched in negative  language. It  is not  uncommon  in  legislative

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practice to  use negative  language for  conferring a right. That is often done for lending greater emphasis and strength to  the   legislative  enactment.  Article  21  confers  the Fundamental Right of personal liberty. [430 F-H]      Punjab Province  v. Daulat  Singh 73 Indian Appeals 59; Basheshar Nath  v. The  Commissioner of  Income Tax  Delhi & Rajasthan [1959]  Supp. (1)  SCR  529;  State  of  Bihar  v. Maharajidhiraj Kameshwar  Singh of  Derbhanga &  Ors. [1952] SCR 889  at p.988;  P.D. Shamdasani v. Central Bank of India Ltd. [1952] SCR 391 AND R.C. Cooper v. Union of India [1970] 3 SCR 530 referred to      If Art.  21 were construed as not conferring a right to personal liberty,  then there  would be no Fundamental Right conferred by Art. 21 and even if a person is deprived of his personal liberty  otherwise  than  in  accordance  with  the procedure established  by law  and there  is infringement of Art .21,  such person  would not  be entitled  to  move  the Supreme Court for a writ of habeas corpus under Art. 32, for that Article  is  available  only  for  enforcement  of  the rights. conferred  by Part  III. That  would be  a  starting consequence, as  it would  deprive the  Supreme Court  of  a wholesome jurisdiction to protect the personal liberty of an individual  against   illegal  detention,   resulting  in  a departure from  the well  settled constructional position of Art. 21. [432 B-D]      No attribute  of personal  liberty can  be regarded  as having been calved out of Art. 21. That Article protects all attributes of  persona; liberty  against,  executive  action which is  not supported  by law.  When a person is detained. there is  deprivation of personal liberty within the meaning of Art. 21. 1433 A-BI      Kharak Singh  v. State of U.P. & Ors. [1964] 1 SCR 332. referred to 199      The protection  under Art.  21 is  only  against  State action  and   not  against    private  individuals  and  the protection, it  secures, it  is  a  limited  one.  The  only safeguard enacted  by Art.  21 is  that a  person cannot  be deprived  of   his  persona   liberty  except  according  to procedure prescribed  by "State  made" law.  It is  clear on plain natural  construction of  its language  that  Art.  21 imports  two  requirements:  first,  there  must  be  a  law authorising deprivation  of personal  liberty and  secondly, such law  must prescribe  a procedure. The first requirement is indeed  implicit  in  the  phrase  "except  according  to procedure prescribed  by  law".  When  a  law  prescribes  a procedure for  depriving a  person of  personal liberty,  it must a  fortiori authorise  such  deprivation.  Article  21, thus,  provides  both  substantive  as  well  as  procedural safeguards. Two  other ingredients of Art. 21 are that there must not  only be  a law authorising deprivation of personal liberty there  must also be a procedure prescribed by law or in other  words   law must  prescribe a procedure. [433-C-F; 434 A-C,H: 435 B]      P. D. Shamdasani v. Central Bank of India Ltd. [1952] 2 SCR 391;  Smt. Vidya  Verma v.  Dr. Shiv Narain [1995] 2 SCR 983 and  A. K.  Gopalan v.  State of  Madras [1950]  SCR 88, followed.      Article 21,  operates not  merely as  a restriction  on executive action  against deprivation  of’ personal  liberty without authority  of law, but it also enacts d check on the legislature by  insisting that  the  law,  which  authorises depravation, must  establish a procedure. What the procedure should be  is not  laid down in this Article, but there must be some  procedure and  at the least, it must conform to the

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minimal requirements of Art. 22. "Law" within the meaning of Art. 21  must be a valid law and’ not only must it be within the legislative  competence of  the legislature enacting it, but it  must also not be repugnant to any of the Fundamental Rights enumerated in Part III. [435 C-D]      Shambhu Nath Sarkar v. The State of West Bengal  [1974] 1 SCR  1; and  Khudiram Das  v.   The State of West Bengal & ors. [1975] 2 SCR 832, referred      The constitutional principle in Eshugabayi E eko v. The officer Administrating  the Government  of Nigeria  AIR 1931 PC’ 248  has been accepted by the courts in India as part of the  law   of  the  land.  In  our  country,  even  in  pre- Constitution days,  the executive  was a  limited executive, that is,  an executive  limited by law and it could act only in accordance with law. [438 B, 439 A]      Liversidge v.  Sit. John  Anderson  [1942]  2  AC  206, Vimlabai Deshpande v. Emperor AIR 1945 Nag. 8. Jitenderanath Ghosh v.  The Chief  Secretary to  the Government of Bengal, ILR 60 Cal. 364 at 377; In re: Banwarilal Roy 48 Cal. Weekly Notes 766  at 780;  Secretary of  State for  India  v.  Hari Bhanji  (1882)  ILR  5  Mad.  373;  Province  of  Bombay  v. Khushaldas Advani  [1950] SCR  621 and P. K. Tare v. Emperor AIR 1943 Nag. 26, referred.      Even prior  the  Constitution, the principle of rule of law that  the executive   cannot  act to  the prejudice of a person without  the authority  of law was recognised as part of the law of the land and was uniformly administered by the courts. It was, clearly "law" in force"  and, ordinarily, by reason of  Art. 372  it would have continued to subsist as a distinct and  separate principle  of law  hr even  after the commencement of  the Constitution,  until some  aspects  of’ this principle  of Law  were expressly  recognised and given constitutional  embodiment  in  different  Articles  of  the Constitution. [439 B-C]      When this  principle of  rule of law that the executive cannot deprive  a person  of his liberty except by authority of law,  is recognised  and embodied  as a Fundamental light and enacted as such in Art. 21, it cannot continue to have a distinct and  separate existence,  independently  and  apart from this  Article in which it has been given constitutional vesture,  unless   it  were  also  enacted  as  a  statutory principle by  some positive  law of  the  State.  It  cannot continue in  force under  Art.  372  when  it  is  expressly recognised and  embodied as  a Fundamental  Right in Art. 21 and   finds  a  place  in  the  express  provisions  of  the Constitution  When  the  Constitution  makers  have  clearly intended 200 that this  right should be subject to the limitation imposed by Art.  359, clause  (1) and  (1A), it would be contrary to all canons  of construction  to hold  that  the  same  right continues  to   exist  independently,   but  free  from  the limitation imposed by Art. 359, clauses (1) and (1A)  Such a construction would  defeat the  object of  the  constitution makers in  imposing the  limitation under  Art. 359, clauses (1) and  (1A) and  make a  mockery of  that limitation.  The Presidential order  would in  such a case become meaningless and ineffectual. [439 F-H, 440 A-C]      The only  way in  which meaning and effect can be given to the  Presidential order suspending the enforcement of the right of  personal liberty  guaranteed under Art. 21 is that the principle  of Rule  of Law, on what the executive cannot interfere with the personal liberty of any person except by. authority of  law, is  enacted in  Art. 21  and it  does not exist as  a distinct  and separate  principle  conferring  a

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right of  personal liberty independently and apart from that Article. Consequently,  when the enforcement of the right of personnel liberty  conferred by  Art. 21  is suspended  by a Presidential  order   the  detenu   cannot  circumvent   the Presidential  order   and  challenge  the  legality  of  his deletion by falling   back on the supposed right of personal liberty based on the principle of Rule of Law. [440F-H]      The executive  is plainly  and indubitably subordinated to the  law and  it cannot  flout the mandate of the law but must act in accordance with the law. [441-B]      Eastern Trust Company v. Mckenzie Mann. & Co. [1915] AC 750; Rai  Sahib Ram  Jawaya Kapur  v. The  State  of  Punjab [1955] 2  SCR 225  and State  of Madhya  Pradesh  v.  Thakur Bharat Singh [1967] 2 SCR 454 referred to      The Presidential  orders issued  under Art.  359 clause (1) do  not give  any power  to the  executive to  alter  or suspend or  flout the  law nor do they enlarge the power. Of the executive  so as  to permit  it to  go  beyond  what  is sanctioned by  law. As soon as the emergency comes to an end and the  Presidential order  ceases  to  be  operative,  the unlawful action  of the executive becomes actionable and the citizen is  entitled to  challenge it  by  moving a court of law. [161 A-C]      Whilst a  Presidential Order  issued  under  Art.  359, clause  (1)  is  in  operation,  the  Rule  of  Law  is  not obliterated and  it continues  to operate in all its vigour. The executive  is bound  to observe  and obey the law and it cannot ignore  or disregard  it. If  the executive commits a breach of  the law  its action  would be unlawful but merely the remedy  would be  temporarily baned  where  it  involves enforcement of  any of  the Fundamental  Rights specified in the Presidential order. [461 C-D]      When the right of personal liberty based on the Rule of Law which  existed immediately  prior to the Commencement of the Constitution   has been enacted in the Constitution as a Fundamental Right  in Art.  21 with the limitation that when there   is a Proclamation of Emergency, the President may by order under  Art. 359,  clause (1)  suspend its enforcement, that right  of personal  liberty based  on the  Rule of  law cannot continue to exist as a distinct and independent right free from the limitation as to enforcement contained in Art. 359 clause  (1). It  would be meaningless and futile for the Constitution-makers  to  have  imposed  this  limitation  in regard to  enforcement of  the  right  of  personal  liberty guaranteed by  Art. 21,  if the  detenu could with impunity, disregard such  limitation and  fall back  on the  right  of personal liberty based on the Rule of Law. [445 E-G]      Attorney General  v. De Keyser’s Royal Hotel, [1920] AC 508, discussed.      Dhirubha Devisingh  Gohil v. The State of Bombay [1955] I SCR 691, followed.      On an  application of the maxim expressum facit cessare tacitum. that  is what  is expressed  makes what  is  silent cease-a principle of logic and common 201 sense and  not merely  a technical  rule of construction-the express provision   in  Art. 21  that  no  person  shall  be deprived of his life or personal liberty except according to procedure prescribed  by  law  will  necessarily  exclude  a provision to  the same effect to be gathered or implied from the other provisions of the Constitution. [447 D-E, 448 D]      Shankara Rao  Badami v.  State of Mysore [1969] 3 SCR 1 and State  (Walsh and  ors.) v.  Lennon and  ors. 1942 Irish Report. of 112, applied.      The contention  that the  principle of Rule of Law that

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the executive cannot act to the prejudice of a person except by authority  of law  continues to  exist as  a distinct and independent Principle unaffected inter alia by the enactment of Art. 21, is not correct. [451 Al      State of Madhya Pradesh v. Thakur Bharat Singh [19671 2 SCR 454; District Collector, Hyderabad v. M/s. Ibrahim & Co. [1970] 3  SCR 498;  Bennet Coleman  & Co.  v. Union of India [1973] 2  SCR 757;  Shree Meenakshi  Mills Ltd.  v. Union of India &  ors. [1914]  2 SCR 398; Bidi Supply Co. v. Union of India [1956]  SCR 267;  Bishan Das  & Ors. v State of Punjab [1962] 2  SCR 69;  State of  Bihar v. Kameshwar Prasad Verma [1963]  2   SCR  183;   Eshugbayi  Eleko   v.  The   officer Administering the  Government of  Nigeria AIR  1931 PC   and Makhan  Singh   V.  Sate   of  Punjab   [1964]  4  SCR  797, distinguished.      The words  ’any court in Article 21 must be given their plain grammatical  meaning and must be construed to mean any court of  competent jurisdiction  which  would  include  the Supreme Court and the High Courts before which the specified rights in  Art. 359  clause (  1 )  can be  enforced by  the citizens.[454-Al      Makhan Singh  V. State  of Punjab  [1964]  4  SCR  737, followed.      When the  Presidential order  is without any condition, in a  detenu contends  that the  order of detention has been made mala  fide or  that it  has been  passed by  a delegate outside the authority conformed on him under the Act or that it has  been exercised  inconsistently with  the  conditions prescribed in  that behalf, that is, it is not in accordance with the  Provisions of  law, such a plea would be barred at the threshold by the Presidential order. [458 B-C]      Quinn &  Leathen [1901]  AC 495,  State  of  Orissa  v. Sudhansu  Sekhar  Misra  [1968]  2  SCR  154.  Makhan  Singh Tarsikka v.  ’The State  of Punjab  [1966]  2  SCR  797;  A. Nambiar v.  Chief Secretary  [1966] 2  SCR 406  and Sate  of Maharashtra v.  Prabhakar Pandurang  Sangzgiri [1966]  1 SCR 702, distinguished.      There is  no scope  for the contention that even if the enforcement of the Fundamental Right conferred by Art. 21 is suspended by  the Presidential  order, the  detenu can still enforce a  supposed natural  right of  personal liberty in a court of law. [459 D]      His Holiness  Kesavananda  Bharati  Sripadagalavaru  v. State of  Kerala [1973] Supp. SCR 1 and Golak Nath & Ors. v. State of Punjab [1967] 2 SCR 762, referred to.      If the positive law of the State degrees that no person shall be  deprived of  his personal liberty except according to the  procedure described  by law, the enforcement of such statutory right  would not  be barred  by  the  Presidential order. But,  there is  no legislation  in our  country which confers the  right of  personal liberty  by  providing  that there shall  be no  deprivation of  it except  in accordance with law.  (in the  contrary, s.  18 of  the Maintenance  of Internal Security  Act,  1971,  enacts  that  no  person  in respect of whom an order of detention is made or purposed to be made under s. 3 shall have any  right to personal liberty by virtue  of natural  law or  common law, if any. h Because the Indian  Penal Code  in s.  342 makes  it penal  to would fully  confine  any  person  and  the  offence  of  wrongful confinement postulates  that no one shall be deprived of his personal liberty except by authority of law, it cannot 202 be said on that account that s. 342 of the Indian Penal Code confers a right of personal liberty.. The utmost that can be said is  that this  section proceed  on a recognition of the

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right of personal liberty enacted in Art. 21 and makes it an offence to  wrongfully confine  a person  in breach  of  the right conferred  by that  constitutional provision [459 E-H, 460 A]      The words  four any  other purpose  in Art. 226 greatly enlarge the  jurisdiction of  the High  Court and  the  High Court can  issue a  writ of  habeas corpus if it finals that the intention  of a  person is  illegal. It is not necessary for this  purpose that  the court  should be  moved  by  the detenu. It  is sufficient  if it  is  moved  by  any  person affected by  the order of intention. When it is so moved and it examines  the legality  of the order of detention it does not enforce the right of personal liberty of the detenu, but it merely  keeps the  executive within the bounds of law and enforces the  principle of  legality. The  words . any other purpose  cannot   be  availed   of  for   the   purpose   of circumventing the constitutional inhibition flowing from the Presidential order. [460 B-G]      Article 359  clause  (1)  and  the  Presidential  order issued under  it do  not have  the effect of making unlawful actions of the executive lawful. [461 F-G]      When a  person takes  proceedings  under  the  Code  of Criminal  Procedure   in  connection  with  the  offence  of wrongful confinement  or murder  or launches  of prosecution for such  offence, he  cannot be  said to  be enforcing  the fundamental Right  of the  detenu or  the murdered man under Art. 21  so as to attract the inhibition of the Presidential order. [461 F-G]      An  application   seeking  to   enforce   a   statutory obligation imposed  on the  police officer  and a  statutory right created  in favour  of an  arrested person by s. 57 of the Criminal  Procedure Code  would not  be barred,  because what is suspended by a Presidential Order specifying Art. 21 is the  right to  move the  court  for  enforcement  of  the Fundamental Right  conferred by  that article  and  not  the right to  move the  court for  enforcement of  the statutory right to be released granted under s. 57, Cr. P C..[462 G]      If a  positive legal  right is conferred on a person by legislation and  he seeks to enforce it in a court, it would not be  within the inhibition of a Presidential Order issued under Art. 359, clause (1). [463 G-H]      This does  not mean that whenever a petition for a writ of habeas  corpus comes before the court it must be rejected straightaway without  even looking  at the averments made in it. The  court would  have to  consider where the bar of the Presidential order  is attracted  and for  that purpose  the court would  have to  the whether  the order of detention is one made  by an  authority empowered  to pass  such an order under the  Act. If  it is not, it would not be State action. and the  petition would  not be  one for  enforcement of the right confirmed by Art. 21. [463 G-H, 464 A]      Once it is held that the obligation of the executive is not a  deprive a  person of  his personal  liberty except in accordance with  law, is to be found only an Art. 21 and no- where-else it  must follow  necessarily that  in challenging the legality  of the detention, what the applicant claims is that there.  is, ,  in fact  fact, by  the executive  of the right of  personal liberty  conferred by  Art  21  and  that immediately attracts  the applicability  of the Presidential order. [460-D-E]      It is  the basic  characteristic and essence of martial law that during the time that it is in force, the individual cannot enforce his right to life and liberty by resorting to judicial process  and the  courts cannot  issue the  writ of habeas corpus or pass any suitable orders [442 G]

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    John Allen’s  case (1921) 2 Irish Reports 241, referred to:      Merely by  declaring martial  law would  not by  itself deprive the  courts of the power to issue the writ of habeas corpus or  other process  for the protection of the right of the individual to life and liberty. [443 A] 203      The declaration  of martial  law,  which  is  not  even expressly provided in  the Constitution, cannot override the provisions of  the Articles conferring the right to life and liberty as also of Articles 32 an l 226 and unless the right of an  individuals to move the courts for enforcement of the right to  life and liberty can be suspended or taken away by or under  an express  provision  of  the  Constitution,  the individual would  be entitled  to enforce  the right to life and liberty under Art. 32 or Art. 226 or by resorting to the ordinary process w. even during martial law. [443 A-C]      Article 34 clearly postulates that during the time that material law  is in   force no judicial process can issue to examine  the  legality  of  an  act  done  by  the  military authorities  or   the  executive   in  connection  with  the maintenance of restoration or order. [443 E-F]      During the  martial law,  the courts  cannot and should not have  the power to examine the legality of the action of the military  authorities or  the executive  on  any  ground whatsoever, including, the ground of mala fides. But, if the courts are  to  be  prevented  from  exercising  such  power during, martial  law the situation can be brought about only by a  Presidential order  issued under C. Act 359 clause (i) and in  no other  way, and the Presidential Order. in so far as it  suspends the  enforcement of  the right  of  personal liberty confirmed  under Art.  21 must be constructed to bar challenge  to   the  legality  of  detention  in  am,  court including the  Supreme Court  and the High Courts whilst the Presidential Order is in operation, [444 A-C]      Ex parte  Milligan (1866) 4 Wallace 2; Moyer v. Peabody (1909) 212  US 76,  and Duncan   v.  Kohanmeku (1945) 327 US 304, referred to.      There are  two rights  which the  detenu  has  in  this connection: one  is the  Fundamental Right conferred by Art. 22,  clause  (5)  and  the  other  is  the  statutory  right conferred by  s. 8.  Though the content of both these rights is the  same, they  have distinct  and independent existence and merely  because enforcement of one is suspended, it does not mean that the other also cannot be enforced. [463 B-C]      The theory  of reflection  is clearly erroneous. If the right  conferred  under  s.  8  were  a  reflection  of  the Fundamental Right  conferred by Art. 22, clause (5) which is the  object   reflected  must   necessarily  result  in  the effacement of  the  right  under  s.  8  which  is  said  to constitute the  reflection. But  even if  Art. 22 clause (5) were deleted  from the Constitution, s. 8 would still remain on the  statute book  until repealed by the legislature. The Presidential Order  would not  therefore, bar enforcement of the right conferred by s. 8. [463 C-D]      Fathima Beebi  v. M.  K. Ravindranathan (1975) Crl. LJ. 1164, over-ruled.      It is  true that  sub-sec. (9)  (a) of  s. 16A does not specifically refer  to any  court. But,  there  is  inherent evidence in  the sub-section  itself  to  show  that  it  is intended to  prevent disclosure of such grounds, information and materials before a court. There is clearly an echo of s. 123 of  the Indian Evidence Act. Sub-section (9) of s. It is must also  be held  to  be  designed  to  achieve  the  same intention as  prohibiting disclosure  even to  a court. Sub-

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section (9) (a) of S. 16A cannot, therefore, be read down so as to imply an exception in favour of disclosure to a court. [469 D, F]      Khudiram Das  v. The State of West Bengal & Ors. [1375] ‘ SCR  832; ,  Lee v.  Burrel 170  English Reports  1402 and Liversidge v. Sir John Anderson [1942] AC 206. referred to.      There can be no doubt that Art. 226 is a constitutional provision and  it empowers the High Court to issue a writ of habeas corpus  for enforcement  of the  Fundamental Right by Art. 21  and also for any other purpose. The High Court has. therefore, constitutional  power to  examine the Legality of detention and  for that  purpose to  inquire  and  determine whether the  detention is  in accordance with the provisions of law.  The constitutional  Power cannot  be taken  away or abridged  by  a  legislative  enactment.  If  there  is  any legislative. 204 provision which  obstructs or  retards the  exercise of this constitutional power  it would  be void.  It is,  therefore, clear that if it can be shown that sub section (9) (a) of s. 16A abridges or whitles down the constitutional power of the High Court  under Art.  226  or  obstructs  or  retards  its exercise, it  would be  void as  being in conflict with Art. 226. If  there is  a legislative  provision which  prohibits disclosure of  the grounds,  information  and  materials  on which the order of detention is based and prevents the court from calling for the production of such grounds, information and materials,  it would obstruct and retard the exercise of the constitutional  power of  the High  Court under Art. 226 and would  be void  as offending that Article. [470 C D, 471 A-B, E-F]      Hari Vishnu Kamath v. Syed Ahmad  Ishaque & Ors. [1955] 1 SCR  1104; Durga  Shankar Mehta v. Thakur Raghuraj Singh & Ors. [1955]  1 SCR  267; Raj Krushna Bose v. Binod Kanungo & Ors. [1954]  SCR 913; The Kerala Education Bill 1957, [1959] SCR 995;  Prem  Chand  Garg  v.  Excise  Commissioner,  U.P. Allahabad [1963]  Supp. 1  SCR 885; Khudiram Das v. State of West Bengal  [1975] 2  SCR 832;  Biren Dutta & Ors. v, Cheif Commissioner of Tripura & Anr. [1964] 8 SCR 295; M.M. Damnoo v. J  & K  State [1972] 2 SCR 1014 and A.K. Gopalan v. State of. Madras [1950] SCR p. 80, referred.      A rule  of evidence  merely determines  what  shall  be regarded as  relevant and admissible material or the purpose of enabling  the court to come to a decision in the exercise of  its jurisdiction and it does not in any way detract from or affect  the jurisdiction  of the  court and it cannot, in the circumstances,  be violative  of Art.  226. But in order that if  should not  fall foul  of Art.  226, is  must be  a genuine rule of evidence. If in the guise of enacting a rule of evidence  the legislature in effect and substance disable and impedes  the High  Court from effectively exercising its constitutional power under Art. 226. such an enactment would be void.  It will  be  colourable  exercise  of  legislative power. The  legislature cannot  be permitted  to  violate  a constitutional   provision by  employing an indirect method. It a  legislative provision,  though  in  form  and  outward appearance a  rule of evidence, is in substances and reality something different  obstructing or  impeding the exercise . The jurisdiction  of the High Court under Art. 226, the form in which the legislative provision is clothed would not safe it from condemnation. [474 B-C]      It is  well settled that in order to determine the true character of  a legislative  provision. the  court must have regard to  the substance  of the provision and not its form. Sub-section  (9)(a)  of  s.  16A  is  in  form  and  outward

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appearance a  rules of evidence which says that the grounds, information and materials on which the order of detention is made or  the declaration  under sub-section)  or sub-section (3) is  based shall  be treated as confidential and shall be deemed   to refer  to matters  of State  and be  against the public interest  to disclose.  Sub-s.  (9)  (a)  of  s.  16A assumes valid declaration under sub-s. (2) or sub-s. (3) and it is only when such a declaration has been made that sub-s. (9)(a) of  s. 16A  applies or  in other words. It is only in cases  where   a  person   is  detained  in  order  to  deal effectively with  the emergency.  that the disclosure of the grounds, information and materials is prohibited by sub-sec. (9)(a) of s. 16A. [474 E-F 475 B-C, E-F]      The rule enacted in sub-s. (9)(a) of s. 16A bears close analogy to  a rule  of conclusive  presumption  and  in  the circumstance it  must be  regard    as  a  genuine  rule  of evidence. [476 D]      If the  grounds,  information  and  materials  have  no relation to  matter of  State or  they cannot possibly be of such a  character that  their closure  would  injure  public interest, the  legislature cannot,  by  merely  employing  a legal function, deem them to refer to matters of State which it would be against public interest to disclose an 1 thereby exclude them  from the  judicial ken.  That would  not be  a genuine  rule   of  evidence:   it  would  be  a  colourable legislative device-a fraudulent exercise of power. There can be no  blanket ban on disclosure of the grounds, information and materials  to the  High Court of this Court irrespective of their true character in such cases [476 E-F] 205      M. M.   Damnoo  v. State of J & K [1972] 2 SCR 1014; A. K. Gopalan  v.  State of Madras [1950] SCR 88 and Liversidge v. Sir John Anderson [1942] AC 206. referred to.      The grounds,  information and  materials in  almost all cases would  be of  a confidential  character falling within the class of documents privileged under s. 123 and hence the rule  enacted  in  sub-section  genuinely  partakes  of  the character of  a rule  of evidence.  Sub-s. (9) (a) of s. 16A enacts a  genuine rule  of evidence  and it does not detract from or  affect the  jurisdiction of  the High  Court- under Art. 225  and hence  it cannot  be successfully  assailed as invalid. [476 G-H, 477 A]      There is  no warrant for reading down sub-section 9A of s. 16 so as to imply a favour in favour of disclosure to the court The  provision does  not constitute an encroachment on the constitutional jurisdiction or the High Court under Art. 226 and is accordingly not void. [477, C-D]      If the  declaration under sub-section (2) or sub-s. (3) is invalid, subs 9(a) of s. 16A will not be attracted on the grounds of  information and  materials on which the order of detention is made, would not be privileged under sub section therefore, sub-section  9(a) of s. 16A enacts a genuine rule of evidence. [477 A-B]      [His Lordship  thought it  unnecessary to  go into  the question of  construction and   validity  of s.  18  of  the Maintenance of Internal Security Act.] [464 A]      An obiter  cannot take  the place  of the ratio. Judges are not  oracles. It  has no binding effect and it cannot be regarded as  conclusive on  the point  when considering  the observations of  a High  judicial authority like this Court, the greatest  possible care  must be  taken  to  relate  the observations of a Judge to the precise issues before him and to confine  such observations,  even though  expressed    in broad terms,  in the  general compass of the question before him unless he makes it clear that he intended his remarks to

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have a  wider ambit. It is not possible for Judges always to express their  judgments so  as to exclude entirely the risk that  in   some  subsequent   case  their  language  may  be misapplied and  any attempt at such perfection of expression can only lead to the opposite result of uncertainty and even obscurity as regard the case in hand. [1455 F-H, 456 A-C]      H. M.  Maharajadhiraja Madhav  Rao Jiwaji  Rao  Scindia Bahadur & Ors. v. Union of India [1971] 3 SCR 9, applied      Per H. R. Khanna, J. (dissenting)      Article  21   cannot  be  considered  to  be  the  role repository of  the right  to  life and personal liberty. The right to  life and  personal liberty  is the  most decisions right of human beings in civilised societies governed by the rule of law. [266 F. 302 H]      Sanctity of life and liberty was not something new when the Constitution  was drafted.  It represented  a  facet  of higher  values  which  mankind  began  to  cherish  in  its, evolution from  a state  of tooth  and claw  to a  civilized existence. The  principle that  no one  shall be deprived of his life  and liberty  without the  authority of law was not the gift  of the  Constitution. It was a necessary corollary of the concept relating to the sanctity of life and liberty, it existed  and was in force before the coming into force of the Constitution. [268 C-D]      Even in the absence of Art. 21 in the Constitution, the State has  got no  power to  deprive a person of his life or liberty without  the authority of law. That is the essential postulate and basic assumption of the Rule of Law and not of men in  all civilised nations. Without such sanctity of life and liberty,  the distinction  between a Lawless society and one governed  by laws  would cease  to have any meaning. the principle that  no one  shall be  deprived of  his  life  or liberty without  the authority  of  law  is  rooted  in  the consideration  that   life   and   liberty   are   priceless possessions which cannot be made the plaything of individual whim and caprice and that any act which has 206 the effect  of tampering  with life and liberty must receive substance from and sanction of the laws of the land. Article 21 incorporates  an essential  aspect of  that principle and makes it  part of  the Fundamental Rights guaranteed in part III of  the Constitution.  It does not, however, follow from the above  that if Art. 21 had not been drafted and inserted in Part  III, in  that even  would have been permissible for the State to deprive a person of his life or liberty without the authority of law. There are no case, to show that before the coming  into force  of the  Constitution or in countries under Rule  of Law where there is no provision corresponding to Art.  21, a   claim was ever sustained by the court, that the State  can deprive  a person  of  his  life  or  liberty without the authority of law. [302 H, 269 H, 270 A C]      Olmstead v.  United States   277 U.S. 438 (1928); James Sommersett’s case  (1772), 16  Cr. Pract.  289. Fabrigas  v. Mostyn 1  Cowp., 161. Ameer Khan’s case 6 Bengal Law Reports 392. Eshugbai  Eleko v. Officer Administering the Government of Nigeria,  AIR (1931)  P.C. 248;  Prabhakar  Kesheo Tare & Ors. v.  Emperor AIR  (1943) Nag.  26; Vimlabai Deshpande v. Emperor A.I.R.. 1945 Nag. 8: Jitendranath Ghosh v. The Cheif Secretary   to the Government of Bengal  ILR 60 Cal. 364; In re: Banwari  Lal Roy  & Ors.  48 CWN 766: Bidi Supply Co. v. The Union  of India & Ors. [1956] SCR 267 and Baheshar  Nath v. The  Commissioner of Income-tax, Delhi & Rajasthan & Anr. [1959] Supp. (1) 528, referred to.      The view,  that when  right to  enforce the right under Art. 21  is supplied the result would be that there would be

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no remedy  against deprivation  of a persons life or liberty by the  State even  though such  deprivation is  without the authority of  law or  even  in  flagrant  violation  of  the provisions of  law is  hot acceptable.  the facts  that  the framers of  the Constitution  made an aspect of such right a part or  the fundamental  Rights did  not have the effect of determining the  independent identity  of such  right and of making Art. 21 to be the sole repository. Of that right. The real effect  was to  ensure that  a law under which a per on can be  deprived of  his life  or  personal  liberty  should prescribe a  procedure for  such  deprivation  or  such  law should   be a valid  law not violation of Fundamental Rights guaranteed by  Part III  of the  Constitution Recognition as Fundamental Right  of one  aspect of  the pre-constitutional right  cannot   have  the   effect  of  making  things  less favourable so  far as  the sanctity  of  life  and  personal liberty is  concerned. compared to the position if an aspect of such  right had  not been recognised as Fundamental Right because of  The vulnerability of Fundamental Rights accruing from Art. 359. 1271 D-G]      A. K.  Gopalan v.  State of  Madras [1950]  SCR 88  and Dhirubha Devisingh Gohil v. The State of Bombay [1955] I SCR 691, referred to.      After the  coming into  force  of  the  Constitution  a detenu has two remedies one under Art. 226 or Art. 32 of the Constitution and  another  under  s.  491  of  the  Code  of Criminal Procedure.  The remedy  under an  earlier statutory provision would not get obliterated because of the identical remedy by a subsequent Constitutional provision and that the two can  co-exist without losing their independent identity. 1272 D-E]      Makhan   Singh v.  State of  Punjab [1964]  4 SCR  797, applied.      Dhirubha Devisingh  Gohil v. The State of Bombay [1955] I SCR 691, not invokable.      The principle that no one shall be deprived of his life or liberty  without the  authority of  law stems  not merely from  the   basic  assumption  in  every  civilised  society governed by  the Rule  of Law  of the  sanctity of  life and liberty, it  flows equally  from, the  fact that  under  our penal laws  no one, is empowered to deprive a, person of his life or  liberty without  the authority of law [272 l I, 273 A]      The fact  that  penal  laws  of  India  answer  to  the description of  the word  law which has been used in Art. 21 would not militate against the inference 207 that Art. 21 is not the sole repository of the right to life or personal  liberty.   Nor is it the effect of Art. 21 that penal laws  get merged  in Art.  21 because  of the act that they constitute  law as mentioned in Art. 21, for were it so the suspension  of the right to move a court for enforcement of Fundamental Right contained in Art.. 21 would also result in suspension of the right to move any court for enforcement of penal laws. At one time the Constitution came into force, the legal  position was that no one could be deprived of his life or liberty without the authority of law. [273 A-C]      Director  of   Rationing  and   Distribution  v.   ’The Corporation of Calcutta & ors. [1961] 1 SCR 158, relied on.      It is  difficult  to  accede  to  the  contention  that because of  Art. 21  of the  Constitution, the law which was already in  force that  no One could be deprived of his life or liberty  without the authority of law was obliterated and ceased to  remain in  force.  No  rule  of  construction  or interpretation   warrants    such    an    inference.    The

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constitutional recognition  of the  remedy of writ of habeas corpus did  not obliterate  or abrogate the statutory remedy of writ  of habeas  corpus. Section  491.  Of  the  Code  of Criminal Procedure  continued to he a part of that Code till that Code  was replaced by the new Code. Although the remedy of writ of habeas corpus is not now available under. the new Code of  Criminal Procedure.  1973, the same remedy is still available under Art. 226 of the Constitution. [273 H, 274-A- Ci      Makhan Singh  v. State  of Punjab  [1964]  4  SCR  797, relied on.      According to  the law  in force  in  India  before  the coming into  force of  the Constitution,  no  one  could  be deprived of  his  life  and  personal  liberty  without  the authority of law. Such a claw continued to be in force after the coming  into force  of the  Constitution in view of Art. 372 of the Constitution. [303      The word  law has  been used in Art. 21 in the sense of State made  law and  not as  an equivalent  of  law  in  the abstract or  general  sense  embodying,  the  principles  of natural justice.  The procedure established by law means the procedure established  by law  made by the State, that is to say, the Union Parliament or the legislatures of the States. Law meant  a valid  and binding  law under the provisions of the Constitution  and not one infringing Fundamental Rights. [266 C-D]      A, K.  Gopalan  v.  State  of  Madras  [1950]  SCR  88, explained.      The effect  of the suspension of the right  to move any court for  the enforcement of the right conferred by Art. 21 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. [266 D-E]      Starting consequences  would follow from the acceptance of the  contention that  consequent upon  the issue  of  the Presidential order  in question, no one can seek relief from courts during the period of emergency against deprivation of life and  personal liberty.  If  two  constructions  of  the Presidential order  were possible,  the court should lean in favour of  a view which does not result in such consequence. The construction  which does not result in such consequences is not  only possible,  it is  also pre-eminently  possible. 1303 B-C]      Equally well  established is  the‘rule of  construction that if there be a conflict between the municipal law on one side and  the international  law or  the provisions  of  any treaty obligations  on the  other,  the  courts  would  give effect to  municipal law.  If. however, two constructions of the municipal  law are  possible, The  court should  lean in favour of  adopting such  construction  as  would  make  the provisions of  the municipal  law to the in harmony with the international law  or treaty obligations. While dealing with the Presidential Order under Art. 359(1) such a construction should be a adopted. as would, if possible, not bring  it in conflict with  the above Articles 8 and 9 of U.N Charter. It is plain that such a constructional is not only possible, it is a also pre-eminently 208 reasonable The  Presidential orders  therefore, should be so constructed as  not to  warrant arbitrary  arrest or  to bar right  to   an  effective  remedy  by  competent    national tribunals for acts violating basic right of personal liberty granted by law. 1276 A-B. 277 D-E]      Corocraft Ltd.  v. Pan  American Airways  Inc [1969]  1

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All. E.R.  80;  Article  51  of‘  the  Constitution,  H.  H. Kesavananda Bharati  v. State of Kerala [1973] Supp.. SCR I, referred to.      The argument  that suspending  the right of a person to move any  court for  the enforcement  of right  to life  and personal liberty  is done  under a  constitutional provision and,  therefore,  it  cannot  be  said  that  the  resulting situation would  mean the absence of the Rule of law. cannot stand close  scrutiny for it tries to equate illusion of the Rule of  Law with  the reality  of Rule  of Law.  A state of negation of  Rule of  Law would not cease to be such a slate because of the tact that such a state of negation of Rule of Law has  been brought About by a statute. Absence of Rule of Law would nevertheless be absence of Rule of Law even though it is brought about by a law to repeal all laws. The Rule of Law requires  something,  more  the  legal  principle  "quod principi placuit legis habet vigorem." [277 E-H, 278 A-Bl      Freedom under  law is  not absolute freedom. It has its own limitations  in its  own interest,  and can  properly be described as  regulated freedom.  The truth  that every  man ought to  be free  has for  its other side the complementary and consequential  truth that no man can be absolutely free. The need  of liberty  for each  is necessarily qualified and conditioned by  the need  of liberty  for all Liberty in the State, or  legal liberty.  is never  the absolute liberty or all, but relative and regulated liberty. Rule of law is true antithesis of  arbitrariness. The rule of law has come to be regarded as  the mark  of a  free society.  Its  content  is different in different countries. It is, however, identified with the  liberty of  ’he individual. It seeks to maintain a balance between  the opposing  notions of individual liberty and Public order. 1267 C-D; 268 B-C]      In a  long chain  of authorities  the Supreme Court has laid stress  upon the  prevalence of  the Rule of Law in the country, according to which the executive cannot take action prejudicial to  the  right  of  an  individual  without  the authority of  law. There  is no  valid reason to depart from the rule laid down in those decisions. 1278 E. 281 E, 303 C- D]-      Rai Sahib  Ram Jawaya  Kapur &  Ors.. v.  The State  of Punjab [1955]  2 SCR  225: State of Madhya Pradesh & Anr. v. Thakur Bharat  Singh [1967]   2  SCR 454.  Chief  Settlement Commissioner, Rehabilitation  Department Punjab  & Ors. etc. v. Om   Parkash  & Ors.  etc. [1968]  3  SCR  655;  District Collector of  Hyderabad &  Ors. v.  M/s. Ibrahim  & Co. etc. [1970] 3  SCR 498;  Bennett Coleman &  Co. and Ors. v. Union of India  [1973] 2  SCR 757.  Shree Meenaksi  Mills Ltd.  v. Union of  India [1974] 2 SCR 398; Naraindas Indurkhya v. The State of  Madhya Pradesh  AIR  1974  SC  1232:  Director  of Rationing and  Distribution v. The Corporation of Calcutta & Ors [1961]  1 SCR  158; Bishan  Das &  Ors. v.  The State of Punjab & Ors. [1962] 2 SCR 69; S. G. Jaisinghani v. Union of India &  Ors. [1967]  2 SCR 703. United States v. Wunderlick 342 US  98; John  Wilkes’s case  (1770) 4 Burr. 2528 at 2539 and Smt..  Indira Nehru  Gandhi v. Shri Rai Narain. [1976] 2 SCR 347, referred to.      According to  Art. 21.  no one  can be  deprived of his right to  personal liberty  except in  accordance  with  the procedure established  by law. Procedure for the exercise of power of depriving a person of his right of personal Liberty necessarily postulates  the  existence  of  the  substantive power. When Art. 21 is in force, law relating to deprivation of life  and personal  liberty must  provide  both  for  the substantive power  as well as the procedure for the exercise of such  power. When  right to move in court for enforcement

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of right  guaranteed by  Art 21  is suspended, it would have the effect  of dispensing  with the necessity of prescribing procedure for the exercise of substantive power to deprive a person of  his life and personal liberty, it cannot have the effect of permitting an authority to deprive a person of his life or  personal liberty  without  the  existence  of  such substantive power. [303 D-F] 209      The difference in phraseology of the Presidential order dated June  27, 1975  and that  of the  earlier Presidential orders would  not,  however,  justify  the  Conclusion  that because of the new Presidential order dated rune 27, 1975, a detention order need not comply with the requirements of the law providing  for preventive  detention. Such  a  detention order would  still be  liable to be challenged in a court on the ground  that it  does not comply with the requirement of law For preventive detention if ground for such challenge be permissible in  spite  of  and  consistently  with  the  new Presidential order.  The effect of the change in phraseology would only be that such of the observation made by his Court fn the  context of  the language of the earlier Presidential orders cannot  now be  relied upon.  Reliance, however,  can still be  placed upon the observations made in various cases which were  not linked  with the  phraseology of the earlier Presidential orders. [263 F-H]      Makhan Singh v. Stare of Punjab [1964] 4 SCR 797; State of Maharashtra  v.  Prabhakar  Pandurang  Sangzgiri  &  Anr. [1966] 1  SCR 702  and Dr.   Ram   Manohar Lohia v. State of Bihar & Ors. [1967] 1 SCR 709, referred to.      A Presidential  order. under  Art. 359(1)  can  suspend during the  period of  emergency only  the right to move any court for enforcement of the Fundamental Rights mentioned in the order.  Rights created by statutes being not Fundamental Rights can  be  enforced  during  the  period  of  emergency despite the  Presidential order. Obligations and liabilities flowing from statutory provisions likewise remain unaffected by the  Presidential order. Any redress sought from  a court of law  on the  score of breach of statutory provision would be outside  the purview  of Art. 359(1) and the Presidential order made thereunder. 1303 C-Hl      Anandan Nambiar  & Anr.  v. Chief  Secretary, Govt.  Of Madras [1966] 2 SC‘R 406 @ 410, referred to.      Clause (1A)  of Art..  359 protects  laws and executive actions from  any attack  on validity  on the score of being violation  of   the  Fundamental  Rights  mentioned  in  the Presidential order  in the  same way as Art. 358 protect the laws and  executive actions  from being  challenged  on  the ground of  being violative  of Art.  19 during the period of emergency. The  language of  clause (IA) of It. 359 makes it clear that the protection which is afforded by that clause h is to  such law or execute action as the State would but for the provisions  contained in Part 111 of the Constitution be competent  to  make  or  take.  The  word  competent  has  a significance  and   it  is   apparent   that   despite   the Presidential  order   under  Art.  359(1)  in  the  case  of executive action  the competence  of the  State to take such action would  have to  be  established.  Such  competence  . Would, however, be judged ignoring the restriction placed by the provisions or Part III of tho Constitution. To put it in other words,  clause (IA) of Art. 359 does not dispense with the necessity  of competence to make laws. Or take executive action. But  it would  still be  necessary to  establish the competence de  hors  the  restrictions  of  the  Fundamental Rights. [283 D-E]      Though, there  is no  reference to substantive power in

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Art.  21,   it  would   cover  both  the  existence  of  the substantive power  of depriving  a person  of his  life  and personal liberty  as well  as the procedure for the exercise of that power [284-D]      The suspension  of the  right to  move a  court for the enforcement of  the right  contained in  Art. 21 cannot have the effect of debarring an aggrieved person from approaching the courts  with the complaint regarding deprivation of life or personal  liberty by  an authority  on the  score that no power has  been vested  in the authority to deprive a person of life  or liberty. The pre-supposition of the existence of substantive power  to  deprive  a  person  of  his  life  or personal liberty  in Art.  21 even  though that article only mentions the  procedure, would  not necessarily point to the conclusion that  in the event of the suspension of the right to move  any court  for the  enforcement  of  Art.  21,  the suspension would  also dispense  with the  necessity of  the existence of  the  substantive  power  The  co-existence  of substantive power  and  procedure  established  by  law  for depriving R person of his life and liberty which is implicit in Art.  21 would  not lead to the result that even if there is suspension of the right regarding 16 -833 SCI/76. 210 procedure, suspension  would also operate upon the necessity of substantive power. What is true of a proposition need not be true  of the converse of that proposition. The suspension of the  right to  make. any court for the enforcement of the right contained in Art. 21 may have the effect of dispensing with  the   necessity  of   prescribing  procedure  for  the exercise.. Of  substantive power  to deprive a person of his life or  personal liberty, it can in no case have the effect of permitting  an authority  to deprive a person of his life or personal  liberty without  the existence  of  substantive power. The  close bond  which is there between the existence of substantive  power of  depriving a Person of his  life or personal liberty  and the procedure for the exercise of that power, if  the right contained in Art. 21 were in operation, would not necessarily hold good if that right were suspended because the  removal of compulsion about the prescription of procedure for  the exercise  of the  substantive power would not do  away with  the compulsion regarding the existence of that power. [284 G-H, 285 A-G]      In  considering   the  effect   of  Presidential  order suspending the  right of  a person  tn  move  my  court  for enforcement of  right  guaranteed  by  Art,  21,  the  words "except according to procedure established by law should not be treated  to be synonymous with save by authority of law . [285 D]      A Presidential  order under Art. 359(1) cannot have the effect of  suspending the  right to  enforce rights  flowing from statutes,  nor can  it bar  access  to  the  courts  of persons seeking  redresses on  he s  ore of contravention of statutory provisions. Statutory provisions are enacted to be complied with  and it is not permissible to contravene them. Statutory  provisions   cannot  be  treated  as  mere  pious exhortations or  words of  advice which  may be  adjured  or disobeyed with  impunity. Nor  is compliance  with statutory provisions optional  or at  the sufference  of the  official concerned. It  is the  presence  of  legal  sanctions  which distinguished positive  law from  other systems of rules and norms. To  be a  legal system  a set  of norms  must furnish sanctions for  some of  its precepts.  A legal  sanction  is usually thought  of  as  a  harmful  consequence  to  induce compliance with law. Non-complince with statutory provisions

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entails certain  legal consequences.  The Presidential order cannot stand in the way of the courts giving effect to those consequences.  To   put  it   differently,   the   executive authorities exercising  power under a statute have to act in conformity with its provisions and within the limits set out therein.  When   a  statute  deals  with  matters  effecting prejudicially the  rights of  individuals, the  ambit of the power of  the authorities  acting under the Statute would be circumscribed  by  its  provisions  and  it  would  not  the permissible to involve some indefinite general powers of the executive. [286 D-H]      Attorney General v. De Keyser’s Royal Hotel Ltd. [1902] AC 508,  Jaichand Lall Sethia v. State of West Bengal [1966] Supp. SCR  464; Durgadas  Shirali V.  Union of  India & ors. [1966] 2  SCR 573  and G.  Sadanandan v.  State of Kerala .& Anr. [1966] 3 SCR 590, referred to.      Article 226 under which the High Courts can issue writs of habeas corpus is an integral part of the Constitution. No power  has   been  conferred   upon  any  authority  in  the Constitution for  suspending the  power of the High Court to issue writs in the nature of habeas corpus during the period of emergency.  Such a  result cannot  be  brought  about  by putting some  particular construction  on  the  Presidential order in question. [288 B, 304 A-B]      Greene v. Secretary of State for Home Affairs [1942] AC 284, Secretary  of State  for Home Affairs v. O’Brien [1923] AC 603  (609) and  Rai Sahib  Ram Jawaya Kapur & Ors. v. The State of Punjab [1955] 2 SCR 225, referred to.       Article 226 of the Constitution confers power upon the High Courts of issuing appropriate writs in case it is found that the  executive orders  are not  in conformity  with the provisions of  the Constitution  and the  laws of  the land. Judicial scrutiny  of executive orders with a view to ensure that they  are  not  violative  of  the  provisions  of  the Constitution and the laws of the land being an integral part of our  constitutional scheme.  it  is  not  permissible  to exclude  judicial   scrutiny  except   to  the  extent  such exclusion is warranted by the provi 211 sions of  the Constitution  and the  laws made in accordance with those provisions. [290 F-&]      There is a clear demarcation of the spheres of function and power  in our  .‘Constitution.  The  acceptance  of  the contention advanced  on behalf  of the appellants would mean that during  the period  of emergency,  the courts  would be reduced to the position of being helpless spectators even if glaring and  blatant instances  of deprivation  of Life  and personal liberty in contravention of the statute are brought to their  notice. It would also mean that whatever it may be the law  passed by  the legislature,  in the matter of life, and personal  liberty of  the citizens, the executive during the period  of emergency  would not be bound by it and would be at  liberty to  ignore and  contravene it.  It is obvious that the acceptance of the contention would result in a kind of  supremacy  of  the  executive  over  the  legislate  and judicial organs  of  the  State,  and  thus  bring  about  a constitutional imbalance  which perhaps  was  never  in  the contemplation of  the framers  of the Constitution. The fact the the government which controls the executive has to enjoy the confidence  so the  legislator does not d-tract from the above conclusion.  The executive  under  our  constitutional scheme is nob merely to enjoy the confidence of the majority in the  legislature it  is  also  bound  to  carry  out  the legislative as  manifested by  the statutes  passed  by  the legislature. The  Constitution further contemplated that the

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function of  deciding   whether the  executive has  acted in accordance with  the legislative  intent should be performed by the Courts. [290 G-H, 291 A-C]      No one  can call  deny the power of the State to assume vast powers of the detention in the interest of the security of the  State. It  may indeed the necessary to do so to meet the peril   acing  the nation. The consideration of security of the  State must  have  a  primacy  and  be  kept  in  the forefront compared  to which the interests of the individual can only  take as  secondary piece.  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. There is no antithesis between the power of the State to detain a person without trial  under a  law or  preventive detention and the power  of   the  court  to  examine  the  legality  of  such detention. Tn  dealing with  an application  for a  writ  of habeas corpus,  the courts  only, ensure  that the detaining authorities act  in accordance  with the  law of  preventive detention. The impact upon the individual of the massive and comprehensive powers  of preventive detention with which the administrative officers are armed l has to be cushioned with legal  safeguarded..   against  arbitrary   deprivation   of personal liberty  if the  premises of the rule of law is not to lose  its content  and become meaningless. The chances of an innocent  person being detained under a law providing for preventive detention  on the  subjective satisfaction  of an administrative authority  are much  greater compared  on the possibility of  an innocent  person being convicted at trial in a court of law. 1291 F-H, 292 A, D-E]      Rex v.  Halliday Ex-parte  Sadiq [1917]  A.C. 260 @ 272 and Liversidge v. Sir John Anderson [1942] A.C. 206 referred to 7      The Presidential order of June 27. 1975, did not aspect maintainability of  the habeas  corpus petitions to question the legality  of the  detention orders  and  such  petitions could be proceeded with despite that order. [293 F]      Principle in  James Commersett’s case 1772 State Trials p. 1, referred to.      A law  of preventive  detention  is  not  punitive  but precautionary and  preventive. The  power of detention under such law  is based  on circumstance  of suspicion and not on proof of  allegation as  is required  at a regular trial for the commission of an offence. [294 F]      A court  cannot go  behind the  truth  of  the  alleged facts. If  The material  is germane  to the object for which detention is legally permissible and an 212 order. for detention is made don the basis of that material, the courts  cannot sit  as a  court of appeal and substitute their own  opinion  for  that  of  the  authority  concerned regarding the necessity of detention. [295 E-F]      Sharpe v.  Wakefield [1891] A.C. 172 at p. 179 and Ross v. Papadopollos  [1958] 2  All. E.R. 23 (on P. 33), referred to.      Malice in  fact is quite a different thing: it means an actual malicious intention on the part of the person who has done the  wrongful act,  and it May be, in proceedings based on  wrongs   independent  or   contract,  a   very  material

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ingredient in  the question  of whether  a  valid  cause  of action can be stated. [269 C-D]      Shearer v.  Shields [1914]  A.C. 808 Bhut Nath v. State of West Bengal, [1974] 3 S.C.R. 315, referred to.      In view of the Presidential Order  suspending the right of the person to move any court for enforcement of specified Fundamental Rights  including the  one under  Art. 22(5), it may with  plausibility  be  argued  that  the  vagueness  of grounds of  detention would not warrant the quashing of such detention order  during the  pendency  of  the  Presidential order  on   the  score  of  violation  of  Art.  22(5).  The Presidential order  would. however  not stand  in the way of the infirmity  of the  vagueness  of  grounds  of  detention because of  the contravention  of s.  X(l) of Maintenance of Internal Security Act. 1971. [297 E-F]      Every law  providing for  preventive detention contains certain procedural  safeguards. It  is imperative that there should be  strict compliance  with the requirements of those procedural safeguards  to sustain the validity of detention. Detention without  trial results  in  serious  inroads  into personal liberty  of an  individual.  In  such  case  it  is essential to  ensure. that  there is  no deviation  from the procedural safeguards provided by the statute. In the matter of even  a criminal  trial. it  is procedure that spells out much of  the difference between the rule of law and the rule by whim and caprice. The need for strict adherence to‘strict procedural safeguards  is much  greater when  we are dealing with preventive  detention which  postulates  detention of a person even  though he is not found guilty of the commission of an  offence. To condone or allow relaxation in the matter of compliance with procedural requirements would necessarily have the  effect of  practically doing  away with  even  the slender safeguards  is provide   by  the legislature against the arbitrary  use of  the provisions relating to prevention detention. The  history of  personal Liberty  is largely the history of insistence upon procedure. It would. therefore be wholly inappropriate to countenance and laxity in the mutter of strict compliance with procedural requirements prescribed for preventive detention. [297 G-H, 9‘s A-B]      Once substantial  disquieting doubt:  are raised by the detenue in  the mind  of the court regarding the validity or his detention.  it would be the bounden duty of the State to dispel those  doubts   by placing sufficient material before the court  with a   view to satisfy it about the validity of the detention by filing a good return. [299 C-D]      Kishori Mohan  v. State  of West  Bengal AIR  1974  SC‘ 1749; king  Emperor v.  Sibnath Banerji  71 IA  241  and  G. Sadanandan v.  State of  Kerala &  Anr., [1966]  3 SCR  590, referred to.      [His Lordship  did  not  express  any  opinion  on  the question of  the validity  of s 16A(9) of the Maintenance of Internal Security Act.[ 301-A]      The appropriate  occasion for the High Court to go into the constitutional  validity of  s. 16A(9)  and external all judicial scrutiny  in writs  of habeas corpus would  be when the State  or a  detenu whoever  is aggrieved upon, comes in appeal against  the final  judgments in any of the petitions pending in  the High  courts. The whole matter would then be at large  before the  Supreme Court  and  it  would  not  be inhibited by  procedural or  other constraints. It would not be permissible  or proper  for the  Supreme Court  to  short circuit the whole 213 thing and  decide the  matter by  by-passing the High Courts who are seized  of the matter. [302 F-G and 304 D-E]

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    Section 18  of the Maintenance of Internal Security Act would not detract from the view that Art. 21 is not the sole repository of  the right  to personal liberty. The principle that no  one shall  be deprived  of his  life  and  personal liberty without  the authority  of law  is also an essential facet of  the Rule  of law. Section 18, therefore, cannot be of much  assistance. The  view that  s. 18  would  have  the effect of  enlarging the ambit of the power of the detaining authority for  the purpose of passing an order for detention is not  correct. There  has been no amendment of s. 3 of the Act. [274 D-F]      Section 18  cannot be construed to mean that even if an order for detention is made on grounds not warranted by s. 3 of the  Act, it  shall be taken to be an order under s. 3 of the Act.  Apart from  the fact that such an inference is not permissible on the language of s. 18, the acceptance of this view would  also render  the  validity  of  s.  18  open  to question on  the ground  that it  suffers from  the vice  of excessive delegation  of legislative  power. The legislature is  -   bound  to  lay  down    the  legislative  policy  by prescribing  the   circumstances  in   which  an  order  for detention can  be  made.  It  is  not  permissible  for  the legislature to  confer a  power of  detention without laying down guidelines  and prescribing  the circumstances in which such order  should be  made. To do so would be tantamount to abdication of  Legislation function  for in such an event it would be  open to the detaining authority to detain a person on any ground whatsoever. [274 F-H, 275 A]      This Court  in appeal by the State enlarge  the area of the  Unfavourable  decision  qua  the  state  and  make  its position worse  compared to what it was before the filing of the appeal.  Procedural propriety  in  matters  relating  to appeals forbids  such a  course. The  question of  event  of judicial scrutiny  in the-  light of  s. 16A  should be gone into when the whole matter is at large before this court and this  court   is  not  inhibited  by  procedural  and  other constraints from  going into  certain aspects  which have  a vital bearing.  It is  primarily for  the High Courts before which the  matters are pending to decide the question of the of judicial  scrutiny in  the light of s. 16A(9), as amended by Act.  14 of  1976. A  course  which  has  the  effect  of bypassing the  High Courts  and making this Court in appeals from orders  on preliminary  objection to  decide the matter even before the matter has been considered by the High Court in the  light of  S. 16A(9),  as, amended  by Act 14 of 1976 should be avoided. [301 F-H]      There is  no sufficient  ground to  interfere with  the view taken  by all  the nine High Courts which went into the matter that  the Presidential order dated June 27, 1975, did not  affect   the  maintainability   of  the  habeas  corpus petitions to  question the legality of the detention orders. [304-C]      The principles  which should  be followed by the courts in dealing  with petitions  for writs  of habeas  corpus  to challenge the  legality of  detention are  well-established. 1304-D]      Unanimity  obtained  without  sacrifice  of  conviction commends the  decision to public confidence. Unanimity which is merely  formal and  which is  recorded at  the expense of strong conflicting views is not desirable in a court of last resort. [304-E]      A dissent in a court of last resort is an appeal to the brooding spirit  of the law, to the intelligence of a future day when  a later  decision may  possibly correct  the error into which the dissenting Judge believes the court have been

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betrayed. [304-G]      Prophets with  Honor by  Alan Barth  1974 Ed.  p.  3-6. referred to.      Observation: Judges  are not  there  simply  to  decide cases, but  to decide  them as  they think  they  should  be decided, and  while it  may be  regrettable that they cannot always agree, it is better that their independence should be maintained and  recognise  than  that  unanimity  should  be secured through its sacrifice. 214

&      APPELLATE JURISDICTION:  Criminal  Appeal  No.  279  of 1975.      (From the Judgment and order dated 1.9.75 of the Madhya Pradesh High Court m M. P. No. 597 of 1975) and            Criminal Appeals No. 355-356 of 1975.      (From the  judgment and  order dated  12.11.1975 of the Allahabad Court in W.P. Nos 7428 and 6885 of 75) and             Civil Appeal Nos. 1845-1849 of 1975      (From the  Judgment and  order dated  26.11.1975 of the Karnataka High  Court in  W. N.  Nos. 3318, 4101, 4103, 4177 and 4178 of 1975) and               Criminal Appeal No. 380 of 1975.      (Appeal by  Special Leave  from the  Judgment and order dated 31.10.1975  of the  Delhi High  Court in Criminal Writ No. 149/75) and                Criminal Appeal No. 41 of 1976      (Appeal by  Special Leave  from the  Judgment and order dated 19-11-1975  of Delhi  High Court  in Criminal Writ No. 158 of 149/75) and                Criminal Appeal No. 41 of 1976      (Appeal by  Special Leave  from the  Judgment and order dated 31  10.75 of the Delhi High Court in Criminal Writ No. 128/75) and               Criminal Appeal No. 389 of 1975      (Appeal by  Special Leave  from the  Judgment and order dated 5/  6/8th Dec.  1975  of  the  Bombay  High  Court  in Criminal Appln.  Nos. 171,  95, 97,  99, 109,  115, 116  and 168/75) and                Criminal Appeal No. 3 of 1976      (From the  Judgment and  order dated  12.12.1975 of the High Court of Rajasthan in D. B. Crl. Habeas Corpus petition No. 1606 of 1975) and                    Applicant/Interveners 1. Smt. Manek Ben (In, Crl. A. No. 279/75) 2. Maharaj Jai Singh (In Crl. A. Nos. 279, 355-356/75) 3. M/s.  Surinder Mohan  & Saraj Bhan Gupta (In Crl. A. Nos. 279 353-356/75) 4. Mr. V.K. Singh Chowdhry (In Crl. A. No. 355/75) 5. Mr. Deepchand Jain (In Crl. A, Nos. 355-356/75) 215      I. N.  Shroff and  H. S.  Parihar M.  C. Nihalani, Adv. Genl., Ram Punjwani, Dy. Adv. Genl., for the state of Madhya Pradesh-for the appellant, in Criminal Appeal No. 279/75.      Shanti Bhushan,  R. P.  Goyal, S.  S. Khanduja,  B.  R. Agarwala C.  L. Sahu  and R.  N. Nath, for the respondent in Criminal Appeal No. 279 of 1975.      S. N.  Kakar, Adv. Genl. Girdhar Malviya and o. P. Rana for the  appellant-State of  U. P.  in criminal appeals Nos. 355-356 of 1975. Soli J.  Sorabjee, S.  S. Khanduja, Mrs. K. Hingorani, K. N. Tripathi R.  P. Goyal  and Yatindra Singh for the respondent

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in Crl. A. No. 355/75. G. C.  Dwivedi, S.  S. Khanduja,  Dr. N.  M. Ghatate,  R. P. Goyal, K.  N. Tripathi  and K .K. Jha, for the respondent in Crl. A. No. 356/75. For the applicant/lnterveners 1. Smt.  Manek Ben  M/s. S. Venkataswami, C. S. Vaidianatha, Hardev Singh and R. S. Sodhi. 2. Maharaj  Jai Singh  A. K. Sen, R. H. Dhebar, R. C. Bhatia and B. V. Desai 3. M/s. Surinder Mohan & Suraj Bhan Gupta M/s Sharad Manohar and R N. Nath 4. Mr. V. K. Singh Chowdhry Mr. Santokh Singh. 5. Mr. Deepchand Jain M/s. Sharad Manohar and Amlan Ghosh      Niren De, Attorney General for India, V. P. Raman, Addl Sol. General, R. N. Sachthey, Girish Chandra and S. P. Nayar for the  appellant in  Civil Appeals  Nos. 1846-1849/75  and 1926/75)      Rama Joise,  N. M.  Ghatate  and  S.  S.  Khanduja  for respondent in CA No. 1845/75      C. K  Daphtary M. Veerappa N.M Ghatate Rama Joise, S.S. Khanduja Miss  Lilly Thomas, Pramod Swaroop, M. Veerappa, S. Balakrishnan Sharad  Manmohan, M.K.  Jain, Altaf Ahmed, R.P. Goyal, K.N. Tripathi, C.C. Dwivedi and Mrs. K. Hingorani for respondent in CA No. 1848/75.      S.S. Khanduja  for respondent  in CA  No. 1849 and R.I. 1926/75      K. N.  Byra Reddy  and Narayan Nettar for the appellant in CA No. 1926/75.      V. M.  Tarkunde, S.  K. Sinha, C. K. Ratnaparkhi, S. K. Verma and M. P. Jha for respondent I in Criminal A. 380/75. 216      N. M.  Qazi and  M. N.  Shroff, for  the appellants  in Criminal Appeal No. 380/75.      N. M. Ghatate and S. Balakrishnan for respondents 3 & 8 and 2, 4-7 in Cr. A. No. 380/75.      S. M. Jain for the appellant in Cr. A. No. 3/76.      V. S. Krishnan and A. V. M. Krishnan for respondent No. 2 in Criminal Appeal No. 3/76.      Niren De, Attorney Genl., V. P. Raman, Addl. Sol. Genl. R. N.  Sachthey, Girish  Chandra, S.  P. Nayar and P. P. Rad (in Cr. A. No. 279/75 only) for the Attorney General in Crl. As No. 279 & 355-356/75)      P. Ramchandra  Reddy, Adv.  Genl. and P. P. Rao for the State of Andhra Pradesh in Crl. As. Nos. 279, 355-356/7S.      Mr. Balbhadra  Prasad Singh and Mr. U. P. Singh for the state of Bihar in Crl. As. Nos. 279, 355-356/75.      J. N.  Kaushal, Adv. General, P. P. Rao and G. D. Gupta far the State of Haryana in Crl. A. No. 279/75.      Bakshi Sita Ram, Adv. General, R. N. Sachthey and S. P. Nayar for  the state  of Himachal  Pradesh in  Crl. As. Nos. 279, 355-356/75.      O. K.  Tikhu, Advocate General and Vineet Kumar for the state of Jammu and Kashmir in CA. Nos. 1845-1849      R. N.  Byra Reddy,  Advocate General  and N. Nettar for the State of Karnataka in Crl. A. 279 and 1845/75.      M. M.  Abdul Khader,  Advocate General  and D. K. M. K. Nair for the State of Kerala in Crh As. 279, 35S-3S6/75.      R. W. Adik Advocate General and D. R. Dhanuka and M. N. Shroff for  the state  of Maharashtra  in Crl. As. 279, 355- 356/75.      J. S.  Wasu, Advocate  General and  O. P.  Rana for the state of Punjab in Crl. As. 279, 355-356/75.      A. V.  Rangam and  Miss A.  Subhashini for the state of Tamil Nadu in Crl. As. 279, 355-356/75. S. N. Kakar, Advocate General and J. M. Nanavati (O.P. Rana)

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for the  state of  Uttar Predesh  in Crl.  A. 279 and CA No. 1845-1849/75.      J. M.  Thakore, Advocate General, J. M. Nanavati, S. K. Dholakia and  R. C.  Bhatia for  the state  of Gujarat in an appeals.      The following Judgments were delivered:      RAY, C.J.  These appeals  are by  certificates in  some cases and  by  leave  in  other  cases.  The  state  is  the appellant, The  respondents   were petitioners  in the  High Courts. 217      The respondents  filed applications  in different  High Courts for  the   issue  of  writ  of  habeas  corpus.  They challenged in  some cases  the validity  of the 38th and the 39th  Constitution   Amendment  Acts,  the  Proclamation  of Emergency  by   the  President  under  Article  352  of  the Constitution made  on 25  June, 1975.  They  challenged  the legality and  validity of  the orders  of their detention in all the cases.      The State  raised  a  preliminary  objection  that  the Presidential order  dated 27  June, 1975  made under Article 359 of  the Constitution  suspending the  detenus  right  to enforce any  of the  rights conferred by Articles 14, 21 and 22 of  the Constitution  and the  continuance  of  emergency during which  by virtue  of Article 358 all rights conferred by Article 19 stand suspended are a bar at the threshold for the resonants  to invoke  the jurisdiction of the High Court under Article  226 of  the Constitution and to ask for writs of habeas corpus.      The Judgment  are of  the  High  Courts  of  Allahabad, Bombay (Nagpur  Bench), Delhi,  Karnataka,  Madhya  Pradesh, Punjab and Rajasthan.      The  High   Courts  held   that   notwithstanding   the continuance  of   emergency  and   the  Presidential   Order suspending the  enforcement of  fundamental rights conferred by Articles 14,21 and 22 the High Courts can examine whether an order  of detention  is in accordance with the provisions of  Maintenance   of  Internal   Security  Act  (hereinafter referred to  as the  Act), which  constitute the  conditions precedent to  the exercise  of powers  thereunder  excepting those provisions  of the  Act which are merely procedural or whether the  order was  necessary. The High courts also held that in  spite of  suspension of  enforcement of fundamental rights conferred by Articles 21 and 22 of the Constitution a person’s right to freedom from arrest or detention except in accordance with  law can  be enforced only where such arrest and detention  except in accordance with law can be enforced only where  such arrest  and detention are not in accordance with  those   provisions  of   the  statue  which  form  the conditions precedent  to the  exercise of  power  under  the status as distinguished from merely procedural provisions or are malafide or are not based on relevant materials by which the detaining  authority could  have been satisfied that the order of detention was necessary.      The High Courts held that the, High Courts could not go into the questions whether the Proclamation of Emergency was justified or whether the continuance thereof was malafide.      The High  Courts did  not decide  about the validity of the 38th  and the 39th Constitution Amendment Acts. The 38th Constitution  Amendment   Act  amended  Articles  123,  213, 239(b), 352,  356, 359  and 360.  Broadly  Stated  the  38th Constitution Amendment  Act renders  the satisfaction of the President or the Governor in the relevant Articles final and conclusive and to be beyond any question in any Court on any ground. As  for Article 359 clause (1A) has been inserted by

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the 38th  Constitution Amendment  Act. The 39th Constitution Amendment Act  amended Articles  71, 329.  329(A) and  added Entries after Entry 86 in the Ninth Schedule. 218      No  arguments   were  advanced  on  these  Constitution Amendment Acts  and nothing  thereon falls for determination in these appeals.      It is  appropriate lo  mention here that on 3 December, 1971 in  exercise of  powers  conferred  by  clause  (1)  of Article  352   of  the   Constitution   the   President   by Proclamation declared  that a grave emergency exists whereby he security of India is threatened by external aggression.      On 25  June, 1975  the President  in exercise of powers conferred by  clause (1)  of Article 352 of the Constitution declared that a grave. emergency exists whereby the security of India is threatened by internal disturbances.      On 27  June, 1975  in exercise  of powers  conferred by clause (1)  of Article  359 the  President declared that the right of  any person including a foreigner to move any Court for the  enforcement of  the rights conferred by Article 14, Article 21  and Article  22  of  the  Constitution  and  all proceedings pending  in any Court for the enforcement of the above-mentioned rights shall remain suspended for the period during which  the  Proclamations  of  Emergency  made  under clause (1) of Article 352 of the Constitution on 3 December, 1971  and  on  25  June,    1975  are  both  in  force.  The Presidential order  of 27 June, 1975 further stated that the same shall  be in  addition to  and not in derogation of any order made  before the  date of  the aforesaid  order  under clause (1) of Article 359 of the Constitution.      It should  be noted  here that on 8 January, 1976 there was a  notification that  in exercise of powers conferred by clause (1)  article 359  of the  Constitution the  President declares that  the right  of any  perh son to move any Court for the enforcement of the rights conferred by Article 19 of the Constitution  and all  proceedings pending  in any Court for the enforcements the above-mentioned rights shall remain suspended for  the period  during which  the Proclamation of Emergency made  under clause  (1)  of  Article  352  of  the Constitution on  3 December 1971 and on 25 June, 1975 are in force.      The questions  which fall  for consideration  are two . First, whether  in view  of the  Presidential orders date 27 June, 1975  and 8  January, 1976 under clause (1) of Article 359 of  the Constitution any writ petition under Article 226 before a  High Court  for habeas corpus to enforce the right to personal  liberty of  a person  detained under the Act on the ground  that the  order of  detention or  the  continued detention is  for any reason not under or in compliance with the Act  is maintainable.  Second  if  such  a  petition  is maintainable  what  is  the  scope  or  extent  of  judicial scrutiny particularly  in view  of  the  Presidential  order dated 27  June, 1975  mentioning, inter  alia, Article 22 of the Constitution  and also  in view  of sub  section (9)  of section 16A of the Act.      The Attorney  General contended  that  the  object  and purpose of  emergency provisions  is that  the  Constitution provides special  powers to  the Executive  because at  such times  of  emergency  the  considerations  of  state  assume importance. It  has been  recognised  that  times  of  grave national emergency  demand grant  of special  power  to  the Executive   Emergency provisions  contained  in  Part  XVIII including Articles 358, 219 359(1)  and  359(1A)  are  constitutional  imperatives.  The

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validity of   law  cannot be  challenged on  the  ground  of infringing a fundamental right mentioned in the Presidential Order under  Article 359(1).   Similarly,  if the  Executive take any  action depriving  a person  of a fundamental right mentioned in  the Presidential  order any not complying with the law  such Executive action can not be challenged because such challenge  would  amount  in  substance  to  and  would directly impinge  on the  enforcement of  fundamental rights mentioned in the Presidential order. The reason given by the Attorney General  behind e  principle is  that in  times  of emergency the  Executive  safeguards  the  life  of  nation. Challenge to  Executive actions  either on  the ground  that these are  arbitrary or  unlawful  has  been‘  negatived  in England in Liversidge v. Anderson(l) and Greene v. Secretary of State  for Home Affairs(’) and also by this Court in Sree Mohan Chowdhury  v. the  Chief Commissioner, Union Territory of Tripura(3) and Makhan Singh v, State of Punjab(4).      The contentions  of the respondents are as follows: The arguments on  behalf of  the  state  mean  that  during  the emergency there  is no right to life or liberty. Article 358 is  more  extensive  as  the  fundamental  right  itself  is suspended. The  Presidential order under Article 359(1) does not suspend any fundamental right.      Second, the  object of  Article 359(1) is to bar moving the Supreme  Court under  Article 32  for the enforcement of certain specified rights without affecting in any manner the enforcement of  common law  and statutory rights to personal liberty under Article 226 before the High Court.      Third, Article  359(1) removes  the fetter  in Part III but does  not remove the fetters arising from the principles of limited power of the Executive under the system of checks and balances based on separation of powers.      Fourth, while  the Presidential  order operates only in respect of  fundamental rights mentioned in the Presidential order it  would not affect the rights of personal liberty at common law or under statute law or under natural law.      Fifth, Article  359(1) is not to protect illegal orders of the  Executive. The Executive cannot flout the command of Parliament relying  on   a Presidential  older under Article 359(1). The  suspension  of  fundamental  right  or  of  its enforcement cannot  increase the power of the executive vis- a-vis the individual.      Sixth, there  is no reason to equate the state with the Executive. The  suspension of  the fundamental  right or the right to  enforce it  has  only  this  consequence  that  it enables the  Legislature  to  make  laws  violative  of  the suspended fundamental  rights and the Executive to implement such laws.  The suspension of the fundamental right does not unable the  Executive  to  flout  legislative  mandates  and judicial decisions.      (1) [1942] A. C. 206.             (2) [1942] A. C. 284.      (3) [1964] 3 S. C. R. 442.    (4) [196414 Sr C. R. 797. 220      Seventh, the  Executive can  act to  the  prejudice  of citizens only  to the  extent permitted  by valid  laws. The Proclamation of Emergency does not widen the Executive power of the state under Article 162 so as to empower the State to take  any   Executive  action  which  it  is  not  otherwise competent to take.      Eighth, the  right to arrest is conferred by the Act on the State  and their  officers only  if the  conditions laid down under section 3 of the Act are fulfilled. Therefore, if the conditions  laid down under section 3 of the Act are not complied with  by the  detaining authority then the order of detention would be ultra vires the said Act.

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    Ninth, Habeas  corpus is  a remedy  not  only  for  the enforcement of  he right to personal liberty,, whether under natural law  or a  statute but  is also  a  remedy  for  the enforcement of  the principle  of ultra vires viz., when the detaining authority has failed to comply with the conditions laid down  in section  3 of the Act. In such a case the High Court has  jurisdiction to issue a writ af haheas corpus for the enforcement of the principle of ultra vire.;.      In England  it was  the practice  in times of danger to the state  to   pass what  were popularly  known  as  Habeas Corpus Suspension  Acts. Suspension did not legalise illegal arrest; it  merely suspended  a particular remedy in respect of particular  offences. Accordingly  it was the practice in England at  the close of the period of suspension to pass an Indemnity Act  in order  to protect  official concerned from the consequences  of any  incidental illegal acts which they might have  committed under  cover of  the suspension of the prerogative writ.      In England  the  Defence  of  the  Realm  Acts  1914-18 empowered the  Executive to  make regulations  by  order  in Council for securing the public safety or for the defence of the realm.   In  The King  v. Hallday  Ex parte Zadiq(1) the House of  Lords held  that  a  regulation  was  valid  which authorised the  Secretary  of  state  to  detain  a  British subject on the grounds of his hostile origin or association. It was  contended on  behalf of  Zadiq  that  there  was  no provision for  imprisonment without  trial. The  substantial contention was  that general  words in  a statute  could not take away  the vested  right  of  a  subject  or  alter  the fundamental law  of the  Constitution because  it  would  be repugnant to  the Constitutional  tradition of  the country. The majority  of the  court swept  aside these arguments and held that  on the construction of the Act. the Executive had unrestricted powers.      During  the  Second  World  War  the  Emergency  Powers (Defence) Act,  1939 in  England  empowered  the  making  of regulations for the detention of persons by the Secretary of state in  the interests  of the public safety or the defence of the  realm, and  for authority  to enter  and search  any premises.      Although access to the courts was not barred during the Second World War in England the scope for judicial review of executive action      (1) [1917] A. C. 260. 221 was  limited.  The  courts  could  not  consider  whether  a particular regulation  is necessary  or  expedient  for  the purpose of  the Act  which authorised  it. The  question  of necessity or  expediency  was  one  for  the  Government  to decide. The  court could, however, hold an act to be illegal as being  not authorised  by the  regulation relied  upon to Justify it.      It was  open to  the subject  in England  to  challenge detention by  application for  a writ  of habeas corpus, but such application had little chance of success in view of the decision of the House of Lords in Liversidge’s case (supra). The House  of Lords  took the  view that the power to detain could not  be controlled  by the  courts,  if  only  because considerations of  security forbade  proof of  the  evidence upon which  detention was ordered. It was sufficient for the Home Secretary  to have  a belief  which  in  his  mind  was reasonable. The  courts would  not enquire  into the grounds for his  belief,  although  apparently  they  might  examine positive evidence  of mala  fides or  mistaken identity.  In Greece’s case (supra) the House of Lords held that a mistake

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on the  part of  the advisory  committee in  failing, as was required by  the regulation,  to give  the appellant correct reasons for  his detention  did not  invalid  the  detention order. It  is noticeable  how the  same House expressed this view without any dissent.      Dicey states  that this  increase in  the power  of the Executive is  no trifle,  but it  falls  far  short  of  the process known  in some foreign countries as ‘’suspending the constitutional guarantees"  or in France as the proclamation or a  State of  siege’‘. Under  the Act  of 1881  the  Irish executive obtained  the  absolute  power  of  arbitrary  and preventive arrest, and could without breach of law detain in prison any person arrested on suspicion for the whole period for which  the Act  continued in force. Under the Prevention of Crime  (Ireland) Act,  1882 the Irish Executive was armed with extraordinary  powers in  the case of certain crimes to abolish right to trial by jury.      The Act  of Indemnity  in England  is  a  retrospective statute which  frees persons  who had  broken the  law  from responsibility for  its breach,  and thus  make acts  lawful which when  they were  committed  were  unlawful.  A  Habeas Corpus Suspension Act does not free any person from civil or criminal  liability   for  a   violation  of  the  law.  The suspension, indeed, of the Habeas Corpus Act may prevent the person arrested  from taking  at the  moment any  proceeding against the  Secretary of State. While the suspension lasts, he will  not be  able to get himself discharged from prison. If the  prisoner has been guilty of no legal offence then on the expiration  of the Suspension Act the Secretary of State and his  subordinates arc  liable to  actions or indictments for their illegal conduct.      Dicey stated  that the  unavowed  object  of  a  Habeas Corpus Suspension Act is to unable the Government to do acts which, though  politically expedient  may  not  he  strictly legal. The  Parliament which  suspends one of the guarantees for individual  freedom must  hold that  a crisis has arisen when  the   rights  of  individuals  must  be  postponed  to consideration or State. A Suspension Act would in facts fail of it. 222 main object,  unless the  officials felt.  assured that,  as long as  they bonafide,  and uninfluenced  by malice  or  by corrupt motives, carried out the policy of which the Act was visible sign,  they would  be protected  from penalties  for conduct which,  though it  night be  technically a breach of law, was  nothing more than the free exertion for the public good of  that discretionary  power which  the suspension  of Habeas Corpus Act was intended to confer Upon the executive.      The position  in America  is described in Cooley on the General Principles  of  Constitutional  Law  in  the  U.S.A. Fourth Edition.  In America  he right  to the writ of Habeas Corpus is not expressly declared in the Constitution, but it is recognised in the provision Article 1 in section 9 clause (2) that the privilege of writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety  may require  it.  In  America  the  power  in suspend  the  privilege  is  a  legislative  power  and  the President cannot  exercise it  except as  authorised by law. The suspension  does not  legalise what  is doing  while  it continues. It  merely suspends  or the  time this particular remedy. All  other remedies  for illegal arrests remain, and may be  pursued against  the parties  making  or  continuing them.      Liberty is  confined and  controlled  by  law,  whether common law  or statute.  It is  in  the  words  of  Burke  a

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regulated  freedom.  It  is  not  an  abstract  or  absolute freedom. The  safeguard of  liberty is  in the good sense of the  people   and  in   the  system  of  representative  and responsible  government   which   has   been   evolved.   If extraordinary powers  are given,  they are given because the emergency is extraordinary, and are limited to the period of the emergency.      Unsuitability of a court of law for determining matters of discretionary  policy was  referred to  by Lord Parker in the Zamora(1)  case  and  Lord  Finlay  in  the  Zadiq  case (supra). In  the Liversidge’s  case (supra) it was held that the. court  is not merely an inappropriate tribunal, but one the jurisdiction of which is unworkable and even illusory in these cases.  A court  of law  could not  have before it the information on  which the  Secretary  acts  still  less  the background of statement and national policy what is and what must determine the action which he takes upon it.      The  Liversidge   case  (supra)   referred   to   these observations in the Zadiq case (supra) "However precious the personal liberty  of the  subject may be, there is something for which  it may  well be,  to some  extent, sacrificed  by legal enactment,  namely, national  success in  the  war  or escape from  national plunder  or enslavement".  Liberty  is itself the  gift of  the law and may by the law be forfeited or abridged.      There is  no record  of any life of an individual being taken away  either in  our country  during emergency  or  in England or  America during  emergency in their countries. It can never  be reasonably  assumed that  such  a  think  will happen.  Some  instances  from  different    countries  were referred to  by some  counsel for the respondents as to what happened there when people were murdered in gas chambers or      (1) [1916] 2 A. C. 107. 223 people were otherwise murdered. Such instances are intend to produce a   kind  of terror  and horror and are hortative in character. People  who have faith in themselves and in their country will  not paint  pictures of diabolic distortion and mendacious malignment  of the  governance  of  the  country. Quite often  arguments are  heard that  extreme examples the given to test the power. If there is power, extreme examples will neither  add to  the power  nor rob  the same.  Extreme examples tend only to obfuscate reason and reality.      The reffect of the Suspension of Habeas Corpus Acts and of Indemnity  Acts in  England has  been to  give every  man security and  confidence in  periods  of  public  danger  or apprehension.  Rarely,   however,  has  this  been  suffered without jealousy,  hesitation and remonstrance. Whenever the perils of  the State  have been  held sufficient  to warrant this  sacrifice   of  personal   liberty,  no   Minister  or Magistrate has  been  suffered to tamper with the law at his discretion. Where  the  Government  believes  the  State  be threatened by  traitorous conspiracies during times of grave emergencies the  rights of  individuals  of  ordinary  times become subordinate to considerations of the State.      The pre-eminent  questions  are  four.  First,  is  the Presidential order  under Article 359 a bar at the threshold Second, is  Article 21  the sole  repository of right to the and  personal  liberty.  Third  is  the  Presidential  order subject to  the rubric  of Rule  of Law  ? Fourth is section 16A(9) of the Act a rule of evidence ?      The first  question turns  on the  depth and content of the  Presidential   order.  The  vital  distinction  between Article 358 and Article 359 is that Article 358 suspends the rights  only  under  Article  19  to  the  extent  that  the

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Legislature can make laws contravening Article 19 during the operation of  a Proclamation  of Emergency and the Executive can take  action which  the Executive  is competent  to take under  such   laws.  Article   358  does   not  suspend  any fundamental right.  While a  Proclamation of Emergency is in operation the  Presidential order  under Article  359(1) can suspend the  enforcement of  any or  all fundamental rights. Article 359(1) also suspends any pending proceedings for the enforcement of such fundamental right or rights. The purpose and object  of Article 359(1) is that the enforcement of any fundamental right  mentioned in  the Presidential  order  is barred or it remains suspended during the emergency. Another important distinction  between  the  two  Articles  is  that Article 355  provides for  indemnity where as Article 359(1) does not Article 359(1A) is on the same lines as Article 358 but Article  359(1A) now  includes  all  fundamental  rights which may  be mentioned  in  a  Presidential  order  and  is therefore much wider than Article 358 which includes Article 19 only.      A person  can enforce  a fundamental  right both in the case of  law being  made in violation of that right and also if the  Executive acts  in non-compliance with valid laws or acts without  the authority  of law.  It cannot be said that the  scope  of  Article  359(1)  is  only  to  restrict  the application of  the Article to the Legislative field and not to the  Acts of  the  Executive.  The  reason  is  that  and enforcement of  the  fundamental  rights  mentioned  in  the Presidential order is barred 224 and any  challenge either  to law  or  to  any  act  of  the Executive on  the ground  that it  is not in compliance with the valid  law or  without authority  of law  will amount to enforcement of  fundamental rights  and will,  therefore, be within the mischief of the Presidential order. The effect of the  Presidential   order  suspending   the  enforcement  of fundamental r  right amounts  to bar the locus standi of any person to  move the  court on  the ground  of violation of a fundamental right.      The Constitution  is the  mandate. the  Constitution is the rule  of law.  No one can arise above the rule of law in the Constitution.  The decisions  of  this  Court  in  Mohan Chowdhury’s (supra)  case, Makhan  Singh’s (supra)  case and Dr. Ram  Manohar Lohia  v. State of Bihar & Ors (1) are that any court  means all  courts including  this Court  and high Courts and the right to initiate legal proceedings. A person can enforce  fundamental rights  in this Court under Article 32 as  well as  in the  High Courts under Article 226. It is idle to  suggest that  the object  of Article 359(1) is that the right  to move  this Court  only is  barred and  not the right to  move any High Court. Article 226 does  not provide a  guaranteed   fundamental  right  like  Article  32.  This guaranteed right under Article 32 itself may be suspended by a Presidential order under Article 359(1). In such a case it could not  be said  that the  object of  the makers  of  the Constitution is  that a person could not move this Court for the enforcement  of  fundamental  rights  mentioned  in  the Presidential order  but could  do so  under article 226. the bar created  by. Article 359(1) applies to petitions for the enforcement  of   fundamental  rights   mentioned   in   the Presidential order  whether by  way of  an application under Article 32  or by  way of any application under Article 226. [See Makhan  Singh’s case  (supra) and  Ram Manohar  Lohia’s case (supra)].      It is incorrect to say that the jurisdiction and powers of this  Court under Article 32 and of the High Courts under

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Article 226  are virtually  abolished  by  the  Presidential order  without   any  amendment   of  the  Constitution.  No amendment  of  the  Constitution  is  necessary  because  no jurisdiction and  power either  of this Court or of the High Court is  taken away.  When a  Presidential order takes away the locus  standi of  the detenus  to move any court for the enforcement of  fundamental rights  for the  time being  the jurisdiction and powers of this Court and of the High Courts remain unaltered  Article 359(1) is not directed against any court. It is directed against an individual and deprives him of his locus standi.      The  courts  cannot  either  increase  or  curtail  the freedom of  individuals contrary  to the  provisions of  the Constitution. The  courts interpret the Constitution and the laws in  accordance with law and judicial conscience and not emotion. It  is wrong to say that the Executive has asked or directed any  one not  to comply  with the conditions of the Act. The question is not whether the Executive should comply or should not comply with the Act but whether a detenu has a locus standi  to move  any court for a writ in the nature of habeas corpus  of the  ground  of  non-compliance  with  the provisions of the Act.      (1) [1966] 1 S. C. R. 709. 225      In  period   of  public   danger  or  apprehension  the protective  law     which   gives  every  man  security  and confidence in  times of  tranquility  has  to  give  way  to interests of  the State.  The opinion  in England  has  been that when  danger is imminent, the liberty of the subject is sub ordinated  to the paramount interests of the State. Ring leaders are  seized  and  outrages  anticipated.  Plots  are disconcerted, and  the dark haunts of conspiracy filled with distrust  and  terror  (See  May-Constitutional  History  of England, Vol. l, pp. 130-135).      While the  courts of law are in normal times peculiarly competent to  weigh the  competing claims of individuals and government they are in equipped to determine whether a given configuration of  events threatens the life of the community and  thus   constitutes  an   emergency.  Neither  are  they equipped, once an emergency has been recognised particularly a war  emergency or  emergency on account of security of the country being  threatened by  internal aggression to measure the degree  to which  the preservation  of the  life of  the community may require governmental control of the activities of the  individual. Jurists do not have the vital sources of information and  advice which are available to the executive and the legislature; nor have they the burden of formulating and  administering   the   continuing   programme   of   the government, and  the political responsibility of the people, which, though  intangibles, are  of  crucial  importance  in establishing the content within which such decisions must be made.      Article 359(1)  makes no distinction between the threat to the  security of  India by  war or external aggression on one hand  and threat  to the  security of  India by internal disturbance on  the other.  In  fact,  both  situations  are covered by  the  expression  "grave  emergency"  in  Article 352(1). Apart  from Article  359(1) all  provisions  of  the Constitution laying  down the consequences of a Proclamation of Emergency  under  Article  352(1)  would  apply  to  both situations. The  consequences of a Proclamation of Emergency under Article 352(1) of our Constitution are much wider than in England or America.      Article 353  provides that  the executive  power of the Union shall  extend to  giving of directions to any State as

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to manner  in which  the executive  power thereof  is to  be exercised. The exercise of such executive power by the Union totally  displaces  the  provisions  of  Article  162.  Non- compliance with  directions of  the  Union  Executive  under Article  353   by  any   State  Executive  may  attract  the provisions of  Article 356  and the  President’s Rule may be imposed on  that State.  In such   an event, Parliament may, under Article  357(1) confer  on the  President the power of the Legislature  of that  State to  make laws or to delegate such legislative  power to  any other  authority. In  such a situation,  the   federal   structure   and   representative Government on  which the  Constitution  is  based    may  be completely changed in the State or States concerned. Article 250 provides  that during  the operation  of Proclamation of Emergency Parliament  may make  laws with  respect to any of the matters  enumerated  in  the  State  list.  The  Federal Structure and  representative government may suffer its full place in that situation. 17-833 SCI/76. 226      on the  expiry of  the operation  of  the  Presidential order  under   Article  359(1),   the  infringement  of  the fundamental rights  mentioned in  the order,  either by  the legislative enactment  or by  an executive  action,  may  be challenged in  a court  of law  and if after such expiration Parliament passes  an Act of Indemnity, the validity and the effect of  such legislation may have to be scrutinised. [See Makhan Singh’s case (supra) at 813].      The  provisions   in  our   Constitution  relating   to emergence, are  of wide  amplitude. The  Executive is  armed with  special   powers  because   individual  interests  are subordinated to  State security. If law is invalid vis-a-vis fundamental rights  there cannot be any challenge during the operation of  Articles 358  and 359  on the  ground that law violates fundamental rights. It is contradictory to say that there can yet be challenge to orders under that law as being not in  accordance with  law. Article  19 is  a  prohibition against  law.   Article  19  has  nothing  to  do  with  the Executive.  Law   under  Article   21  can  be  punitive  or preventive. In  Article 22  reference is made to grounds and representation  in   cases  of   preventive  detention.   If enforcement of  Article 22  is suspended  one is  left  with Article 21.      The Act  in the  present case  is  law.  The  Executive orders are  under that  law. Any  allegation that orders are not under that law will not rob the orders of the protective umbrella of  Article 359. The challenge by a detenu that law is broken  will be  enforcement of  Article 21  because  law contemplated under  Article 21  is substantive  as  well  as procedural law. A law can be broken either of substantive or procedural parts.  Neither  enforcement  of  nor  relief  to personal liberty is based on Article 19. No executive action is valid unless backed by law. In the present cases there is law authorising  detention. In  the present cases, the writs questioned the  validity of detention. The Legislature under Article 358  is authorised  to act  in breach of Article 19. The executive  can act only in terms of that law. If this is pre emergency  law  it  has  to  satisfy  Part  III  of  our Constitution. If  it is emergency law it can violate Article 19 because it is protected by Article 358.      Under Article  359 the Presidential orders have been of two types.  on  3  November,  1962  in  exercise  of  powers conferred by  clause (1)  of Article 359 of the Constitution the President declared that "the right of any person to move any court  for the  enforcement of  the rights  conferred by

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Article 21  and Article  22 shall  remain suspended  for the period during  which the  Proclamation of  Emergency  issued under clause  (1) of  Article 352  on 26 October, 1962 is in force, if such a person has been deprived of any right under the Defence  of India ordinance 1962 or of any rule or order made thereunder".  the 1975 Presidential order under Article 359(1) does  not have  the words  "if such a person has been deprived of  any such  right  under  the  Defence  of  India ordinance 1962  or any  rule or  order made  thereunder". In other words,  the 1962  Presidential order is limited to the condition of  deprivation of  rights under  the  Defence  of India ordinance or any rule or order made thereunder whereas in the  1975 Presidential order no statute is mentioned. The illegality of orders was challenged in 227 Makhan Singh’s  case (supra)  in spite  of the  Presidential order under   the  1962 Proclamation  on the ground that the impeached orders are not in terms of the statute or they are made in abuse of law.      The decisions  of this  Court in  Mohan Chowdhury’s and Makhan Singh’s  cases (supra)  are that during the operation of a  Proclamation of  emergency no one has any locus standi to move  any court  for the  enforcement of  any fundamental rights mentioned  in the  Presidential Order. The ratio must necessarily apply  to Executive  acts because Executive acts are challenged  on the  grounds of being contrary to law and without  the   authority  of  law.  The  submission  of  the respondents that  a person  in detention can come to a court of law  in spite  of the  Presidential order  under  Article 359(1) and contend that a habeas corpus should be issued for his release or that the Executive should answer the detenu’s challenge that the Act complained of is without authority of law or  the challenge  of the  detenu that the provisions of the Legislative  Act under which the detention has been made have  not   been  complied   with  are  all  rooted  in  the enforcement of  fundamental rights to liberty under Articles 21 and 22. If courts will in spite of the Presidential order entertain such applications and allow the detenus to enforce to start  or continue  proceedings  or  enforce  fundamental rights.  Article  359(1)  will  be  nullified  and  rendered notice.      This Court  in Makhan Singh’s case (supra) said that if there was  challenge to  the validity of the detention order based on  any  right  other  than  those  mentioned  in  the Presidential order  that detenu’s  right to  move any  court could not be suspended by the Presidential order because the right was  outside Article  359(1). This  was  explained  by stating that  if the  detention was challenged on the ground that it contravened the mandatory provisions of the relevant Act or that it was malafide and was proved to be so, the bar of the Presidential order could have no application.      This observation  in Makhan  Singh’s case (supra) is to be understood  in the context of the question that arose for decision there.  Decision on  a point  not necessary for the purpose of  or which  does not fall to be determined in that decision  becomes  an  obiter  dictum  [See  Maharajadhiraja Madhav Rao  Jiwaji Rao  Scindia Bahadur  & Ors.  v. Union of India(1). In  Makhan  Singh’s  case  (supra)  the  detention orders which  were the  subject matter  of the judgment were orders made  by the  Executive under  the Defence  of  India ordinance or  Act and rules and orders made thereunder which was the  express condition for detention in respect of which the Presidential order of 1962 under Article 359(1) applied.      The Presidential  order in  the present  case is on the face of  it an  unconditional order and as such there is the

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vital and  telling difference  between  the  effect  of  the Presidential order  of 1962  and  the  present  Presidential order. It  is obvious that the Government fully conscious of the Presidential  order of 1962 and its effect as determined by the  decisions of  this  Court  in  Makhan  Singh’s  case (supra) and subsequent      (1) [1971] S. C. R. 9 at pp. 97-98, 193-194. 228 cases deliberately  made the  present Presidential  order an unconditional order under Article 359(1).      Reference may  be  made  to  State  of  Maharashtra  v. Prabhakar Pandurang  Sangzgiri  and  Anr.(1)  which  clearly pointed out  that the  Presidential  order  of  1962  was  a conditional one  and therefore  if a  person was deprived of his personal  liberty not  under the Act or rules and orders made thereunder  but in  contravention thereof, his right to move the  courts in  that regard  would not be suspended The decision of this Court in Pandurang’s case (supra) is by the Constitution Bench  of five  learned Judges,  three of  whom were on  the Constitution  Bench  of  seven  learned  Judges deciding Makhan  Singh’s case  (supra). In  Pandurang’s case (supra) the ratio was that if a personal was deprived of his personal liberty  not under the Act or rules and orders made thereunder but  in contravention  thereof, his right to move the courts in that regard was not suspended      It,  therefore,   follows   from   the   decisions   in Pandurang’s case  and Makhan  Singh’s case  (supra) that the ratio in both the cases was that the 1962 Presidential order being a  conditional one  the enforcement  of  rights  under Articles 21  and 22  was suspended only to the extent of the conditions laid  down in  the  Presidential  order  and  the suspension  could   not  operate   in  areas   outside   the conditions. There is no aspect whatever. Of any condition in the present  Presidential order. Therefore, the decisions in Makhan Singh’s  case (supra)  and subsequent cases following it have  no application  to  the  present  cases  where  the suspension is  not hedged  with any condition of enforcement of any  right under  Articles 21  and 22. The conclusion for the forging  reasons is that the Presidential order is a bar at the threshold.      The heart  of the  matter is  whether Article 21 is the sole repository  of the  right to  personal liberty.  If the answer  to   that  question   be  in   the  affirmative  the Presidential order will be a bar.      The contentions  of the  Attorney General are two-fold. First, the  legal enforceable  right to personal liberty for violation thereof  by the  Executive is  a fundamental right conferred by the Constitution and is embodied in Article 21. Second, apart  from Article 21 the right to personal liberty against the  Executive is  neither a  common law right nor a statutory right  nor a  natural right.  He relies  on  three decisions.  The   earliest  is  Girindra  Nath  Banerjee  v. Birendra Nath Pal(2). The others are King Emperor v. Sibnath Banerjee(3) and  Makhan Singh’s  case (supra).  In the first two decisions  it has  been held  that the  right to  habeas corpus is  only under  section 491  of the  Code of Criminal Procedure. In  Makhan Singh’s  case (supra) it has been said that this right under section 491 became embodied in Article 21. The  statutory right  under section  491 of  the Code of Criminal Procedure  has been  deleted from  the new  Code of Criminal Procedure which came into effect on 1 April, 1974.      (1) [1966] 1 S. C. R 702.      (2) I. L,. R. 54 Cal 727.      (3) 72 I. A. 241 229

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    The arguments on behalf of the respondents are that the right to   life  and personal liberty is not only in Article 21 but also under common law and statutes for these reasons.      The right  to personal liberty is contained in Articles 19, 20  and 22,  and, therefore,  Article 21 is not the sole repository to  personal liberty. The respondents rely on the decision is  Rustom Cavasjee  Cooper v.  Union  of  India(1) where it  was said  that the  ruling in A. K. Gopalan v. the State of  Madras(2) that  Articles 19  and 22  are  mutually exclusive no  longer holds  the field.  The respondents also rely on the decisions if Shombhu Nath Sankar v. The state of West Bengal  & Ors.(1), Haradhan Saha & Anr. v. The State of West Bengal & Ors.(4) and Khudiram Das  v. The State of West Bengal &  Ors.(5) in  support  the  proposition  that  these decisions followed  the ruling  in the  Bank Nationalisation case (supra).  The respondents contend that the Presidential order bars  enforcement of  rights under Articles 14, 19, 21 and 22  but  it  is  open  to  the  respondents  to  enforce violation of  right under  Article  20.  The  other  reasons advanced by the respondents are dealt with hereinafter.      The majority  view in  His Holiness Kesavananda Bharati Sripadagalavaru v.  State of  Kerala(6) is that there are no natural rights.  fundamental rights  in our Constitution are interpreted to  lie what  is commonly  said  to  be  natural rights. The  only right the life and liberty is enshrined in Article 21.      In A.  K. Gopalan’s  case (supra) it has been said that to read  law   as meaning  natural law  is to lay down vague standards. Law means law enacted by the State. Law must have some firmness. Law means positive State made law. Article 21 has been  interpreted in  A. K.  Gopalan’s case  (supra)  to include substantive  as well as procedural law in the phrase "procedure established by law". The reason is obvious. A law providing for  procedure depriving  a person of liberty must be a  law made  by statute. P. D. Shamdasani v. Central Bank of India Ltd.(7) held that Article 21 is prohibition against unauthorised  executive  action.  In  Shrimati  Vidya  Verma through next  friend R.  V. S.  Mani  v.  Dr.  Shiva  Narain Verma(8) law  in Article 21 has been held in mean State made law.      In Makhan  Singh’s case  (supra) it  was  decided  that during the  subsistence of the Presidential order suspending the enforcement  of fundamental  rights neither  a  petition under Article  32 nor  a petition under Article 226 could be moved invoking habeas corpus. An application invoking habeas corpus under  section 491  of the Code of Criminal Procedure cannot similarly be moved in the High Court.      Part III of our Constitution confers fundamental rights in positive as well as in negative language. Articles 15(1), 16(1), 19, 22(2).      (1) [1970] 3 S.C.R. 530.      (2) [1950] 3 S. C. R. 88.      (3) [1974] 1 S. C. R. 1.      (4) [1975] 1 S. C. R. 778.      (S) [1975] 2 S. C. R. 832.      (6) [1973] Supp. S. C. R. 1.      (7) [1952] S. C. R. 391.      (8) [1955] 2 S. C. R. 983. 230 22(5), 25(1), 26, 29(1), 30 and 32(1) can be described to be Articles in  positive language.  Articles 14,  15(2), 16(2), 20, 21, 22(1), 22(4), 27, 28(1), 29(2), 31(1) and (2) are in negative language.  It is  apparent that  most categories of fundamental rights  are in  positive as  well as in negative language. A  fundamental right  couched in negative language

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accentuates by  reason thereof the importance of that right. The negative  language is  worded to  emphasise the immunity from State  action as a fundamental right. [See The State of Bihar v.  Maharajadhiraja Sir  Kameshwar Singh  of Darbhanga and ors  (1) ]  These fundamental  rights conferred  by  our Constitution have  taken  different  forms.  Some  of  these fundamental rights  are said  to have  the texture  of Basic Human Rights (See A. K. Gopalan’s case (supra) at pp. 96-97, 248, 249,  293 and  Bank Nationalisation case (supra) at pp. 568-71, 576-78).      Article 31(1)  and (2)  subordinate the exercise of the power of  the State  to the  concept  of  the  Rule  of  Law enshrined in  the Constitution.  (See  Bank  Nationalisation case (supra) at p. 568). Similarly Article 21 is our Rule of Law regarding  life and  liberty. No  other rule  of law can have separate  existence as  a distinct  right. The negative language of  fundamental  right  incorporated  in  Part  III imposes limitations  on the  power of the State and declares the  corresponding  guarantee  of  the  individual  to  that fundamental  right.   The  limitation   and  guarantee   are complementary. The  limitation of State action embodied in a fundamental right couched in negative form is the measure of the protection of the individual.      Personal liberty  in Article  21 includes all varieties of rights which go to make personal liberty other than those in Article  19(1)(d). (see  Kharak Singh  v. State of U.P. & Ors.(2). The Bank Nationalisation case (supra) merely brings in the  concept of reasonable restriction in the law. In the present appeals,  the Act  is not  challenged nor  can it be challenged by  reason of Article 358 and Article 359(1A) and the Presidential order mentioning Article 19 as well.      If any  right existed  before the  commencement of  the Constitution and  the same  right with  its same  content is conferred by  Part III  as a fundamental right the source of that right is in Part III and not in any pre-existing right. Such pre-Constitution right has been elevated by Part III as a  fundamental   right.  The   pre-existing  right  and  the fundamental  right   have  to   be  grouped  together  as  a fundamental  right   conferred  by   the  Constitution.  See Dhirubha Devisingh Gohil v. The State of Bombay(3).      If there is a pre-Constitution right which is expressly embodied as  a fundamental right under our Constitution, the common  law  right  has  no  separate  existence  under  our Constitution. (See B. Shanknra Rao Badami & Ors. v. State of Mysore &  Anr.(4). If there be any right other than and more extensive than the fundamental right in Part III, such right may continue to exist under Article 372.      (1) [1952] S. C. R. 889 at 988-89.      (2) [1964] 1 S. C. R. 332.      (3) [1955] 1 S.C.R. 691 at 693-97.      (4) [19691 3 S. C. R. 1 at 11-13 231      Before the  commencement of  the Constitution the right to personal   liberty was contained in Statute law, e.g. the Indian Penal  Code, the  Criminal Procedure  Code as also in the common  law of  Torts. In  the  event  of  any  wrongful infringement of  the right  to personal  liberty the  person affected could  move a  competent court by way of a suit for false imprisonment and claim damages.      Suits for  false imprisonment are one of the categories of law  of Torts.  The common  law of Torts prevailed in our country before  the Constitution  on the  basis of  justice, equity and  good conscience. (See Waghela Rajsanji v. Shiekh Masludin &  Ors.(1) Satish  Chandra Chakravarti v. Ram Doyal Deo and  Baboo s/o  Thakur Dhobi  v. Mt. Subanshi w/o Mangal

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Dhobi(3).  This   principle  of  justice,  equity  and  good conscience which applied in India before the Constitution is generally known  as the  English Common  Law. Apart from the law of  Torts,  there  was  no  civil  remedy  for  unlawful infringement of  the right  to  personal  liberty  in  India before the Constitution.      After the  amendment of  section 491  of  the  Code  of Criminal Procedure  in 1923, the right to obtain a direction in the nature of a habeas corpus became a statutory right to a remedy  in India.  After 1923 it was not open to any party to ask  for a  writ of  habeas corpus  as a matter of common law. (See Makhan Singh’s case (supra) at pp 818-19; District Magistrate, Trivandrum v. K. C. Mammen Mappillai(4), Matthen v.  District   Magistrate,  Trivandrum(5),   Girindra   Nath Banerjee’s case (supra) and Sibnath Banerjee’s case (supra). The provisions of section 491 of the Criminal Procedure Code have been  repealed recently as being superfluous in view of Article 226.  (See 41st  Report of  Law Commission  of India (Vol.1) p. 307).      The present  appeals arise from petitions filed in High Courts for  writs  in  the  nature  of  habeas  corpus.  The statutory right  to remedy  in the  nature of  habeas corpus under section  491 of  the Criminal Procedure Code cannot be exercised now in view of the repeal of that section. Even if the section  existed today  it could  not be  exercised as a separate right  distinct from  the  fundamental  right,  the enforcement of  which is suspended by the Presidential order as was  held by  this Court  in Makhan Singh case (supra) at pp. 818-825.  There was  no statutory  right to  enforce the right to  personal liberty other than that in section 491 of the Criminal  Procedure Code  before the commencement of the Constitution  which   could  be   carried  over   after  its commencement under  Article 372.  Law means  enacted law  or statute law.  (See A.  K. Gopalan’s case (supra) at pp. 112, 199, 276,  277, 288,  307, 308,  309, 321,  322). It follows that law  in Article 21 will include all post-constitutional statute law  including the  Act in  the present  case and by virtue of  Article 372  all pre-constitutional  statute  law including the  Indian Penal  Code and the Criminal Procedure Code.      The expression  "procedure established by law" includes substantive as  well as procedural law. (See A. K. Gopalan’s case (supra)  at p.  111 and S. Krishnan & ors. v. The State of Madras(6). It means      (1) 14 I. A 59 at 96.      (2) I.L.R. 48 Cal. 388 at 407-10, 425. 426.      (3) A.I.R. 1942 Nag. 99.      (4) I.L.R. [1939] Mad. 708.      (5) L.R. 66 I.A. 222.      (6) [1951] S. C. R. 621 at p. 639. 232 some step  or method  or manner  of procedure  leading  upto deprivation of personal liberty. A law depriving a person of personal liberty  must be  a substantive  and procedural law authorising such  deprivation.  It  cannot  be  a  bare  law authorising deprivation  of personal  liberty. The makers of the Constitution  had the  Criminal Procedure  Code in mind. The repealed  Criminal Procedure Code as well as the present Criminal  Procedure   Code  has   substantive  as   well  as procedural provisions.  The 13  substantive as  well 35  the procedural parts  in a  law depriving  a person  of personal liberty must  be strictly  followed. There is no distinction between  the  expression  "save  by  authority  of  law"  in Article.- 31(1)  and the  expression "except by authority of law" in  Article 265. Laws under Article 31(1) must lay down

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a procedure  containing reasonable  restrictions. Law  under Article 265  also lays down a procedure. Therefore, there is no difference  between the  expression "except  according to procedure  established   by  law"  in  Article  21  and  the expression "save  by authority  of law"  in Article 31(1) or the expression "except  by authority of law" in Article 265. When Article 21 was enacted it would be a blunder to suggest that the  founding  fathers  only  enshrined  the  right  to personal liberty  according to  procedure and  not frame the constitutional mandate  that personal  liberty could  not be taken except according to law.      The Attorney  General rightly  submitted at  the outset that Article  21 confers  a fundamental  right  against  the Executive and law in that Article means State law or statute law. In  the present  appeals, the  respondents allege  that section 3  of the  Act has  not been  complied with.  In the present appeals  the Act  is not  challenged nor  can it  be challenged on  the ground  of infringement  of Article 19 by reason of  Articles 358,  359(1) and the Presidential order. It has been pointed out earlier that non-compliance with the provisions of  the Act  cannot be  challenged as long as the Presidential order is in force.      Article 20  states that  no person  shall be prosecuted and published  for the  same offence  more  than  once.  The present appeals  do not  touch any aspect of Article 20. The reason why  reference is made at this stage to Article 20 is to show  that Article  20 is a constitutional mandate to the Judiciary and  Article 21 is a constitutional mandate to the Executive.      The respondents contend that "State" in Article 12 will also include  the Judiciary  and Article  20 is  enforceable against the  Judiciary in  respect of  illegal  orders.  The answer is  that Article  20 is  a  prohibition  against  the Judiciary in  the cases  contemplated there.  If a person is detained after the Judiciary acts contrary to the provision, in Article  20 such detention cannot be enforced against the Judicially. In the event of the Judiciary acting contrary to the  provisions   in  Article  20  such,  detention  can  be challenged by  moving the  court against  the Executive  for wrongful detention  or conviction  or punishment as the case may be.  The expression  "No person  shall be prosecuted for the same  offence more  than once" in Article 20 would apply only to the Executive      The decision  in Makhan  Singh’s case  (supra) is  that fundamental rights  cannot be enforced against the Judiciary in case of illegal 233 orders. The  decision in Ram  Narayan Singh  v. The State of Delhi   & Ors.(1)  is no  authority for the proposition that fundamental rights  can be  enforced against  the Judiciary. This Court  held that  the  detention  of  Ram  Narayan  was illegal because  Ram Narayan  was being detained without any order of  remand by  the Magistrate.  In Ram  Narayan’s case (supra) there  was no  aspect of the bar. under Article 359. It is  not correct to say that the suspension of fundamental rights or  of   their enforcement  can increase the power of the Executive.  The effect  of suspension  or enforcement of fundamental   rights is  that an  individual cannot move any court for  the  enforcement  of  his  fundamental  right  to personal liberty for the time being;.      Reference to  Articles 256, 265 and 361 has make by the respondents to show that Article 21 is not the repository of rights to life and liberty. These references arc irrelevant. Article 256 do. not confer any right on any person. It deals with relations  between the Union and the State. Article 265

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has nothing  to do  with right  to personal liberty. Article 361 (3)  refers to  the issue  of a  process from  any court which is a judicial act and not any Executive action. In any event, these  Articles have  not relevance  in  the  present appeals.      Reference was  made by  the respondents  to an  accused filing appeal  relating to criminal proceedings to show that Article-21  is not the sole respository of right to life and liberty.  In  a  criminal  proceeding  the  accused  defends himself against the accusation of an offence against him. He does  not   move  any  court  for  the  enforcement  of  his fundamental right  of  personal  liberty.  In  an  appellant against the  order of  conviction the accused challenges the correctness of  the judicial decision. An appeal or revision is  a   continuation  of’   the  original  proceeding.  (See Garikapatti  Veeraya    v.  N.  Subbiah    Choudhury(2)  and Ahmedabad Mfg. & Calico Pvt. Co. Ltd. v. Ram Tahal Ramnand & Ors.(3).      The respondents  posed the  question whether  a  decree given against  the Government  could be  enforced because of the Presidential  order.   This is  irrelevant.  However,  a decree conclusively  determines the rights of the parties in the suit  and after  a decree  is passed  the right  of  the decree-holder  is   not  founded   on  the  right  which  is recognised by  the decree  but on  the decree  itself.  This right arising from a decree is not a fundamental right, and, therefore, will not be prima facie covered by a Presidential order under Article 359(1).      The other examples given by the respondents are seizure of  property   by  Government,   requisition  by  Government contrary to  Articles 31  and 19(1)  (f). If  any seizure of property is  illegal or  in acquisition  or  requisition  is challenged it  will depend  upon the  Presidential order  to find out  whether the proceedings are for the enforcement of fundamental rights covered by the Presidential Order      (1) [1953] S. C. R 652.         (2) [1957] S. C. R 488.                  (3) [1973] 1 S. C. R. 185. 234      Fundamental rights  including  the  right  to  personal liberty  are   enforced  by   the  Constitution.   Any  pre- Constitutional rights  which are  included in  Article 21 do not after  the Constitution remain in existence which can be enforced if  Article 21  is suspended. If it be assumed that there was  any pre-constitutional  right to personal liberty included in  Article  21  which  continued  to  exist  as  a distinct and  separate right  then Article 359(1) will be an exercise in  futility. In  Makhan Singh’s case (supra) there was not  suggestion that apart from Article 21 there was any common law or pre-Constitution right to personal liberty.      The  theory  of  eclipse  advanced  on  behalf  of  the respondents  is   untenable.  Reliance  was  placed  on  the decision in  Bhikaji Narain  Dhakras &  Ors. v. The State of Madhya Pradesh  & Anr.(1).  The theory  of eclipse refers to pre-constitutional  laws   which  were   inconsistent   with fundamental right.  By reason  of Article  13 (1)  such laws could not become void but became devoid of legal force. Such laws became  eclipsed for  the time  being.  The  theory  of eclipse  has   no  relevance   to  the   suspension  of  the enforcement of  fundamental rights  under Article  359 (1) . The constitutional  provisions conferring fundamental rights cannot be said to be inconsistent with Article 13 (1) .      Article 21 is not a common law right. There was no pre- existing common  Law remedy  to habeas  corpus. Further,  no common law  right which  correspond’s to a fundamental right can exist  as a  distinct right.  apart from the fundamental

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right. See Dhirubha Devisingh Gohil’s v. The State of Bombay (supra) and  B. Shankar  Rao Badami’s  ,  case  (supra).  In Gohil’s case  (supra) the validity of the Bombay Act of 1949 was challenged  on the  ground that it took away or abridged fundamental rights  conferred by  the Constitution.  The Act was held to be beyond question in view of Article 31-B which had been inserted in the Constitution by the First Amendment and the  Act being  mentioned as Item 4 of the 9th Schedule. It was  said that  one of  the rights secured by Part III of our Constitution  is a  right that  the  property  shall  be acquired for  a public  purpose and  under a law authorising such acquisition  and providing  for compensation.  That  is also the very right which was previously secured to a person under section  299 of  the Government of India Act, 1935. is Court said that what under the Government of India Act was a provision relating to the competency of the Legislature, was also clearly  in  the  nature  of  a  right  of  the  person affected.  The  right  under  Article  299  which  was  pre- existing, became along with other fundamental rights for the first time  secured by  our Constitution  when grouping them together as fundamental rights.      The respondents  gave the example that although section 12(2) of  the Act  makes it  obligatory on  the Executive to revoke the  detention order and if the Executive does not do so such  Executive action will amount to non-compliance with the Act. Here again, the detenu      (1) [1955] 2 S. C. R. 589. 235 cannot enforce  any statutory  right under  the Act  for the same reason   that it will amount to enforce his fundamental right to  personal liberty  by contending that the Executive is depriving  him of  his personal  liberty not according to "procedure established by law". Similarly, the example given of an illegal detention of a person by a Police officer will be met with the same plea.      An argument  was advanced  on behalf of the respondents that if  n pre-existing  law is  merged in  Article 21 there will be  conflict with  Article 372.  The expression "law in force"  in   Article  372  cannot  include  laws  which  are incorporated in  the Constitution  viz., in  Part  III.  The expression "law"  in Articles  19(1) and 21 takes in statute law.      The respondents  contended that permanent law cannot be repealed by  temporary law.  The argument  is irrelevant and misplaced. The  Presidential order  under Article  359(1) is not a  law. The  order does  not real  any law  either.  The suggestion that Article 21 was intended to afford protection to life  and personal  liberty against violation lay private individuals  was   rejected  in  Shamdasani’s  case  (supra) because  there   cannot  be  any  question  of  one  private individual being authorised by law to deprive another of his property or  taking away  the life and liberty of any person by procedure  established by  law.  The  entire  concept  in Article 21  is against  Executive action.  In Vidya  Verma’s case (supra)  this Court  said that  there is no question of infringement of fundamental right under Article 21 where the detention complained  of is by a private person and not by a State or under the authority or orders of a State.      The Act  in the  present case  is valid  law and it has laid down procedure of applying the law. The validity of the Act has  not been  challenged and  cannot be challenged. The Legislature has  competence to  make the law. The procedure? therefore. cannot  be challenged  because Articles 21 and 22 cannot be  enforced. The  suggestion of the respondents that the power of the Executive is widened is equally untenable.

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    The suggestion  on behalf  of the  respondents that the right to  private  defence  is  available  and  if  any  one resorted to  private defence  in resisting  detention  there might be  civil war  is an  argument to  excite emotion.  If there are signs of civil wars as the respondents suggestion, it is  for the  Government of  our country  to deal with the situation. It  is because of these aspects that emergency is not justifiable because no court can have proper standard to measure the  problems of  emergency in  the country.  If any person detained finds that the official has the authority to arrest him  no question of resistance arises and if there is no authority  the  same  cannot  be  challenged  during  the operation of  the Presidential  order but  the person  shall have his  remedy for any false imprisonment after the expiry of the Presidential order.      The respondents  submitted that  if Article 21 were the repository of a right to personal liberty it would mean that Article 21  destroyed pre-existing  rights and  then made  a fresh grant. There is no 236 question of destruction of any right. Our fundamental rights came  into   existence  for   the  first   time  under   the Constitution. The  fact that section 491 of the old Criminal Procedure  Code   has  been   abolished  in   the  new  Code establishes that  the pre-existing  right was  embodied as a fundamental right in the Constitution. The right to personal liberty  because   identified  with   fundamental  right  to personal liberty under Article 21.      The third question is whether Rule of law overrides the Presidential Order.   The  Presidential Order does not alter or suspended any law. The Rue of law is not a mere catchword or  incantation.  Rule  of  Law  is  not  a  law  of  nature consistent  and   invariable  at   all  times   and  in  all circumstances.   The certainly of law is one of the elements in the concept of the Rule of law but it is only one element and taken by itself, affords little guidance.  The essential feature if  Rule of  law is  that the  judicial power of the state is to a large extent, separate from  the Executive and the Legislature.  The Rule  of Law us a normative as much as it is  a descriptive term. It  expresses an ideal as much as a juristic  fact.   The Rule  of Law is nit identical with a free society.   If  the sphere  of the  Rule of Law involves what can  be called the "Existence of the Democratic system" it means  two things.   In  the first  place the  individual liberties of  a democratic  system involves the right of the members of  each society  to choose the Government under the which they lie.  In the second place come freedom of speech, freedom of  assembly and  freedom f  association.  These are not absolute  tights, Their  exceptions are justified by the necessity if reconciling the claims of different individuals to those  rights,  The criterion whereby this reconciliation an be  effected is  the concern  of law  to ensure  that the status and  dignity of  all individuals  is to  the greatest possible extent observed.      Freedom of speech may be limited by conception as clear present danger",  attack, on the free democratic order". The institutions and  procedures by which the fundamental regard for the  status and  dignity  of  the  human  person  an  be effected is  that rights  and remedies  are complimentary to the other,  The phrases  such as  "equality before  law"  or "equal protection  of the laws: are in themselves equivocal. The supremacy  of the  law means  that the  faith  of  civil liberty depends  on the  man who  has  to  administer  civil liberty much  more than  on any  legal  formula.  Aristotle, pointed   out  that  the  rigid  certainty  of  law  is  not

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applicable to  all circumstances.  this plea would be echoed by the  modern administrator  called upon  to deal  with the ever changing  circumstances of  economic and social life of the nation.      The respondents  contend  that  all  executive  actions which operate  to the  prejudice of any person must have the authority of  law to  support it.  Reliance is placed on the decisions in  Rai Sahib  Ram Jawaya Kapur  Ors. v. The State of Punjab(1)  M.P State  v. Bharat  Singh (2)  Collector  v. Ibrahim & Co. (3), Bennet Coleman & Co. v. Union of      (1) [1955] 2 S.C.R. 225      (2) [1967] 2 S.C.R. 454      (3) [1970] 3 S.C.R. 498 237 India(1) and  Meenakshi Mills  v. Union of India(2). This is amplified by  the respondents  to mean  that  the  Executive cannot detain  a person otherwise than under any legislation and on  the suspension of Article 21 or the right to enforce it, the  Executive cannot  get any  right to act contrary to law.      The Executive  cannot detain  a person  otherwise  than under valid  legislation. The  suspension of any fundamental right does  not effect  this rule  of the  Constitution.  In normal situations  when there is no emergency and when there is no  Presidential order  of the type like the present tile situation is  different. In Bharat Singh’s case (supra) this Court was  concerned with the pre-emergency law and an order of the  Executive thereunder.  It was  held  that  the  pre- emergency law  was void  as violative  of Article  19,  and, therefore, such  a law  being pre-emergency  law  could  not claim the protection under Article 358.      The ratio  in Bharat  Singh’s  case  (supra)  is  this: Executive action  which operates  to the  prejudice  of  any person must  have the  authority of  law to support it. [See also Ram  Jawaya Kapur’s  case (supra).  The  provisions  of Article 358  do not  detract from  that  rule.  Article  358 expressly  authorises  the  State  to  take  legislative  or Executive action  provided such action was competent for the State to  make or  take but  for the provisions contained in Part  III  of  our  Constitution.  Article  358  permits  an Executive action  under a  law which  may violate Article 19 but if  the law  is void  or if  there be no law at all, the Executive action  will not  be  protected  by  Article  358. Bharat Singh’s  case (supra) considers the effect of Article 358 so  far the  Executive action  is concerned, but was not concerned with  any Executive  action taken  infringing  any fundamental right  mentioned in  a Presidential  order under Article 359 (1) .      Ibrahim’s  case   (supra),  the  Bannett  Coleman  case (supra) and  the Meenakshi Mill’s case (supra) follow Bharat Singh’s case  (supra) regarding  the  proposition  that  the terms of  Article 358  do not detract from the position that the Executive  cannot act  to  the  prejudice  of  a  person without the authority of law.      The ratio  in Bharat  Singh’s case  (supra) is that the Madhya Pradesh  Public Security  Act was  brought into force before the Emergency Article 358 empowers the legislature to make a  law violating  Article 19. Article 358 does not mean that a  pre-emergency law  violating Article  19 would  have constitutional validity  during the period of emergency. The Executive action which was taken during the emergency on the basis of the pre-emergency law did not have the authority of law inasmuch  as the  Madhya Pradesh  Act of 1959 was a void law where it was enacted in violation of Article 19.      In Ibrahim’s  case (supra),  is the Sugar Control order

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1963 permitted  allocation of  quotas of  sugar.  The  State Government ordered  that the  sugar  allocated  to  the  two cities of  Hyderabad and  Secunderabad were  entirety to  be given to the Co-operative Stores. Under Article      (1) [1973] 2 S. C. R .757.      (2) [1974] 2 S. C. R. 398. 238 358 the  respondents there  could not challenge an Executive action which,  but for  the provisions contained Article 19, the State  was competent  to take.  But the  Executive order there was one which had the effect canceling the licenses of the respondents  which could  be done  only after an enquiry according to  the procedure  prescribed in  the  order.  The Executive  order   there  was  contrary  to  the  provisions contained in  the Sugar  Control order.  In other words, the Executive action  which was in breach of the order could not be immune  from attack  under Article  358.  In  the  Bennet Coleman case  (supra) it was said that the Newsprint Control order could  not authorise  the  number  of  pages.  In  the Meenakshi Mill  case (supra)  it  was  said  that  the  Yarn Control order  could not  be resisted  on the ground that it had no direct impact on the rights of the mills.      In these  four cases  referred to there was no question of  enforcement   of  fundamental  right  mentioned  in  the Presidential order. These four cases were not concerned with any Executive  action taken infringing any fundamental right mentioned in a Presidential order under Article 359.      The suspension  of right  to enforce  fundamental right has the  elect that  the emergency  provisions in Part XVIII are by themselves the rule of law during times of emergency. There  cannot   be  any   rule  of   law  other   than   the constitutional  rule   of  law.  There  cannot  be  any  pre Constitution or  post-Constitution Rule of Law which can run counter to the rule of law embodied in the Constitution, nor can there  be any  invocation to  any rule of law to nullify the constitutional provisions during the times of emergency.      The respondents  relied on  the decision  in  Eshugbayi Eleko v.  officer Administering the Government of Nigeria(1) support of  the proposition  that Rule  of Law  will  always apply even  when there  is Presidential  order. It has to be realised that  the decision  in Eshuqbavi Eleko cannot over- reach our Constitution.      Article 358  does not  permit the  Executive action  to have  the   authority  of  law.  Article  359  prevents  the enforcement of  the  fundamental  rights  mentioned  in  the Presidential  order.   It  bars   enforcement  against   any legislation or  executive! action  violating  a  fundamental right mentioned in the Presidential order.      The principle  in Eshugbayi  Eleko’s case  (supra) will not apply where Article 359 is the paramount and supreme law of the  country. There  is no  question of  amendment of the concept of  rule of  law or any suggestion of destruction of rule of  law as  the  respondents  con  tended  because  the Presidential order  under Article  359 neither nullifies nor suspends the  operation of  any law.  The consequence of the Presidential order is of a higher import than the suspension of any  law  because  the  remedy  for  the  enforcement  of fundamental rights  is barred  for the time being because of grave emergency.      (1) [1931] A. C. 662. 239      The respondents  contend that  if an individual officer acts outside   his  authority, it will be an illegal act and the High  Court under Article 226 can deal with it. Reliance is placed  on the  English decision  in Christie  & Anr.  v.

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Leachinsky(1) in  support of the proposition that the action of an individual officer will be an Executive action when he acts within the scope of his authority. ,      The decision  in Leachinsky’s case (supra) is an action for false  imprisonment and  damages against  two persons of Liverpool City   Police  for wrongfully  arresting a  person without informing  that person  of the  grounds for  arrest. That case has no relevance here.      An individual  officer acting  within the  scope of his official duty  would not cease to be so if he makes an order which is challenged to be not in compliance with the statute under which  he  is  authorised  to  make  the  order-.  Any challenge to  the order  of detention  would come within the fold of  breach  of  fundamental  right  under  Article  21, namely, deprivation of personal liberty.      The obligation  of the  Executive to  act in accordance with the  Act is  ail obligation as laid down in Article 21. If such  an obligation is not performed, the violation is of Article 21.  It will  mean that  the   right of  the  person affected will be a violation of fundamental right.      The expression  "for any  other purpose" in Article 226 means  for   any  purpose  other  than  the  enforcement  of fundamental rights.  A petition  for habeas  corpus  by  any person under  Article 226  necessarily involves  a  question whether the  detention is  legal or  illegal.  An  Executive action if  challenged to  be ultra vires a statute cannot be challenged by  any person  who is  not aggrieved by any such ultra vires action.      Section  18   of  the   Act  has  been  argued  by  the respondents to  mean that  a  malafide  order  of  detention cannot be  regarded as  an order made under the Act. Section 18 has  also been  challenged to  suffer from  the  vice  of excessive delegation.  Section 18  has been  amended by  the words "in  respect of  whom an order is made or purported to be made  under section  3"  in  substitution  of  the  words "detained under  this Act".  The result is that no person in respect of  whom and  order is  made or purported to be made under section  3 shall have any right to personal liberty by virtue of  natural law  or common  law, if  any. It has been earlier held  that there  is no  natural law  or common  law right  to   habeas  corpus.  The  respondents  rely  on  the decisions  in   Poona  Municipal   Corporation  v.   D.   N. Deodher(2),  Kala  Bhandar  v.  Munc.  Committee(3),  Indore Municipality v.  Niyamatulla(4) and  Joseph v.  Joseph(5) in support of  the proposition  that the  expression "purports" means "has the effect of". The respondents contend that      (1) [1947] A. C. 573.      (2) [1964] 8 S. C. R. 178.      (3) [1965] 3 S. C. R. 499.      (4) A. I. R. 1971 S. C. 97.      (5) [1966] 3 All. E. R. 486. 240 Section 18  of the  Act can apply only when a valid order of detention is  made. If the section be interpreted to include malafide orders  or orders  without jurisdiction  then it is said that such interpretation will prevail upon the judicial power and violate Article 226.      The expression "purported to be done" occurs is section 80 of the Code of Civil Procedure. The expression "purported to be  made   under section 3 of the Act" in section 18 will include an  executive act  made by  the District  Magistrate within the  scope of  his authority  as District Magistrate, even if  the order  is made  in breach  of the section or is mala  fide.  (See  Hari  Singh  v.  The  Crown(1)  Bhagchand Dagadusu v.  Secretary of  State for  India(2), Albert  West

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Meads v.  The King(3),  Anisminic  v.  Foreign  Compensation etc.(4) and Dakshina Ranjan Ghosh v. Omar Chand Oswal(5). As long as the District Magistrate acts within the scope of his authority as a District Magistrate an order passed by him is an order made or purported to be made under section 3 of the Act.      The section applies to any person in respect of whom an order as  been made  or purported  to be  made. There  is no question of excessive delegation. Section 18 of the Act lays down the  law. Section 18 of the Act is only an illustration of an  application of  the act by the officers authorised by the Act.      Section 18 identifies the person to whom it applies and in what  cases  it  applies  to  such  a  person.  The  word "purport" covers  acts alleged to be malafide. The decisions to which  reference has  been made  indicate that  the  acts whatever their  effect be  are all acts made or purported to be made under the Act.      A  contention  is  advanced  by  the  respondents  that section 18  of the  Act will  apply only  to  post-detention challenge. This  is wrong. Sec lion 18 applies to all orders of detention.      Counsel on behalf of the respondents submitted that the High Courts had only heard the matters on preliminary points and not  on the  area of  judicial scrutiny, and, therefore, this Court  should  not  express  any  view  on  the  latter question. There  are three  principal grounds why this Court should express  views. First.  The Bombay High Court (Nagpur Bench) has  read down  section 16A(9) of the Act. One of the appeals is  from the  judgment  of  the  Bombay  High  Court (Nagpur Bench).  This judgment  directly raises the question of  section  16A(9)  of  the  Act.  Second.  The  Additional Solicitor General  made his  submissions on this part of the case  and   all  counsel  for  the  respondents  made  their submissions in reply. Considerable time was spent on hearing submissions on  both sides. Time of the Court is time of the nation. Third.  It is only proper that when so much time has been taken  on these  questions this  Court  should  express opinions and lay down areas for judicial scrutiny.      (1) [1939] F. C R. 159.      (2) L. R. 54 I. A. 338 at 352.      (3) A.I.R. 1948 P, C. 156 at 157_59      (4) [1969] 1 All. E. R. 208 at 212-13. 237.      (5) I. L. R. 50 Cal’. 992 at 995-1003. 241      The respondents  contend that if the Presidential order does not   bar  the challenge  on the ground that the orders are malafide  or that  the orders are not made in accordance with the  Act the  non-supply of grounds will not affect the jurisdiction of  the Court.  It is  said by  the respondents that the  scope of  judicial scrutiny is against orders. The respondents submit  that court has gone behind the orders of detention in large number of cases.      The respondents  submit as  follows: It  is open to the Court to  judge the  legality of  the orders. This the Court can do  by going  beyond the  order. Though  satisfaction is recorded in  the order  and such  recording of  satisfaction raises the presumption of legality of order the initial onus on a  detenu is  only to the extent of creating "disquieting doubts" in  the mind  of the  Court. The doubts are that the orders are  based on  irrelevant non-existing  facts  or  on facts on  which no  reasonable person  could be satisfied in respect of  matters set out in section 3 of the Act. If such a prima  facie case is established the burden shifts and the detaining  authority   must  satisfy  the  court  about  the

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legality of  detention  and  the  detaining  authority  must remove doubts on all aspects of legality which have been put in issue. If the detaining authority for whatever reasons ] fails to satisfy the court either by not filing an affidavit or not placing such facts which may resolve the doubts about the legality  of detention  the court  may direct release of the detenus.      The respondents  submit that all that they want is that if the  detenus challenge the orders to be malafide or to be not in compliance with the statute and if the court does not have any  "disquieting doubts"  the court  will dismiss  the petitions. If  the court  has any  such doubt the court will call for  the return. On a return being made if the court is satisfied that  the return  is an  adequate answer the court will dismiss  the petition.  If the court wants to look into the grounds  the court  will ask  for the  production M  the grounds and  the court itself will look into the grounds but will not  show the  grounds to  the detenus.  In short,  the respondents submit  that the  jurisdiction of  the court  to entertain the  application should  not be  taken away  as  a result of the Presidential order. F      The appellants  submit that if Article 359 is not a bar at the  threshold and if the Court can entertain a petition, judicial review  should be  limited within a narrow area. In the forefront  16A(9) of the Act is put because that section forbids  disclosure   of  grounds  and  information  in  the possession of  the detaining  authority. The Nagpur Bench of the Bombay  High Court  read down  section  16A(9)  but  the Additional Solicitor  General submitted  that section 16A(9) should not  be  read  down  because  it  enacts  a  rule  of evidence.      The Additional  Solicitor General submitted as follows: the scrutiny  by  courts  will  extend  to  examining  first whether detention  is in  exercise or  purported exercise of law. That  will be  to find  out whether  there is  a  legal foundation for detention. The second enquiry will be whether the law  is valid law. If it is a pre-emergency law the same can be  tested as  to whether it was valid with reference to Articles      18-833Sup. CI/76 242 14, 19,  21 and  22. If  it is  an emergency legislation the validity of  law cannot  be  gone  into  first,  because  of Article 358,  and, second, because of the Presidential order under Article  359. The  other matters  which the  court may examine are  whether the  detaining authority is a competent authority under  the law  to pass  the  order,  whether  the detenu has  been properly  identified,  whether  the  stated purpose is  one which ostensibly conforms to law and whether the procedural safeguards enacted by the law are followed.      With regard  to grounds  of detention it is said by the Additional  Solicitor   General  that  if  the  grounds  are furnished or  are required  to be  furnished the  Court  can examine whether  such grounds  ex-facie  justify  reasonable apprehension of  the detaining  authority. Where the grounds are not  to be  furnished, it is said that this enquiry does not arise.  The Additional  Solicitor General  submits  that judicial scrutiny  cannot  extend  to  three  matters-first, objective appraisal of the essential subjective satisfaction of the  detaining  authority,  second,  examination  of  the material and  information before the detaining authority for the purpose  of testing  the satisfaction  of the authority, and, third,  directing compulsory  production  of  the  file relating to detenu or drawing and adverse inference from the non-production thereof.

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    Material and  information on which orders of preventive detention are  passed  necessarily  belong  to  a  class  of documents  whose   disclosure  would   impair   the   proper functioning of  public service  and administration. The file relating to  a detention  order  must  contain  intelligence reports and like information whose confidentiality is beyond reasonable question.  This was  the view  taken in  the Live sidge (1)  case. See  also Rogers(2) case. If privilege were to be  claimed in  each case  such a claim would in terms of sections  123   and  162  of  the  Evidence  Act  have  been invariably upheld.  Article  22(G)  also  contemplates  such claims on  behalf of  the State.  That  is  why  instead  of leaving it  to individual  decision in  each case  or to the discretion of  individual detaining  authorities to  make  a claim for  privilege, the  legislature has  enacted  section 16A(9) providing  for a  general exclusion  from evidence of all  such   material  as  would  properly  fall  within  the classification.      Section 16A  cannot be  said  to  be  an  amendment  to Article 226.  The jurisdiction  to issue  writs  is  neither abrogated nor  abridged. A  claim  of  privilege  arises  in regard to  documents or  information where a party to a suit or proceeding  is called  upon to  produce evidence. Section 16A(9) enacts  provisions analogous to a conclusive proof of presumption. Such a provision is a genuine rule of evidence. It is  in the  nature of  an Explanation to sections 123 and 162 of  the Evidence  Act.  Section  16A(9)  is  a  rule  of evidence. Therefore when the detaining authority is bound by section 16A(9) and forbidden absolutely from disclosing such material no question can arise for adverse inference against the authority.  If a detenu makes out a prime facie case and the court calls for a return, the affidavit of the      (1) [19421  A. C.  206 at  221, 253, 254, 266, 267, 279 and 280      (2) [1973] A. C. 388 at 400, 401 and 405. 243 authority will  be an answer. The Court cannot insist on the production of  the file  or hold that the case of the detenu stands unrebutted  by reason of such non-disclosure. To hold otherwise would be to induce reckless averments of malafides to force production of the file which is forbidden by law.      Section  16A(9)   cannot  be   read  down  implying  an exception in  favour of  disclosure  to  the  Court  as  was suggested by  the Bombay  High Court  (Nagpur  Bench).  Such disclosure to  the court  alone and  not to  the detenu will introduce something unknown to judicial procedure. This will bring in  an element  of  arbitrariness  and  preclude  both parties from  representing their  respective cases. Further, it would  substitute or  super-impose  satisfaction  of  the Court for  that of  the Executive.  This Court has held that the view of the detaining authority is not to be substituted by the  view of  the court. (See State of Bombay v. Atma Ram Sridhar Vaidya  (1), Shibban  Lal Saksena  v. The  State  of Uttar  Pradesh   &  Ors(2).,  Rarneshwar  Shaw  v.  District Magistrate, Burdwan & Anr.,(.3) Jaichand Lal v. W. Bengal(4) and Ram Manohar Lohia’s case (supra).      The theory  of good  return mentioned  in  the  English decisions is  based on the language of Habeas Corups Act and the Rules  of the  Supreme Court of England. The practice of our Court  is different.  The respondents  relied on  M.  M. Damnoo v.  J. &  K. State(5)  in support  of the proposition that the  file was  produced there  and also  contended that section 16A(9)  can be  struck down  as happened  in  A.  K. Gopalan’s case  (supra) where  section 14  of the Preventive Detention Act  was struck  down. When  A. K.  Gopalan’s case

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(supra) was  decided Article  22 was in force. Prevention of court from  on seeing  the grounds  contravened Article  22. There was  no question  of  privilege.  Section  14  of  the Preventive Detention  Act in  A. K.  Gopalan’s case  (supra) offended Article 22. (See A. K. Gopalan’s case 1950 S. C. R. 88 at 130, 217, 242, 283-84, 332-33).      In Damnoo’s  case (supra)  there  was  no  question  of privilage. The  file was produced but there was no direction of the  court to  produce the  file. Second.  There  was  no aspect of  Article 359.  Third. In Damnoo’s case (supra) the analogy of  section 14  of the  Preventive Detention  Act in Gopalan’s case  was considered.  No provision  like  section 16A(9) was  on the  scene. Fourth, The State did not rely on the proviso  to section  8 of  the  relevant  Act  there  to contend that the file could not be produced.      Section 16A(9) of the Act contains definite indications of implied  exclusion of  judicial review on the allegations of malafide.  It is not possible for the court to adjudicate effectively on  malafides. The  reason why  section 16A  has been enacted is to provide for periodi-      (1) [1951] S. C. R. 167.      (2) [1954] S. C. R. 418.      (3) [1964] 4 S. C. R. 921.      (4) [1966] Supp. S. C. R. 464.      (5) [1972] 2 S. C. R. 1014. 244 cal review  by Government  and that is the safeguard against any unjust or arbitrary exercise of power.      It will  be useless  to attempt to examine the truth of the fact  alleged in  the order  in a  case  when  the  fact relates to  the personal  belief of  the relevant  authority formed at  least partly  on grounds which he is not bound to disclose. It  is not  competent  for  the  court  to  decide whether the  impugned order  of detention under section 3(1) or the  declaration under  section 16A(2) and (3) or the Act during the  emergency is a result of malice or ill-will. The reason is  that it  is not  at all possible for the court to call for  and to  have a look at the grounds of the order of detention  under  section  3(1)  or  the  declaration  under section  16A(2)   and  (3)  of  the  Act  that  induced  the satisfaction in  the mind of the detaining authority that it was necessary  to detain the person or to make a declaration against him.      The  grounds   of  detention  and  any  information  or materials on  which the  detention and  the declaration were made are  by section  16A(9) of  the  Act  confidential  and deemed to refer to matters of State and to be against public interest to disclose. No one under the provisions of the Act and in  particular section  16A(9) thereof shall communicate or disclose such grounds, materials or information except as provided in  section 16A(5) and (8) of the Act. Sub sections (5) and  (8) have  no application  in these cases. The court cannot strike  down the  order as  vitiated by  malafide and grant relief  since it is not possible for the court without the examination  of such  grounds, materials and information to decide  whether the  order of  detention is the result of malice or ill-will. When the court cannot give any relief on that  basis   the  contention   of  malafides  is  not  only ineffective but also untenable. (See Lawrence Joachim Joesph D’Souza v. The State of Bombay(1).      The provision  for periodical  review entrusted  to the Government under section 16A(4) of the Act in the context of emergency provides a sufficient safeguard against the misuse of power of detention or arbitrary malafide detention during the emergency.  The Government  is in full possession of the

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grounds,  materials   and  information   relating   to   the individual detentions while exercising the power of review.      The jurisdiction  of the court in times of emergency in respect of  detention under the Act is restricted by the Act because  the  Government  is  entrusted  with  the  task  of periodical review.  Even if the generality of the words used in section  3(1) of  the Act  may not  be taken  to show  an intention to  depart from  the principle  in ordinary  times that the  courts arc  not deprived of the jurisdiction where bad faith  is involved,  there are  ample indications in the provisions of  the Act,  viz., section  16A(2),  proviso  to section 16A(3),  section  16A(4),  section  16A(5),  section 16A(7)(ii) and  section 16A(9) of the Act to bar a challenge to the detention on the basis of mala-      (1) [1956] S. C. R. 382 at 392-93. 245 fides. (See  Smith v.  East Elloe  Rural District  Council & Ors.(1) and  Ram Manohar  Lohia’s case (supra) at 716, 732). This Court  said that  an action  to decide the order on the grounds  of   malafides  does  not  lie  because  under  the provisions no  action is  maintainable for the purpose. This Court also  referred to  the decision in the Liversidge case (supra) where  the Court  held that  the jurisdiction of the court was  ousted in  such way  that even  questions of  bad faith could not be raised.      The production of the order which is duly authenticated constitutes a  peremptory answer  to the challenge. The onus of showing  that the  detaining authority  was not acting in good  faith   is  on  the  detenu.  This  burden  cannot  be discharged because of the difficulty of proving bad faith in the exercise of subjective discretionary power vested in the administration.  De   Smith  in   his  Judicial   review  of Administrative Actions  1973 Edition  at page  257 seq.  has said that  the reservation  for the  case of  bad  faith  in hardly more  than a formality. Detenu will have to discharge the impossible  burden of proof that the detaining authority did not genuinely believe he had reasonable cause      In  Lawrence  Joachim  Joseph  D’Souza’s  case  (supra) malafide exercise  of power  was untenable  having regard to the grounds  on which detention was based. In the context of emergency section  3 (1)  of the  Act confers  an  unlimited discretion which  cannot be examined by courts. This rule of construction of  the phrases "is satisfied", "in the opinion of", "it  appears to be", "has reason to believe" adopted by courts in  times of  national  emergency  will  be  rendered nugatory and  ineffective if  allegations of  malafides  are gone into.  A distinction is to be drawn between purpose and motive so  that where  an  exercise  of  power  fulfils  the purpose for  which power  was given, it does not matter that he who  exercised it  is influenced  by an extraneous motive because when  an act  is done  which is  authorised  by  the Legislature it  is not  possible to contest that discretion. So long as the authority is empowered by law action taken to realise that  purpose is  not malafide.  when the  order  of detention is  on the  face of it within the power conferred, the order is legal.      The width and amplitude of the power of detention under section 3 of the Act is to be adjudged in the context of the emergency proclaimed  by the  President.  The  Court  cannot compel the  detaining authority  to give  the particulars of the grounds on which he had reasonable cause to believe that it was  necessary to exercise this control. An investigation into facts or allegations of facts based on malafides is not permissible because such a course will involve advertence to the grounds  of detention  and materials  constituting those

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grounds which  is  not  competent  in  the  context  of  the emergency.      For  the  foregoing  reasons  the  conclusions  are  as follows:-      First. In view of the Presidential order dated 27 June, 1975 under  clause (1) of Article 359 of our Constitution no person has locus      (1) [1956] A. C. 736 at 776. 246 standi to  move any writ petition under Article 226 before a High Court  for habeas  corpus or any other writ or order or direction to  enforce any  right to  personal liberty  of  a person detained  under the Act on the grounds that the order of detention  or the  continued detention  is for any reason not under  or in  compliance with  the Act  or is illegal or malafide.      Second. Article  21 is the sole repository of rights to life and  personal liberty against the State. Any claim to a writ of  habeas corpus is enforcement of Article 21 and, is, therefore, barred by the Presidential order      Third. Section 16A(9) of the Act is valid. It is a rule of evidence  and it  is not  open either to the detenu or to the court to ask for grounds of detention.      Fourth. It  is not  competent for  any court to go into questions of  malafides of  the order  of detention or ultra vires character  of the order of detention or that the order was  not   passed  on  the  satisfaction  of  the  detaining authority.      The appeals  are accepted.  The judgments  of the  High Courts are set aside.      KHANNA, J.-Law  of preventive  detention, of  detention without trial  is an anathema to all those who love personal liberty. Such  a law  makes deep  inroads into  basic  human freedoms  which  we  all  cherish  and  which  occupy  prime position among  the higher  values of life. It is" therefore not surprising  that those who have an abiding faith ill the rule of  law and  sanctity of personal liberty do not easily reconcile themselves  with a  law under which persons can be detained for  long periods  without trial.  The proper forum for bringing  to book  those alleged  to be  guilty  of  the infraction of  law and  commission of  crime,  according  to them, is  the court  of law  where the  correctness  of  the allegations can  be gone   into in the light of the evidence adduced at  the trial.  The vesting  of power  of  detention without trial  in the  executive, the assert, has the effect of making  the same authority both the prosecutor as well as the judge and is bound to result in arbitrariness.      Those who  are entrusted with the task of administering The    land  have  another  viewpoint.  According  to  them, although they  are conscious  of the value of human liberty, they cannot afford to be obvious of the need of the security of the  State or  the maintenance  of public order. Personal liberty has  a value  if the  security of  the State  is not jeopardised and  the maintenance  of  public  order  is  not threatened.  There  can  be  the  administrator  assert,  no freedom to  destroy . Allegiance to ideals of freedom cannot operate in vacuum. Danger lurks and serious consequences can follow when  thoughts    become  encysted  in  fine  phrases oblivious of  political realities   and  the impact  of real politik. No government can afford to take risks in 247 matters relating to the security of the State. Liberty, they accordingly claim,  has to  be measured  against community’s need for security against internal and external peril.      It  is   with  a  view  to  balancing  the  conflicting

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viewpoints that the framers of the Constitution made express provisions for  preventive detention  and at  the same  time inserted safeguards  to prevent abuse of those powers and to mitigate the  rigour and  harshness of those provisions. The dilemma which faced the Constitution-makers in balancing the two  conflicting  viewpoints  relating  to  liberty  of  the subject and  the Security   of  the State  was not, however, laid to rest for good with the drafting of the Constitution. It has  presented itself  to this  Court in  one form or the other ever  since the  Constitution came  into force. A. K’. Gopalan’s(1) was  he first  case where  in a  Bench  of  six Judges of this Court dealt with the matter. Another Bench of seven Judges again dealt with the matter in 1973 in the case of Shambhu  Nath Sarkar  v. State of West Bengal & Ors(2) In between a  number of  Benches have  dealt with  the  various facets of  the question  one such  facet has  now  presented itself to this Constitution Bench      The question  posed before us is whether in view of the Presidential order  dated June  27, 1975 under clause (1) of article 359  of the  Constiution, any petition under article 226 before a High Court for writ of habeas corpus to enforce the right of personal liberty of a person detained under the Maintenance of  Internal Security Act, 1971 (Act 26 of 1971) (hereinafter  referred   to   as   MISA)   as   amended   is maintainable. A consequential question which may be numbered as question  No. 2  is, if  such a petition is maintainable, what is  the scope or extent of judicial scrutiny. The above questions arise  in criminal  appeals Nos.  279 of 1975" 355 and 356  of 1975, 1845-49 of 1975, 380 of 1975, 1926 of 1975 389 of  1975, 3  of 1976,  41 of  1976 and 46 of 1976. These appeals have been filed against the orders of Madhya Pradesh High Court,  Allahabad High  Court,  Karnataka  High  Court, Delhi High  Court, Nagpur  Bench of  Bombay High  Court  and Rajasthan High  Court whereby  the High  Courts repelled the preliminary objections  relating to  the maintainability  of petitions under  article 226  for writs  of habeas corpus on account of  Presidential order  dated June  27, 1975. On the second question"  some of the high Courts expressed the view that this  was a  matter which  would  be  gone  into  while dealing with  individual cases  on their  merits. The  other High Courts  went into  the matter and expressed their view. This judgment would dispose of all the appeals.      MISA   was published  on July 2, 1971. Section 2 of the Act contains  the definition clause. Section 3 grants powers to make  orders for  detaining certain  persons and reads as under:           "3.  (1)  The  Central  Government  of  the  State      Government may,-           (a)  if  satisfied  with  respect  to  any  person                including a  foreigner) that  with a  view to                preventing him  from  acting  in  any  manner                prejudicial to-      (1) [1950] S.C.R. 88.      (2) [1974] 1 S. C. R. 1. 248           (1)  the defence  of India, the relations of India                with  foreign  powers,  or  the  security  of                India, or           (ii) the security  of the State or the maintenance                of public order, or           (iii)the  maintenance  of  supplies  and  services                essential to the community, or      (b)  if satisfied  with respect  to any  foreigner that           with a  view to  regulating his continued presence           in India or with a view to making arrangements for

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         his expulsion from India, it is  necessary so to do, make an order directing that such person be detained.      (2)  Any of the following officers, namely:-      (a)  district magistrates,      (b)  additional    district    magistrates    specially           empowered in this behalf by the State Government,      (c)Commissioners of Police, wherever they have been appointed, may, if  satisfied as provided in sub-clauses (ii) and (iii) of  clause  (a)  of  sub-section  (1)"  exercise  the  power conferred by the said sub-section.      (3) When  any order  is made  under this  section by an officer mentioned  in sub-section  (2), he  shall  forthwith report the  fact to  the State  Government to  which  he  is subordinate together with the grounds on which the order has been, made and such other particulars as in his opinion have a bearing  on the  matter, and no such order shall remain in force for  more than  twelve days  after the making there of unless in  the meantime  it has  been approved  by the State Government:      Provided that  where under  section 8  the  grounds  of detention are communicated by the authority making the order after five  days but  not later  than fifteen  days from the dates of  detention, this sub-section shall apply subject to the modification that for the words ’twelve days’, the words ’twenty-two days’ shall be substituted.      (4) When  any order  is made  or approved  by the State Government under  this section,  the State  Government shall within seven days, report the fact to the Central Government together with  the grounds  on which the order has been made and such  other particulars  as in  the opinion of the State Government have a bearing on the necessity for the order." 249 Section  4   and  5  deal  respectively  with  execution  of detention orders   and  the  power  to  regulate  place  and conditions of  detention. According  to section 6, detention orders are  not to  be invalidated  or  inoperative  on  the ground that  the person to be detained is outside the limits of the territorial jurisdiction of the Government or officer making the  order’ or  that the  place of  detention of such person is  outside the  said limits. Section 8 requires that the Grounds  of order  of detention  should be  disclosed to persons affected  by the  order and he should be granted the earliest opportunity  of making a representation against the order. Section  9 deals  with the  constitution of  Advisory Boards. Section 10 makes provision for reference to Advisory Boards. Section  11 prescribes  the  procedure  of  Advisory Boards and  section 12  requires that action should be taken in  accordance  with  the  report  of  the  Advisory  Board. According to  section 13,  the maximum  period of  detention shall be  12 months  from the  date of detention. Section 14 confers power  of revocation of detention orders. Section 15 confers power upon the appropriate Government to temporarily release the detained persons. Section 16 gives protection to action  taken   in  good  faith.  Section  17  provides  for detention up  to two  years in  certain cases of foreigners. Section 18,  which  has  subsequently  been  re-numbered  as section 19,  provides for  the repeal  of the Maintenance of Internal Security ordinance and the saving clause.      According  to   clause  (1)   of  article  352  of  the Constitution, if  the President  is satisfied  that a  grave emergency exists  whereby the  security of  India or  of any part of  the territory  thereof is threatened whether by war or external  aggression or  internal disturbance  he may, by

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Proclamation, make a declaration to that effect. On December 3  1971   the  President   of  India  issued  the  following proclamation of emergency:           "In exercise of the powers conferred by clause (1)      of article  352 of  the Constitution,  I, V.  V.  Giri,      President of India; by this Proclamation declare that a      grave emergency exists whereby the security of India is      threatened by external aggression.                                                   V. V. Giri                                                   President" Clause (1)  of article  359 of  the  Constitution  reads  as under:           "Where  a   Proclamation  of   Emergency   is   in      operation, the  President may by order declare that the      right to  move any court for the enforcement of such of      the rights conferred by Part III as may be mentioned in      the order  and all proceedings pending in any court for      the enforcement of the rights so mentioned shall remain      suspended for  the period during which the Proclamation      is in  force or  for such  shorter  period  as  may  be      specified in the order." On November  16,  1974  the  President  of  India  made  the following order: 250           "In exercise of the powers conferred by clause (1)      of article  359  of  the  Constitution,  the  President      hereby declares that-      (a)  the right to move any count with respect to orders           of detention which have already been made or which           may hereafter  be made  under section 3 (1) (c) of           the Maintenance  of Internal Security Act, 1971 as           amended  by   ordinance  11   of  1974   for   the           enforcement of the rights conferred by article 14,           article 21  and clauses  (4), (5),  (6) and (7) of           article 22 of the Constitution, and      (b)  all proceedings  pending  in  any  court  for  the           enforcement of  any of  the aforesaid  rights with           respect of orders of detention made under the said           section 3(1) (c)’      shall remain  suspended for a period of six months from      the date  of issue  of this  order or the period during      which the Proclamation of Emergency issued under clause      (1) of  article 352  of the  Constitution  on  the  3rd      December, 1971,  is in  force, whichever period expires      earlier.           2. This  order shall  extend to  the whole  of the      territory of India." On June  20, 1975  the President  of India amended the above order by substituting twelve months" for "six months" in the order. On  June 25,  1975  the  President  of  India  issued another proclamation  of emergency  and the  same  reads  as under:           "PROCLAMATION OF EMERGENCY           In exercise  of the powers conferred by clause (1)      of article  352 of  the Constitution,  I Fakhruddin Ali      Ahmed, President of India, by this Proclamation declare      that a  grave emergency  exists whereby the security of      India is threatened by internal disturbance.                                             Sd/- F. A. Ahmed                                                   President" New Delhi the 25th June" 1975 On June  27, 1975  the President of India made the following order:           exercise of  the powers conferred by clause (1) of

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    article 359  of the  Constitution, the President hereby      declares that  the right  of any  person  (including  a      foreigner) to  move any  court for  the enforcement  of      their rights  conferred by  article 14,  article 21 and      article 22 of the Constitution 251      and all  proceedings  pending  in  any  court  for  the      enforce- h  men of  the above  mentioned  rights  shall      remain  suspended  for  the  period  during  which  the      Proclamation of  Emergency made  under  clause  (1)  of      article 352  of the  Constitution on  the 3rd December,      1971 and on the 25th June, 1975 are both in force.           This order  shall  extend  to  the  whole  of  the      territory of  India  except  the  State  of  Jammu  and      Kashmir.           This order  shall be  in addition  to and  not  in      derogation of  any order  made before  the date of this      order  under   clause  (1)   of  article   359  of  the      Constitution." On June  29, 1975  another order was issued by the President whereby the  words "except  the State of Jammu & Kashmir" in the order dated June 27, 1975 were omitted. On September 25, 1975 another  Presidential order  was issued  as a result of which the  last paragraph  in the  Presidential order  dated June 27, 1975 was omitted.      By Act  39 of  1975 Section  16A was introduced in MISA with effect from June 29, 1975 and the same reads as under :           "16A. (1)  Notwithstanding anything  contained  in      this  Act   or  any   rules  of  natural  justice,  the      provisions of this section shall have effect during the      period of  operation of  the Proclamation  of Emergency      issued  under   clause  (1)   of  article  352  of  the      Constitution on  the 3rd  day of  December, 1971 or the      Proclamation of  Emergency issued  under that clause on      the 25th  day of  June, 1975,  or a  period  of  twelve      months from  the 25th  day  of  June,  1975,  whichever      period is the shortest.           (2)  The   case  of   every  person  (including  a      foreigner) against  whom an order of detention was made      under this  Act on or after the 25th day of June, 1975,      but before  the commencement  of this  section,  shall,      unless such person is sooner related from detention, be      reviewed within  fifteen days from such commencement by      the  appropriate   Government  for   the   purpose   of      determining whether  the detention of such person under      this Act  is necessary for dealing effectively with the      emergency  in  respect  of  which    the  Proclamations      referred  to   in  sub-section  (1)  have  been  issued      hereinafter  in   this  section   referred  to  as  the      emergency) and  if, on  such  review,  the  appropriate      Government is  satisfied that it is necessary to detain      such person for effectively dealing with the emergency,      that Government  may make  a declaration to that effect      and communicate a copy of the declaration to the person      concerned.           (3) When  making an  order of detention under this      Act against  any person  (including a  foreigner) after      the  commencement   of  this   section,   the   Central      Government or the 252      State Government  or, as  the case  may be, the officer      making the  order of  detention shall  consider whether      the  detention   of  such  person  under  this  Act  is      necessary for  dealing effectively  with the  emergency      and if,  on such  consideration, the Central Government

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    or the  State Government  or, as  the case  may be, the      officer is  satisfied that  it is  necessary to  detain      such person for effectively dealing with the emergency,      that Government  or officer  may make a declaration to,      that effect  and communicate  a copy of the declaration      to the person concerned.           Provided that where such declaration is made by an      officer, it  shall be  reviewed by the State Government      to which  such officer  is subordinate  within  fifteen      days from  5 the  date of making of the declaration and      such declaration  shall cease  to have effect unless it      is  confirmed  by  the  State  Government,  after  such      review, within the said period of fifteen days.           (4) The  question whether  detention of any person      in respect  of whom  a declaration  has been made under      sub-section (2)  or sub-section  (3)  continues  to  be      necessary for  effectively dealing  with the  emergency      shall be  reconsidered by  the  appropriate  Government      within four  months from  the date  of such declaration      and thereafter  at intervals  not exceeding four months      and if,  on such  re-consideration, it  appears to  the      appropriate Government that the detention of the person      is no longer necessary for effectively dealing with the      emergency, that Government may revoke the declaration.           (5)  In   making  any   review,  consideration  or      reconsideration under sub-sections (2), (3) or (4), the      appropriate  Government   or  officer   may,  if   such      Government or officer considers it to be against public      interest to  do otherwise  act  on  the  basis  of  the      information and  materials in  its  or  his  possession      without disclosing  the facts  or giving an opportunity      of making a representation to the person concerned           (6) In  the case  of every person detained under a      detention order  to which the provisions of sub-section      (2)S apply,  being a person the review of whose case is      pending under  that sub-section  or inrespect of whom a      declaration has been made under that sub-section.-           (1)  section 8 to 12 shall not apply; and           (ii) section  13   shall  apply   subject  to  the                modification that  the  words    and  figures                which has  been confirmed  under  section  12                shall be omitted.           (7)  In the  case of every person detained under a                deten- 253      tion order  to which  the provisions of sub-section (3)      apply   being a person in respect of whom a declaration      has been made under that sub-section,-           (1)  section   3  shall   apply  subject   to  the      modification that for sub-sections (3) and (4) thereof,      the  following   sub-section  shall   be   substituted,      namely:-           (3) when  order of  detention is  made by  a State      Government or  by an  officer subordinate  to  it,  the      State Government  shall, within twenty days, forward to      the Central  Government a  report  in  respect  of  the      order;"           (ii) section 8 to 12 shall not apply; and           (iii)  section  13  shall  apply  subject  to  the      modification that the words and figures ’which has been      confirmed under section 12’ shall be omitted." Act 39  of 1975  also inserted  section 18  with effect from June 25, 1975 and the same reads as under:           "18. No  person (including  a foreigner)  detained      under this Act shall have any right to personal liberty

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    by virtue of natural law or common law, if any."      By the Constitution (Thirty eighth Amendment) Act, 1975 clauses (4)  and (5)  which read  as  under  were  added  in article 352 of the Constitution :           "(4) The  power conferred on the President by this      article shall  include the  power  to  issue  different      Proclamation  on   different  grounds,   being  war  or      external aggression or internal disturbance or imminent      danger  of  war  or  external  aggression  or  internal      disturbance, whether  or not  there is  a  Proclamation      already issued  by the  President under  clause (1) and      such Proclamation is in operation.           (5)  Notwithstanding     anything      in     this                Constitution,-        (a)     the satisfaction  of the  President mentioned                in clause  (1) and  clause (2) shall be final                and conclusive and shall not be questioned in                any court on any ground;           (b) subject  to  the  provisions  of  clause  (2),      neither the  Supreme Court  nor any  other court  shall      have jurisdiction  to entertain  any question,  on  any      ground, regarding the validity of-      (1)  a  declaration   made  by   Proclamation  by   the           President to the effect stated in clause (1); or      (ii) the continued operation of such Proclamation." 254 Following clause  (1A) was  also added  after clause  (1) of article 359 and the same reads as under:           (1A)  While   an  order   made  under  clause  (1)      mentioning any  of the  rights conferred by Part III is      in operation,  nothing in  that Part  conferring  those      rights shall restrict the power of the State as defined      in the  said Part  to make  any law  or   to  take  any      executive action  which the  State would  but  for  the      provisions contained  in that Part be competent to make      or to take, but any law so made shall, to the extent of      the in  competence, cease to have effect as soon as the      order aforesaid  ceases to  operate, except as respects      things done  or omitted  to be  done before  the law so      ceases to have effect." The Constitution  (Thirty ninth  Amendment)  Act,  1975  was published on August 10, 1975 and inserted the Maintenance of Internal Security Act, 1971 as item 92 in the Ninth Schedule to the Constitution.      On October  17, 1975  ordinance 16  of 1975  was issued making further amendment in section 16A of MISA and the same read as under:      "(a) for  sub-section (5),  the  following  sub-section      shall be substituted, namely:-           ’(5) In  making any  review, consideration  or re-      consideration under sub-section (2), sub-section (3) or      sub section  (4), the appropriate Government or officer      may act  on the  basis of the information and materials      in its  or his   possession  without  communicating  or      disclosing any  such information  or materials  to  the      person concerned  or affording  him any  opportunity of      making any representation against the making under sub-      section (2),  or the  making or  confirming under  sub-      section (3),  or the  non-revocation under  sub-section      (4), of the declaration in respect of him.’;           (b)   in sub-section (7), in clause (1),-           (1)  in the  opening portion,  for the  words ’the                following  sub-section’,   the   words   ’the                following’ shall be substituted;           (ii) in  sub-section (3),  as substituted  by that

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              clause, for the words ’forward to the Central                Government a report in respect of the order’,                the words  ’report the  fact to  the  Central                Government’ shall be substituted;           (iii)after   sub-section    (3)   aforesaid,   the                following shall be inserted, namely:-           ’(4) At  any time  after the  receipt of  a report      under  sub-section  (3),  the  Central  Government  may      require the  State Government to furnish to the Central      Government the grounds on which the order has been made      and such other particulars 255      as, in  the opinion  of the  State Government,  have  a      bearing on the necessity for the order.’:      (c) after  sub-section (7),  the following sub-sections      shall be inserted, namely:-           ’(8) in  the case of any person in respect of whom      a declaration has been made by a State Government under      sub-section (2)  or a  declaration has  been made  by a      State Government  or an  officer subordinate  to it  or      confirmed by  the State  Government  under  sub-section      (3), or  a declaration  has not been revoked by a State      Government  under   sub  section   (4),   the   Central      Government may,  whenever it  considers it necessary so      to do,  require the  State Government to furnish to the      Central Government the information and materials on the      basis of  which  such  declaration  has  been  made  or      confirmed, or not revoked, as the case may be, and such      other  information   and  materials   as  the   Central      Government may deem necessary.           (9)  Notwithstanding  anything  contained  in  any      other law or any rule having the force of law,-           (a) the  grounds on which an order of detention is      made under  sub-section (1)  of section  3 against  any      person in  respect of  whom a declaration is made under      sub-section (2)  or sub-section (3) and any information      or materials  on which  such grounds  or a  declaration      under sub-section  (2) or a declaration or confirmation      under sub-section  (3) or the non revocation under sub-      section (4)  of  a  declaration  are  based,  shall  be      treated as confidential and shall be deemed to refer to      matters of  State and to be against the public interest      Lo disclose  and save  as. Otherwise  provided in  this      Act, no  one shall  communicate or  disclose  any  such      ground,  information   or  material   or  any  document      containing such ground, information or material;           (b) no  person against  whom an order of detention      is made  under sub-section  (1) of  section 3  shall be      entitled to the communication or disclosure of any such      ground, information  or material  as is  referred to in      clause (a)  or the  production to  him of  any document      containing such ground, information or material."      On November  16, 1975  ordinance 22  of 1975 was issued making certain  amendments in  MISA. By  section  2  of  the ordinance the  words "twelve days" and "twenty days" in sub- section (3)  of section  3 of  MISA were  substituted by the words "twenty  days" and  "twentyfive days" respectively. In section 14  of the  principal Act  following sub-section was substituted for the original sub-section:      "(2) The  expiry or  revocation of  a  detention  order      (hereafter in  this  sub-section  referred  to  as  the      earlier detention  order) shall  not bar  the making of      another detention 256      order (hereafter in this sub-section referred to as the

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    subsequent detention order) under section 3 against the      same person:           Provided that  in a case where no fresh facts have      arisen   after the  expiry or revocation of the earlier      detention order  made against  such person, the maximum      period for  which  such  person,  may  be  detained  in      pursuance of  the subsequent  detention order shall, in      no case,  extend beyond  a period of twelve months from      the date of detention under the earlier detention order      or  until  the  expiry  of  the  Defence  and  Internal      Security of India Act, 1971, whichever is later." Following sub-section  (2A) was also inserted in section 16A of the principal Act:           "(2A) If  the State Government makes a declaration      under sub-section  (2) that the detention of any person      in respect  of whom  a detention  order is  made by  an      officer subordinate to that Government is necessary for      dealing  effectively  with  the  emergency,  the  State      Government  shall  be  deemed  to  have  approved  such      detention order  and the  provisions of sub-section (3)      of section  3, in so far as they relate to the approval      of the State Government, and of sub section (4) of that      section, shall not apply to such detention order." The  amendments   made   by   the   ordinance   were   given retrospective effect  for the purpose of validating all acts done previously.      During the  pendency of  these appeals, the Maintenance of Internal  Security (Amendment) Act, 1976 (Act 14 of 1976) was  published  on  January  25,  1976.  This  amending  Act incorporated and in same respects modified the changes which had been  brought about in the principal Act by ordinance 16 of 1975  and ordinance  22 of  1975. Section  2 and 3 of the amending  Act   incorporate  the   changes  which  had  been introduced by  sections 2  and 3 of ordinance 22 of 1975. At the same  time sections  2 and 3 of the amending Act make it clear that  substitution brought  about  by  those  sections shall be with effect from June 29, 1975. Sections 4, 5 and 6 of the amending Act read as under:           "4. In section 16A of the principal Act,-           (a) after  sub-section  (2),  the  following  sub-      section shall  be inserted, and shall be deemed to have      been inserted  with effect  from the  29th day of June,      1975, namely:-           ’(2A) If  the State Government makes a declaration      under sub-section  (2) that the detention of any person      in respect  of whom  a detention  order is  made by  an      officer subordinate to that Government is necessary for      dealing  effectively  with  the  emergency,  the  State      Government shall be 257      deemed to  have approved  such detention  order and the      provisions of  sub-section (3)  of section 3, in so far      as they relate to the approval of the State Government,      and of sub-section (4) of that section, shall not apply      to such detention order.’;           (b) for sub-section (5), the following sub-section      shall be  substituted, and shall be deemed to have been      substituted with  effect from  the 29th  day  of  June,      1975, namely:-           ’(5)  In   making  any  review,  consideration  or      reconsideration under  sub-section (2), sub-section (3)      or sub  section  (4),  the  appropriate  Government  or      officer may  act on  the basis  of the  information and      materials   in    its   or   his   possession   without      communicating or  disclosing any  such  information  or

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    materials to  the person concerned or affording him any      opportunity of  making any  representation against  the      making  under   sub-section  (2),   or  the  making  or      confirming under sub-section (3), or the non-revocation      under sub-section (4), of the declaration in respect of      him.,;           (c)  in sub-section (7), in clause (1),-           (1)  in the  opening portion,  for the  words  the                following  sub-section’,   the   words   ’the                following’ shall  be substituted and shall be                deemed to  have been  substituted with effect                from the 29th day of June, 1975;           (ii) in sub-section  (3), as  substituted by  that                clause, for the words ’forward to the Central                Government a report in respect of the order’,                the words  ’report the  fact to  the  Central                Government’  shall  be  substituted,  E;  and                shall be deemed to have been substituted with                effect from the 29th day of June, 1975;           (iii)after   sub-section    (3)   aforesaid,   the                following shall  be inserted.  and  shall  be                deemed to have been inserted with effect from                the 17th day of October, 1975 namely:-           ’(4) At  any time  after the  receipt of  a report      under  sub-section  (3),  the  Central  Government  may      require the  State Government to furnish to the Central      Government the grounds on which the order has been made      and such  other particulars  as. in  the opinion of the      State Government,  have a  bearing on the necessity for      the order.’,           (d) after  sub-section  (7),  the  following  sub-      sections shall be inserted, and shall be deemed to have      been inserted  with effect  from the 29th day’ of June,      1975, namely:-           ’(8) In  the case of any person in respect of whom      a declaration has been made by a State Government under      sub-section (2)  or a  declaration has  been made  by a      State Government  or an  officer subordinate  to it  or      confirmed by  the State  Government  under  sub-section      (3), or  a declaration  has not been revoked by a State      Government under sub-sec 19-833 SCI/76. 258      tion (4),  the  Central  Government  may,  whenever  it      considers it  necessary so  to do,  require  the  State      Government to  furnish to  the Central  Government  the      information and  materials on  the basis  of which such      declaration has  been made or confirmed, or not revoked      as the  case may  be, and  such other  information  and      materials as the Central Government may deem necessary.           (9)  Notwithstanding  anything  contained  in  any      other law or any rule having the force of law,-           (a) the  grounds on which an order of detention is      made or  purported to  be made  under section 3 against      any person  in respect  of whom  a declaration  is made      under  sub-section  (2)  or  sub-section  (3)  and  any      information or  materials on  which such  grounds or  a      declaration under sub-section (3) or the non-revocation      under sub-section (4) of a declaration are based, shall      be treated as confidential and shall be deemed to refer      to matters  of State  and  to  be  against  the  public      interest to  disclose and save as otherwise provided in      this Act, no one shall communicate or disclose any such      ground,  information  or  immaterial  or  any  document      containing such ground, information or material;

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         (b) no  person against  whom an order of detention      is made  or purported  to be made under section 3 shall      be entitled  to the  communication or disclosure of any      such ground,  information or material as is referred to      in clause  (a) or the production to him of any document      containing such ground, information or material.’           5. In  section 18  of the  principal Act,  for the      words ’detained  under this  Act’, the words and figure      ’in respect of whom an order is made or purported to be      made under  section 3’  shall be substituted, and shall      be deemed to have been substituted with effect from the      25th day of June, 1975.           6. Any  act or  thing done  or purporting  to have      been done; before the 16th day of November, 1975, under      the principal Act in respect of any person against whom      an order  of detention  was made  under that  Act on or      after the  25th day  of June, 1975 or in respect of any      such order  of detention  shall, for  all purposes,  be      deemed  to   be  as  valid  and  effective  as  if  the      amendments made  to the principal Act by sections 2 and      3, and clause (a) of section 4, of this Act had been in      force at all material times."      During the  pendency of  these petitions  under article 226 of  the Constitution of India before the High Courts for issue of  writs of habeas corpus, it was contended on behalf of the  Union of  India and  the States  that in view of the Presidential order  dated June  27, 1975  under article  359 suspending the  right of  all persons  to move any court for the enforcement  of the  rights conferred  by articles 14 21 and 22  of the Constitution, petitions for issue of writs of habeas corpus  were not  maintainable. Particular stress was laid upon the fact that 259 the right  to move  the court  for enforcement  of the right under article  21 had been suspended and as such no petition for a  writ of  habeas corpus  could be  proceeded with. The above mentioned  Presidential order  was  stated  to  be  an absolute bar  to the  judicial  security  of  the  detention orders. This  contention did  not find  favour with the High Courts and  they held  that despite  the  said  Presidential order the petitions were maintainable and could be proceeded with. Although  opinions were  not unanimous on the point as to whether  the High  Courts should  without  examining  the individual facts  of each  case go  into the question of the area of  the judicial  scrutiny and if so, what was the area of the  judicial scrutiny,  all the  nine High  Courts which dealt with  the matter  came  to  the  conclusion  that  the Presidential order  did not  create an  absolute bar  to the judicial scrutiny of the validity of the detention. The nine High Courts are:           (1) Delhi           (2) Karnataka           (3) Bombay (Nagpur Bench)           (4) Allahabad           (5) Madras           (6) Rajasthan           (7) Madhya Pradesh           (8) Andhra Pradesh           (9) Punjab and Haryana.      In these appeals before us, learned Attorney-General on behalf of  the appellants  has drawn  our attention  to  the difference in  phraseology of  the Presidential  order dated June 27,  1975 and  the earlier  Presidential  orders  dated November 3, 1962 and November 16, 1974 and has urged that in view of  the absolute  nature of  the Presidential  order of

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June 27,  1975, petition  for a writ of habeas corpus is not maintainable.      There can be no doubt that the Presidential order dated June 27,  1975 has  been worded  differently compared to the earlier Presidential  orders which  were issued under clause (1) of  article 359 and that there has been a departure from the pattern  which used  to be  adopted while  issuing  such orders. The  Presidential order  dated November 16, 1974 has already been  reproduced earlier.  Presidential order  dated November 3,  1962 issued  under clause (1) of article 359 of the Constitution read as under:                            "ORDER              New Delhi, the 3rd November, 1962      G.S.R. 146-In  exercise  of  the  powers  conferred  by      clause (1)  of article  359  of  the  Constiution,  the      President hereby  declares that the right of any person      to move  any court  for the  enforcement of  the rights      conferred  by   article  21   and  article  22  of  the      Constitution shall  remain  suspended  for  the  period      during which the Proclamation of Emergency 260      issued under  clause (1)  of article 352 thereof on the      26th October, 1962 is in force, if such person has been      deprived of  any such rights under the Defence of India      ordinance, 196  (4 of  1962) or  any rule or order made      thereunder." on November 6, 1962, the rules framed under the ordinance by the Central  Government were published. On November 11, 1962 the Presidential  order reproduced above was amended and for the words  and figure  "article 21",  the words  and figures "articles 14  and 21" were substituted. The Defence of India ordinance was  subsequently replaced by the Defence of India Act and  the rules framed under the ordinance were deemed to have been  framed  under  the  Act.  Perusal  of  the  above Presidential order of 1962 shows that what was suspended was the  right   of  any  person  to  move  any  court  for  the enforcement of  rights conferred  by articles 14, 21 and 22. The suspension was, however, conditioned by the circumstance that such  person had been deprived of such rights under the Defence of  India Act  or any rule or order made thereunder. It was  plain that in case a detention order was made or any other action  was taken  not under  the  provisions  of  the Defence of  India Act  or any rule or order made thereunder, the same  could not enjoy the protection of the Presidential order under  article 359. Another effect of the Presidential order was  that as long as the proclamation of emergency was in force,  the validity  of the provisions of the Defence of India Act  or the  rules or orders made thereunder could not be assailed on the ground of being violative of articles 14, 21 and  22. It  is also  clear that  in view of article 358, while a  proclamation of emergency was in operation, nothing in article  19 could  have restricted the power of the State to make  any law  or to  take any executive action which the State could but for the provisions contained in Part III was competent to make or to take.      Likewise, under  the Presidential  order dated November 16, 1974 which has been already reproduced earlier, what was suspended was the right to move any court with respect to an order of detention which might have been made or which might be made  thereafter under section 3(1)(c) of the Maintenance of Internal  Security Act  as amended for the enforcement of rights conferred by articles 14, 21 and clause (4) to (7) of article 22  of the  Constitution. Proceedings pending in any court for  the enforcement  of any  of the  aforesaid rights with respect to orders of detention made under section 3 (1)

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(c) too  were suspended.  It was  plain from the language of the Presidential  order that there could be no suspension of the  right  mentioned  in  the  Presidential  order  if  the detention order  could not  be shown to have been made under section 3(1)(c)  of MISA  because an order not under section 3(1) (c) was outside the Presidential order.      The Presidential  order of 1962 under article 359(1) of the Constitution  came to be considered by this Court in the case of  Makhan Singh  v. State of Punjab.(1) Gajendragadkar J. (as  he then  was) speaking  for six  out of the Bench of seven Judges  of this  Court observed while dealing with the effect of  the Presidential  order on  a petition  of habeas corpus:      (1) [1964] 4 S. C. R. 797. 261           "We have  already seen  that the right to move any      court   which is  suspended  by  Art.  359(1)  and  the      Presidential order issued under it is the right for the      enforcement of such of the rights conferred by Part III      as may be mentioned in the order. If in challenging the      validity of his detention order, the detenu is pleading      any right  outside the  rights specified  in the order,      his right  to move  any court  in that  behalf  is  not      suspended,  because  it  is  outside  Art.  359(1)  and      consequently outside the Presidential order itself. Let      us take  a case  where a  detenu has  been detained  in      violation of  the mandatory  provisions of  the Act. In      such a  case, it  may be  open to the detenu to contend      that his  detention is  illegal for the reason that the      mandatory provision  of the  Act have been contravened.      Such a plea is outside Art. 359(1) and the right of the      detenu to  move for his release on such a ground cannot      be affected by the Presidential order.           Take also  a case where the detenu moves the Court      for a  writ of  habeas corpus  on the  ground that  his      detention i  has been  ordered malafide.  It is  hardly      necessary to  ; emphasise  that the exercise of a power      malafide  is  wholly  outside  the  scope  of  the  Act      conferring the  power and  can ; always be successfully      challenged. It  is true that a mere allegation that the      detention is  malafide would  not be enough; the detenu      will have  to prove the malafides. But if the malafides      are  alleged,  the  detenu  cannot  be  precluded  from      substantiating his  plea  on  the  ground  of  the  bar      created by Art. 359(1) and the Presidential order. That      is another kind of plea which is outside the purview of      Art. 359(1)."      It was further observed :      "It is  only in  regard to  that class of cases falling      under s. 491(1) (b) where the legality of the detention      is challenged  on grounds  which fall under Art. 359(1)      and Presidential  order that  the bar would operate. In      all other  cases falling  under s. 491(1) the bar would      be inapplicable  and proceedings taken on behalf of the      detenu will have to be tried in accordance with law. We      ought to  add that  these categories of pleas have been      mentioned by  us by  way of illustrations, and so, they      should not be read as exhausting all the pleas which do      not fall within the purview of the Presidential order.           There is  yet another ground on which the validity      of the  detention may be open to challenge. If a detenu      contends that  the operative provision of the law under      which he is detained suffers from the vice of excessive      delegation and  IS, therefore,  invalid, the  plea thus      raised by the detenu cannot at the threshold be said to

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    be barred by the Presi- 262      dential order.  In terms,  it is  not a  plea which  is      relatable to  the fundamental  rights specified  in the      said order.  It is  a plea  which is independent of the      said rights and its validity must be examined."      In the  case  of  State  of  Maharashtra  v.  Prabhakar Pandurang Sangzgiri  & Anr(1). Subba Rao J. (as he then was) speaking for the Constitution bench of this Court observed:      "Article  358   of  the   Constitution   suspends   the      provisions of  Art. 19  of Part III of the Constitution      during the  period the  proclamation of emergency is in      operation; and  the order passed by the President under      Art. 359 suspended the enforcement, inter alia, of Art.      21 during  the period  of the  said emergency.  But the      President’s order  was a  conditional one. In effect it      said that  the right  to move  the High  Court  or  the      Supreme Court  remained suspended  if such a person had      been deprived of his personal liberty under the Defence      of  India   Act,  1962,  or  any  rule  or  order  made      thereunder. If  a person  was deprived  of his personal      liberty not under the Act or a rule or order made there      under but  in contravention  thereof, his right to move      the said  Courts in that regard would not be suspended.      The question,  therefore, in  this case  is whether the      first respondent’s liberty has been restricted in terms      of the  Defence of  India  Rules  where  under  he  was      detained. If  it was in contravention of the said Rules      he would  have the  right to  approach the  High  Court      under Art. 226 of the Constitution."      Similar view  was expressed  in the  case  of  Dr.  Ram Manohar Lohia  v. State  of Bihar & Ors.(2) Sarkar J. (as be then was)  in that  case observed  that where  a person  was detained in  violation OF  the mandatory  provisions of  the Defence of  India Act,  his right  to move the court was not suspended. Hidayatullah  and Bachawat  JJ. referred  to  the fact that  the Presidential order did not say that even if a person was  proceeded against  in breach  of the  Defence of India Act  or the  rules, he  could not  move the  court  or complain that  the Act  and the  Rules under colour of which some action  was taken  did not warrant it. The Presidential order  was   held  to   have  not  intended  to  condone  an illegitimate  enforcement  of  the  Defence  of  India  Act. Raghubar Dayal  J. held  that the  Court could  go into  the question as to whether the District Magistrate exercised the power of detention under the Defence of India Rules bonafide and in accordance with the rules. Mudholkar J. Observed that if a  detenu contends  that the order. though it purports to be under  rule 30(1)  of the Defence of India Rules, was not competently made,  this Court had a duty to enquire into the matter. Sarkar,  Hidayatullah, Mudholkar and Bachawat JJ. On consideration of  the material before them found that as the detention order  had been  made with  a view  to present the detenu  from   acting  in   a  manner   prejudicial  to  the maintenance of      (1) [1966] 1 S. C. R. 702.      (2) [1966] 1 S. C. R. 709 263 law and  order and not public order, as contemplated by rule 30, the  detention order was not in conformity with law. The petitioner in  that case  was accordingly directed to be set at liberty.      The observations  in the  cases referred  to above show that the  validity of the detention orders could be assailed despite the  Presidential orders  of: 1962  and  1974  under

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article 359  in case  the right  relied  upon  was  not  one covered  by   these  Presidential   orders.  The  protection afforded by  those Presidential  orders was not absolute, it Was conditional  and confined to ruling out the challenge to detention  orders   and  other   actions  taken   under  the provisions mentioned  in those  Presidential orders  on  the score of  contravention of  the articles  specified in those orders. If  the detention  of a detenu was not in accordance with the  provisions mentioned  in the  Presidential orders, the Presidential orders did not have the effect of affording protection to  the detention order and it was permissible to challenge the  validity of  the detention on the ground that it had  not been  made under the specified provisions but in contravention of those provisions.      We may  now deal with the Presidential order dated June 27,  1975   with  which   we  are   concerned.  Unlike   the Presidential orders  under clause  (1) of article 359 issued earlier, this  Presidential order  makes no reference to any detention order made under any specified provision. It seeks to impose  a blanket  suspension of the right of any person, including a foreigner, to move any court far the enforcement of the  rights conferred  by articles  14, 21  and 22 of the Constitution and of all proceedings pending in any court for the enforcement of the above mentioned rights for the period during which  the proclamation of emergency is in force. The observations which  were made  by this  court in  the  cases referred to  above in  the context of the phraseology of the earlier Presidential  orders of  1962 and  1974  namely  the detention orders made under specified provisions, cannot now be  relied   upon  while   construing  the   ambit  of   the Presidential order of June 27, 1975.      The difference in phraseology of the Presidential order dated June  27, 1975  and that  of the  earlier Presidential orders would  not,  however,  justify  the  conclusion  that because of the new Presidential order dated June ’27, 1975 a detention order need not comply with the requirements of the law providing  for preventive  detention. Such  a  detention order would  still be  liable to be challenged in a court on the ground  that it  does not comply with the requirement of law for preventive detention if ground for such challenge be permissible in  spite  of  and  consistently  with  the  new Presidential order.  The effect of the change in phraseology would only  be that such of the observations which were made in the  cases mentioned above in the context of the language of the  earlier Presidential  orders cannot  now  be  relied upon. Reliance,  however,  can  still  be  placed  upon  the observations made  in those cases which were not linked with the phraseology of the earlier Presidential orders.      Question then  arises as  to what  is the effect of the suspension of  the right  of a  person to move any court for the enforcement of rights 264 conferred by articles 14, 21 and 22 of the Constitution. One obvious result  of the  above is  that no  one can rely upon articles 14,  21 and  22 with a view to seek relief from any court. According  to the stand taken by the learned Attorney General, the  effect of  the suspension  of the  right of  a person to  move any  court for  the enforcement of the right conferred by  article 21  is that  even  if  the  order  for detention has  been made  without the  authority of  law, no redress can  be sought from the court against such detention order. Article 21 of the Constitution reads as under:      "No person  shall be  deprived of  his life or personal      liberty except  according to  procedure established  by      law."

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It is  urged that article 21 is the sole repository of one’s right to  life or  personal liberty. The moment the right to move any  court for  enforcement of article 21 is suspended, no one  can, according  to the  submission, complain  to the court of  deprivation of  life or  personal liberty  for any redress sought  from  the  court  on  that  score  would  be enforcement of  article 21.  Petition under  article 226 for the issue  of a  writ of  habeas corpus,  it is contended by learned Attorney  General,  is  essentially  a  petition  to enforce the  right of  personal liberty  and as the right to move any court for the enforcement of the right conferred by article 21  is suspended,  no relief  can be  granted to the petitioner in such petition.      In order  to assess the force of the above argument, it may be  necessary to  give the background and the history of article  21.   In  the   original  draft   of   the   Indian Constitution, in  the article which now stands as article 21 the words  used were "in accordance with due process of law" instead of  the words "according to procedure established by law." The  concept of expression "due process of law" or its equivalent "law  of the  land" traces  its lineage  for back into the  beginning of the 13th century A.D. The famous 39th chapter of  the Magna Carta provides that "no free man shall be taken  or imprisoned  or disseized, or outlawed or exiled or in  any way  destroyed; nor shall we go upon him nor send upon him  but by the lawful judgment of his peers and by the law of  the land."  Magna Carta  as  a  charter  of  English liberty was confirmed by successive English monarchs. It was in one of these confirmations (28 Ed. III, Chap. 3) known as "Statute of Westminster of the liberties of London" that the expression "due  process of  law" appears  to have been used for the  first time. Neither of the expressions "due process of law" or "law of the land" was explained or defined in any of the documents, but on the authority of Sir Edward Coke it may be said that both the expressions have the same meaning. In substance,  they guaranteed  that persons  should not  be imprisoned without proper indictment and trial by peers, and that property  should not  be seized  except in  proceedings conducted in  due form  in which  the owner or the person in possession should  have an  opportunity to  show  cause  why seizure should  not be  made. The expression "due process of law" came  to be  a part of the US Constitution by the Fifth Amendment which  was adopted in 1791 and which provided that "no person shall be 265 deprived of life, liberty or property without due process of law." A  Similar  expression  was  used  in  the  Fourteenth Amendment in  1868. It has been said that few phrases in the law are  so elusive of exact apprehension as "due process of law." The United States Supreme Court has always declined to give a comprehensive definition of it and has preferred that its full  meaning should  be gradually  ascertained  by  the process of  inclusion and  exclusion in  the course  of  the decisions as  they arise.  The expression  "due  process  of law," as  used in  the US  Constitution, has  been taken  to impose a  limitation upon  the  powers  of  the  Government, legislative as  well as  executive and  judicial. Applied in England as protection against executive usurpation and royal tyranny, in  America it  became a  bulwark against arbitrary legislation. "Due  process of  law,"  according  to  Cooley, "means in  each particular  case such  an  exercise  of  the powers of Government as the settled maxims of law permit and sanction, and  under such  safeguards for  the protection of individual rights as those maxims prescribe for the class of cases to  which the one in question belongs" (Constitutional

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Limitations, Vol. II, p. 741).      ’Till about the middle of the 19th Century, due process clause was  interpreted as a restriction upon procedure, and particularly the judicial procedure, by which the Government exercises its power. Principally it related to the procedure by which  persons were  tried for  crimes and  guaranteed to accused persons the right to have a fair trial in Compliance with  well   established  criminal   proceedings.  The  same principle applied  to the  machinery or proceedings by which property rights  were adjudicated and by which the powers of eminent domain  and taxation  were  exercised.  During  this period  it  was  not  considered  to  have  any  bearing  on substantive  law  at  all.  Subsequently  view  came  to  be accepted that  the concept  of due  process of law protected rights  of  life,  liberty  and  property.  This  change  in judicial thinking  was influenced  in a great measure by the industrial development  leading  to  accumulation  of  large capital in  the hands of industrialists and the emergence of a definite  labouring  class.  What  constituted  legitimate exercise of  the powers  of legislation  now came  to  be  a judicial question  and no  statute was  valid unless  it was reasonable in the opinion of the Court. The US Supreme Court laid stress  upon the  word "due"  which occurs  before  and qualifies the expression "process of law." "Due" means "what is just  and proper"  according to  the circumstances  of  a particular case.  The word  introduces a variable element in the application  of the  doctrine, for what is reasonable in one set  of circumstances  may not  be so  in another set of circumstances. The  requirement of  due process  clause as a substantial restriction  on Government  control is  also now becoming  a  thing  of  the  past  and  the  rule  is  being restricted more  and more  to its original procedural aspect (see observations  of Mukherjea  J. in  the case  of  A.  K. Gopalan, (supra).      At the  time the  Constitution was  being drafted,  the Constitutional Adviser Mr. B. N. Rau had discussions with US Constitutional experts  some of  whom expressed  the opinion that power  of review  implied in due process clause was not only undemocratic because it 266 gave the  power of  vetoing legislation  to the  judges, but also threw  an unfair burden on the judiciary. This view was communicated by  Mr. Rau  to the  Drafting  Committee  which thereupon  substituted   the  words   "except  according  to procedure established  by law"  for words  "due process,  of law." In  dropping the  words  "due  process  of  law,"  the framers of  our Constitution  prevented the  introduction of elements of  vagueness, uncertainty  and changeability which had grown  round the  due process  doctrine  in  the  United States.  The   words  ’   except  according   to   procedure established by  law" were  taken  from  article  31  of  the Japanese Constitution,  according to  which "no person shall be deprived  of life  or  liberty  nor  shall  any  criminal liability  be   imposed,  except   according  to   procedure established by  law. The article is also somewhat similar to article 40(4)(1)  of Irish  Constitution, according to which no person  shall be deprived of his personal liberty save in accordance with  law." It was laid down in Gopalan’s case by the majority that the word "law" has been used in article 21 in the  sense of  State-made law and not as an equivalent of law  in   the  abstract   or  general  sense  embodying  the principles of natural justice. "The procedure established by law" was  held to mean the procedure established by law made by the  State, that  is to  say, the Union Parliament or the legislatures of  the States,  Law, it  was also  observed by

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Mukherjea J.,  meant a  valid  and  binding  law  under  the provisions  of  the  Constitution  and  not  one  infringing fundamental rights.      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. Question then  arises as  to whether  the rule  that no  one shall be  deprived of  his life  or personal liberty without the authority  of law  still survives  during the  period of emergency despite  the Presidential  order r  suspending the right to  move any  court for  the enforcement  of the right contained in  article 21.  The answer  to this  question  is linked with the answer to the question as to whether article 21 is  the sole repository of the right to life and personal liberty. After giving the matter my earnest consideration, I am of the opinion that article 21 cannot be considered to be the sole  repository of  the  right  to  life  and  personal liberty. The  right to life and personal liberty is the most precious  right  of  human  beings  in  civilised  societies governed by  the rule  of  law.  Many  modern  constitutions incorporate certain  fundamental rights,  including the  one relating to  personal freedom.  According to Blackstone, the absolute rights  of Englishmen  were the  rights of personal security,  personal   liberty  and   private  property.  The American Declaration  of Independence (1776) states that all men are  created equal,  and among  their inalienable rights are life,  liberty, and the pursuit of happiness. The Second Amendment to  the US   Constitution  refers  inter  alia  to security of  person, while  the  Fifth  Amendment  prohibits inter alia  deprivation of  life  and  liberty  without  due process of  law. The  different Declarations of Human Rights and fundamental  freedoms have  all  laid  stress  upon  the sanctity 267 of life  and liberty.  They have  also given  expression  in varying words   to  the  principle  that  no  one  shall  be deprived of  his life  or liberty  without the  authority of law. The  International  Commission  of  Jurists,  which  is affiliated to  Unesco, has been attempting with considerable success to  give material  content to  "the Rule of Law," an expression  used  in  the  Universal  Declaration  of  Human Rights.  One  of  its  most  notable  achievements  was  the Declaration of  Delhi, 1959.  This resulted  from a Congress held in  New Delhi  attended by  jurists from  more than  50 countries, and  was based  on a  questionnaire circulated to 75,000 lawyers.  "Respect for  the supreme  value  of  human personality" was stated to be the basis of all law (see page 21 of  the Constitutional  and Administrative Law by o. Hood Phillips, 3rd Ed.      Freedom under  law, it  may be  added, is  not absolute freedom. It has its own limitations in its own interest, and can properly be described as regulated freedom. In the words of Ernest  Barker, (1)  the truth that every man ought to be free  has   for  its   other  side   the  complementary  and consequential truth that no man can be absolutely free. that (ii) the  need of  liberty for each is necessarily qualified and conditioned  by the  need of liberty for all: that (iii) liberty in the State or legal liberty, is never the absolute liberty of all: that (iv) liberty within the State is thus a relative and  regulated liberty; and that (v) a relative and regulated liberty;  actually, operative  and enjoyed.  is  a liberty greater in amount an absolute liberty could ever be-

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if indeed  such liberty  could ever exist, or even amount to anything more than nothing at all.      Rule of  law is  the antithesis of arbitrariness. Plato believed  that   if  philosophers   were  kings   or   kings philosophers government  by  will  would  be  instrinsically superior to  government by  law, and he so proclaimed in his Republic. Experience  eventually taught  him that this ideal was not  obtainable and that if ordinary men were allowed to rule by  will alone  the interests of the community would be sacrificed to  those of  the ruler. Accordingly. in the Laws he modified  his position  and urged  the acceptance  of the "second best",  namely government  under law. Since then the question of  the relative  merits of  rule by law as against rule by  will has  been often  debated. In the aggregate the decision has  been in  favour of  rule by  law. On occasions however, we  have slipped  back into government by will only to return  again, sadder  and wiser  men, to Plato’s "second best" when  the hard  facts of human nature demonstrated the essential egotism  of men  and the  truth of the dictum that all power  corrupts and  absolute power corrupts absolutely. Bracton’s dicta  that if the king has no bridle one ought to be put  upon him, and that although the king is under no man he is  under God and the law Fortescue’s insistence that the realm of England is a reginem politicium et regale and hence limited by law. Coke’s observation that "Magna Carta is such a fellow  that he  will have  no sovereign"; these are but a few of  the beacons  lighting the  way to the triumph of the rule of  law (see  pages 3-6  of the Rule of Law by  Malcolm Macdonald &  ors.). Rule  of law is now the accepted norm of all civilised societies. Even if there have been deviations 268 from the  rule of  law, such deviations have been covert and disguised for  no  government  in  a  civilized  country  is prepared to  accept the  ignominy of  governing without  the rule of law. As observed on page 77 of Constitutional Law by Wade and  Phillips, 8th  Ed., the rule of law has come to be regarded as  the mark  of a  free  society.  Admittedly  its content is different in different countries, nor is it to be secured  exclusively   through  the   ordinary  courts.  But everywhere  it   is  identified  with  the  liberty  of  the individual. It  seeks to  maintain  a  balance  between  the opposing notions  of individual liberty and public order. In every State  the problem  arises of reconciling human rights with the  requirements of  public interest. Such harmonising can only  be attained by the existence of independent courts which can  hold the  balance between  citizen and  State and compel Governments to conform to the law.      Sanctity of life and liberty was not something new when the Consitution was drafted. It represented a fact of higher values which  mankind began to cherish in its evolution from a  state  of  tooth  and  claw  to  a  civilized  existence. Likewise, the principle that no one shall be deprived of his life and  liberty without  the authority  of law was not the gift of  the Constitution.  It was  a necessary corollory of the concept relating to the sanctity of life and liberty; it existed and was in force before the coming into force of the Constitution. The  idea  about  the  sanctity  of  life  and liberty as  well as  the principle  that  no  one  shall  be deprived of  his life  and liberty  without the authority of law are  essentially two  facets of  the same  concept. This concept grew  and acquired  dimensions in  response  to  the inner  urges   and  nobler   impulses  with   the  march  of civilisation. Great  writers and  teachers, philosophers and political thinkers nourished and helped in the efflorescence of the  concept by  rousing the conscience of mankind and by

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making it  conscious of  the necessity  of  the  concept  as necessary social discipline in self-interest and for orderly existence. According  even to  the theory  of social compact many aspects of which have now been discredited, individuals have surrendered  a part  of their  theoretically  unlimited freedom in  return or the blessings of the government. Those blessings include  governance  in  accordance  with  certain norms in  the matter  of life  and liberty  of the citizens. Such norms  take the  shape of  the rule of law. Respect for law, we  must bear  in mind,  has a mutual relationship with respect for  government. Erosion  of the respect for law, it has accordingly  been said,  affects  the  respect  for  the government. Government  under the  law means, as observed by Macdonald, that  the power to govern shall be exercised only under  conditions   laid  down  in  constitutions  and  laws approved by  either the people or their representatives. Law thus emerges  as a norm limiting the application of power by the government  over the  citizen or  by citizens over their fellows. Theoretically  all men are equal before the law and are equally  bound by  it regardless of their status, class, office or  authority. At the same time that the law enforces duties it  also protects rights, even against the sovereign. Government under  law thus  seeks the  establishment  of  an ordered community  in which  the individual,  aware  of  his rights and  duties, comprehends  the area of activity within which, as a responsible and intelligent person, he may 269 freely order  his life, secure from interference from either the government  or other  individuals (see Rule of Law, page 6). To quote further from Professor Macdonald:           "It   is    clear   enough   that   high   echelon      administrators are  understandably impatient  with  the      restraints imposed upon them by the traditional concept      of  the   rule  of   law   as   developed   by   Dicey.      Administrators deal  with the  implementation of highly      technical and  complex matters  involving the immediate      interests of many citizens, To accomplish this they are      granted wide  discretion in  the use  of administrative      power to  effectuate broad  policies laid  down by  the      legislators. It  is natural  that they should desire to      have the  conflicts which  arise as  the result  of the      exercise of  their discretion  adjudicated by tribunals      composed of  experts acquainted with the details of the      matters at issue, rather than by judges trained only in      the law.  Hence their  resistance to judicial review of      administrative  ’findings   of  fact’   as  opposed  to      ’findings of law’. The very things which a court of law      prizes-rules of  evidence, common  law procedures, even      due process-frequently  appear to the administrators as      obscurantist devices  employed by  those who oppose the      very principle  of  the  policy  he  is  attempting  to      effectuate.  Often,   secretly  if   not  openly,   the      administrator  considers   his   policy   to   be   the      incarnation of  the best interests of the people, or at      least of their best interests if they really understood      them, and  hence considers  himself as  arrayed on  the      side of  progress and  light against the dark forces of      reaction. E           Thus our  ’wonderland of bureaucracy’, as Beck has      called it,  has sought  autonomy from  the  traditional      rule of  courts and law. If it should succeed we should      then indeed  be confronted  with  a  vital  segment  of      govern mental power which would have escaped from legal      control and  become arbitrary  in its  acts. To prevent      this we  have subjected  the acts  of administrators to

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    challenge in  the courts  on the  basis of ultra vires,      and provided  for  judicial  review  of  administrative      tribunals’ finding of law." (see ibid page 8) .      To use  the words  of  Justice  Brandeis(1)  with  some modification, experience  should teach  us to be most on our guard to  protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of  their liberty  by evil-minded persons. Greatest danger to  liberty lies  in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the rule of law      Even in  the absence of article 21 in the Constitution, the State  has got  no power to deprive a person of his life or liberty without (1) Olmstead v. United States, 277 U. S. 438 (1928). 270 the authority  of law.  This is  the essential postulate and basic assumption  of the  rule of  law and not of men in all civilised  nations.   Without  such  sanctity  of  life  and liberty, the  distinction between  a lawless society and one governed by  laws would  cease  to  have  any  meaning.  The principle that  no one  shall be  deprived of  his  life  or liberty without  the authority  of  law  is  rooted  in  the consideration  that   life   and   liberty   are   priceless possessions which cannot be made the plaything of individual whim and  caprice and  that any  act which has the effect of tampering With life and liberty must receive sustenance from and  sanction   of  the   laws  of   the  land.  Article  21 incorporates an essential aspect of that principle and makes it part  of the fundamental rights guaranteed in Part III of the Constitution.  It does  not, however,  follow  from  the above that  if article  21 had not been drafted and inserted in Part  III, in  that event  it would have been permissible for the  State to  deprive a  person of  his life or liberty without the  authority of law. No case has been cited before us to  show  that  before  the  coming  into  force  of  the Constitution or  in countries  under rule of law where there is no  provision corresponding  to article  21, a  claim was ever sustained  by the  courts that  the State can deprive a person of  his life or liberty without the authority of law. In fact,  any suggestion  to such  a claim was unequivocally repelled. In  the case of James Sommersett(1) Lord Mansfield dealt with a case of a negro named Sommersett, who was being taken in  a ship to Jamaica for sale in a slave market. When the ships  anchored at London port, a habeas corpus petition was presented  by some  Englishmen who  were  moved  by  the yelling and  cries  of  Sommersett.  In  opposition  to  the petition the  slave trader  took the  plea that there was no law  which   prohibited  slavery.  Lord  d  Mansfield  while repelling this  objection made  the following observation in respect of  slavery which  is one  of  the  worst  forms  of deprivation of personal freedom:           "It is  so odious  that nothing can be suffered to      support it  but positive  law: whatever inconveniences,      therefore, may  follow from this decision, I cannot say      this case is allowed or approved by the law of England;      and therefore the black must be discharged." In other case, Fabriqas v. Mostyn(2) Lord Mansfield observed on page 173:           "To lay down in an English court of Justice that a      Governor acting  by virtue of Letters Patent. under the      Great Seal,  is accountable only to God and his own con      science; that  he is absolutely despotic and can spoil,      plunder. and  affect His  Majesty’s subjects,  both  in      their  liberty   and  property,  with  impunity,  is  a

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    doctrine that cannot be maintained" The above  observations were  relied upon  in the  matter of Ameer Khan(3).  I may also refer to the observations of Lord Atkin in the      (1) [1772], 16 Cr. Pract. 289.      (2) 1 Cowp., 161.      (3) 6 Bengal Law Reports 392. 271 case  of   Eshuqbavi  Eleko  v.  Officer  Administering  the Government of Nigeria (1)           "In  accordance  with  British  jurisprudence,  no      member of  the executive can interfere with the liberty      or  property  of  ;3  British  subject  except  on  the      condition that  he can  sup port  the legality  of  his      action before  a  Court  of  Justice.  And  it  is  the      tradition of  British Justice  that Judges  should  not      shrink from  deciding such  issues in  the face  of the      executive The above rule laid down in Eleko’s case was followed by the High Courts  in India  before the  coming into  force of the Constitution in  Prabhakar Kesheo Tare & ors. v. Emperor(2), Vimlabai Deshpande  v. Emperor(2), Jitendranath Ghosh v, The Chief Secretary  to the  Government of  Bengal(4) and In re: Banwari Lal  Roy &  ors.(5). The  rule laid  down in Eleko’s case was  also followed  by the Constitution Benches of this Court after  the coming  force of  the Constitution  in  the cases of Bidi Supply Co. v. The Union of India & ors.(6) and Basheshar Nath  v. The  Commissioner of  Income-tax, Delhi & Rajasthan & Anr.(7).      I am unable to subscribe to the view that when right to enforce the  right under article 21 is suspended, the result would be  that there  would be no remedy against deprivation of a  person’s life or liberty by the State even though such deprivation is  without the  authority of  law  or  even  in flagrant violation  of the  provisions of law. The right not to  be  deprived  of  one’s  life  or  liberty  without  the authority of  law was  not the creation of the Constitution. Such right  existed before the Constitution came into force. The fact that the framers of the Constitution made an aspect of such  right a part of the fundamental rights did not have the effect of exterminating the independent identity of such right and  of making article 21 to be the sole repository of that right.  Its real  effect was to ensure that a law under which a  person can  be deprived  of his  life  or  personal liberty should  prescribe a  procedure for  such deprivation or, according  to the  dictum laid  down by Mukherjea, J. in Gopalan’s case, such law should be a valid law not violative of  fundamental   rights  guaranteed  by  Part  III  of  the Constitution. Recognition as fundamental right of one aspect of the  pre-Constitutional right  cannot have  the effect of making things less favourable so far as the sanctity of life and personal  liberty is  concerned compared to the position if an  aspect of  such right  had  not  been  recognised  as fundamental  right   because   of   the   vulnerability   of fundamental rights  accruing from  article 359.  I  am  also unable to agree that in view of the Presi-      (1) AIR 1931 P.C. 248.      (2) AIR 1943 Nag. 26.      (3) A. I. R. 1945 Nag. 8.      (4) I. L. R. 60 Cal. 364.      (5) 48 C. W. N. 766.      (6) [1956] S. C. R. 267.      (7) [1959] Supp. (1) S. C. R. 528. 272 dential order in the matter of sanctity of life and liberty,

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things would be worse off compared to the state of law as it existed before the coming into force of the Constitution.      The case  of Dhirubha  Devisingh Gohil  v. The State of Bombay(1) upon  which reliance  has been  placed by  learned Attorney General  cannot be  of much  assistance to  him. In that case  this Court  held that  the validity of the Bombay Taluqdari Tenure Abolition Act, 1949 cannot be questioned on the ground  that it  takes away  or abridges the fundamental rights conferred by the Constitution of India in view of the fact that   Act  had been inserted, in the Ninth Schedule of the Constitution.  This Court  also repelled  the contention that the  said Act  was violative  of  section  229  of  the Government of India Act, 1935 because, in the opinion of the Court, the  right secured by section 229 was lifted into the formal category  of a  fundamental right. The principle laid down in  that case  cannot be  invoked in  a case  like  the present wherein the area covered by the right existing since before the  Constitution is  wider than  the area covered by the fundamental  right and  the fundamental right deals with only an  aspect of  such pre-existing  right. Moreover,  the correctness of  the view  taken in  the above  case,  in  my opinion, is  open  to question in view of the later decision of Makhan  Singh (supra)  decided by a Bench of seven Judges wherein it  has been  observed on  page 821  that after  the coming into  force of  the Constitution,  a detenu  has  two remedies, one  under  article  226  or  article  32  of  the Constitution and  another under  section 491  of the Code of Criminal  Procedure.   Makhan  Singh’s  case,  as  discussed elsewhere, shows  that the  remedy under an earlier statuory provision would not get obliterated because of the identical remedy by a subsequent Constitutional provision and that the two can co-exist without losing their independent identity.      Preventive detention,  though not  strictly punishment, is akin  to punishment,  because of the evil consequences of being deprived  of one’s  liberty. No one under our laws can be deprived  of his life or liberty without the authority of law. This  would be  evident from  the fact that if a person without the authority of law takes another person’s life, he would  normally   be  guilty  of  the  offence  of  culpable homicide. Likewise,  if a  person deprives  another  of  his liberty by  confining him,  he would  in the  absence of any valid justification,  be guilty  of wrongful confinement. It is for  that reason  that  courts  have  insisted  upon  the authority of law for a public servant to take away someone’s life or liberty. An executioner carrying out the sentence of death imposed  by the  court would not commit the offence of homicide, because  he is  executing  the  condemned  man  in obedience to a warrant issued by a court having jurisdiction in accordance  with the  law of the land. Likewise, a jailor confining a  person sentenced  to imprisonment is not guilty of the  offence of  wrongful confinement. The principle that no one  shall be deprived of his life or liberty without the authority of  law stems not merely from the basic assumption in every  civilised society  governed by  the rule of law of the      (1) [1955] 1 S. C. R. 691. 273 sanctity of life and liberty, it flows equally from the fact that under  our penal  laws no one is empowered to deprive a person of his life or liberty without the authority of law.      The fact  that  penal  laws  of  India  answer  to  the description of  the word  "law",  which  has  been  used  in article 21  would not  militate against  the inference  that article 21  is not  the sole repository of the right to life or personal liberty and that the principle that no one shall

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be deprived  of his  life or  personal liberty  without  the authority of  law flows from the penal laws of India. Nor is it the  effect of  article 21  that penal laws get merged in article 21 because of the fact that they constitute "law" as mentioned in  article 21   for  were it so the suspension of the right  to move  a court  for enforcement  of fundamental right  contained   in  article   21  would  also  result  in suspension of the right to move any court for enforcement of penal laws      It has  been pointed  out above  that even  before  the coming into  force of  the Constitution,  the position under the common  law both  in England  and in  India was that the State could  not deprive  a person  of his  life and liberty without the  authority of  law. The  same was  the  position under the  penal laws of India. It was all offence under the Indian Penal Code, as already mentioned, to deprive a person of his  life or  liberty unless such a course was sanctioned by the  laws of  the land.  An action  was also maintainable under the  law of torts for wrongful confinement in case any person was  deprived of  his personal  liberty  without  the authority of law. In addition to that, we had section 491 of the Code of Criminal Procedure which  provided the remedy of habeas corpus  against detention  without the  authority  of law. Such  laws continued  to remain  in force  in  view  of article 372 after the coming into force of the Constitution. According to  that article,  notwithstanding the  repeal  by this Constitution  of the  enactments referred to in article 395  but   subject  to   the  other   provisions   of   this Constitution, all the law in force in the territory of India immediately before  the commencement  of  this  Constitution shall continue in force therein until altered or repealed or amended  by     competent  legislature  or  other  competent authority. The  law in force, as observed by the majority of he Constitution  Bench in  the ease of Director of Rationing and Distribution  v. The  Corporation  of  Calcutta  &  Ors. include not  only the statutory law but also custom or usage having the  force of  law as also the common law  of England which was  adopted as  the law  of the  country  before  the coming into  force of  the Constitution.  The position  thus seems  to  be  firmly  established  that  at  the  time  the Constitution came into force, the legal position was that no one could  be deprived  of his  life or  liberty without the authority of law.      It is  difficult  to  accede  to  the  contention  that because of article 21 of the Constitution, the law which was already in  force that  no one could be deprived of his life or liberty without the authority of law      (1) [1961] 1 S. C. R. 158. 18-833SCI/76 274 was obliterated  and ceased  to remain  in force. No rule of construction  interpretation  warrants  such  an  inference. Section 491  of the  Code of Criminal Procedure continued to remain an  integral part  of that Code despite the fact that the High  Courts were vested with the power of issuing writs of habeas  corpus under  article 226. No submission was ever advanced on  the score  that the said provision had become a dead letter  of unforceable because of the fact that article 226 was made a part of the Constitution. Indeed, in the case of Malkha  Singh (supra)  Gajendragadkar J. speaking for the majority stated  that after  the coming  into force  of  the Constitution, a  party could  avail of  either the remedy of section 491  of the  Code of  Criminal Procedure  or that of article 226  of the  Constitution.  The  above  observations clearly go  to show  that constitutional  recognition of the

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remedy of  writ of  habeas  corpus  did  not  obliterate  or abrogate the  statutory remedy  of writ  of  habeas  corpus. Section 491  of the  Code of Criminal Procedure continued to be part  of that Code till that Code was replaced by the new Code. Although  the remedy  of writ  of habeas corpus is not now available  under the  new Code  of  Criminal  Procedure, 1973, the  same remedy  is still available under article 226 of the Constitution.      Our attention  has been  invited to  section 18  of the maintenance of  Internal Security  Act as amended. According to that  section,  no  person,  including  a  foreigner,  in respect of  whom an  order is  made or  purported to be made under section  3 shall have any right to personal liberty by virtue of  natural law  or common  law, if any. This section would not,  in my  opinion, detract  from my conclusion that article 21  is not  the sole  repository  of  the  right  to personal liberty.  It has  been pointed  out above  that the principle that  no one  shall be  deprived of  his life  and personal liberty  without the  authority of laws follows not merely from  common law, it flows equally from statutory law like the  penal law  in force in India. The above principle, as would  appear from  what has been discussed elsewhere, is also an  essential facet  of the  rule of  law. Section  18, therefore, cannot be of much assistance to the appellants. I am also  unable to  subscribe to  the view  that section  18 would have the effect of enlarging the ambit of the power of the detaining  authority for the purpose of passing an order for detention. There has been, it needs to be emphasised, no amendment of  section 3  of the  Act. Section  18 cannot  be construed to  mean that  even if  an order  for detention is made on  grounds not  warranted by  section 3 of the Act, it shall be  taken to  be an  order under section 3 of the Act. Apart  from   the  fact   that  such  an  inference  is  not permissible on the language of section 18, the acceptance of this view  would also render the validity of section 18 open to question  on the  ground that it suffers from the vice of excessive delegation  of legislative  power. The legislature is bound  to lay  down the legislative policy by prescribing the circumstances  in which  an order  for detention  can be made. It  is not permissible for the legislature to confer a power  of  detention  without  laying  down  guidelines  and prescribing the  circumstances in which such order should be made.  To  do  so  would  be  tantamount  to  abdication  of legislatitve function for in such 275 an event  it would  be open  to the  detaining authority  to detain a person on any ground whatsoever.      l agree  with the  learned Attorney  General that if we are  to   accept  his   argument  about  the  scope  of  the Presidential order  of June  27, 1975, in that event we have to accept  it in its entirety and go the whole hog; there is no half  way  house  in  between.  So  let  us  examine  the consequences of  the acceptance  of the above argument. This would mean  that if  any official,  even a head constable of police, capriciously  or maliciously,  arrests a  person and detains him  indefinitely without  any authority of law, the aggrieved person  would not  be able to seek any relief from the courts  against such  detention  during  the  period  of emergency. This  would  also  mean  that  it  would  not  be necessary to  enact any  law on  the subject and even in the absence of  any such  law, if any official for reasons which have nothing to do with the security of State or maintenance of public  order, but because of personal animosity, arrests and puts  behind the  bar any  person or  a whole  group  or family of persons, the aggrieved person or persons would not

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be able  to seek  any redress  from a court of law. The same would be  the position  in case  of threat of deprivation or even actual  deprivation of life of a person because article 21 refers  to both  deprivation of  life as well as personal liberty. Whether  such things  actually come  to pass is not the question before us; it is enough to state that all these are permissible  consequences from  the  acceptance  of  the contention that  article 21  is the  sole repository  of the right   life and  personal liberty  and that consequent upon the issue of the Presidential order, no one can approach any court and  seek relief during he period of emergency against deprivation of life or personal liberty. In order words, the position would  be that  so far  as executive  officers  are concerned, in  matters relating to life and personal liberty of citizens,  they would  not be  governed by  any law, they would not  be answerable  to any  court and  they  would  be wielding more or less despotic powers.      To   take    another   illustration.    Supposing   the Presidential order  under article  359(1)  were  to  mention article 21  but not  article 22. The acceptance of the above submission advanced  on behalf  of the appellants would mean that if  the State  does not  release a  detenu despite  the opinion of  the Advisory  Board that  there is no sufficient cause for  his detention  and thus keeps him in detention in fragrant violation  of the  provisions  of  article  22,  no habeas corpus  petition would be maintainable and this would be so even though article 22 itself is a fundamental right.      The right  to move  a court  for enforcement of a right under article  19 has  now been  suspended by  the President under an  order issued  under article  359(1). The effect of that, on  a parity  of reasoning  advanced on  behalf of the appellant would  be, that  no one can file a suit during the period of  emergency  against  the  State  for  recovery  of property or money (which is a form of property) because such a suit,  except in  some contingencies,  would be  a Suit to enforce the right contained in article 19. 276      Not much  argument  is  needed  to  show  that  if  two constructions  of  Presidential  order  were  possible,  one leading to  startling results  and the  other not leading to such results,  the court  should  lean  in  favour  of  such construction as would not lead to such results.      Equally well  established is  the rule  of construction that if there be a conflict between the municipal law on one side and  the inter  national law  or the  provisions of any treaty obligations  on the  other,  the  courts  would  give effect to  municipal law.  If, however, two constructions of the municipal  law are  possible, the  courts should lean in favour of  adopting such  construction  as  would  make  the provisions of  the municipal  law to  be in harmony with the inter national  law or  treaty obligations.  Every  statute, according to  this rule,  is  interpreted,  so  far  as  its language permits,  so as  not to  be inconsistent  with  the committee  of   nations  or   the   established   rules   of international law,  and the  court will avoid a construction which would give rise to such inconsistency unless compelled to adopt  it by  plain and  unambiguous language. But if the language of  the statute  is  clear,  it  must  be  followed notwithstanding   the   conflict   between   municipal   and international law  which results (see page 183 of Maxwell on the  Interpretation   of  Statutes,   Twelfth  Edition.)  As observed  by   Oippenheim’s  International   law,   although municipal  courts  must  apply  Municipal  Law  even  if  it conflicts with  the Law  of Nations,  there is a presumption against the  existence of  such a  conflict. As  the Law  of

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Nations is  based upon  the common  consent of the different States, it  is improbable  that an  enlightened State  would intentionally enact  a rule  conflicting  with  the  Law  of Nations. A  rule of Municipal Law, which ostensibly seems to conflict with  the  Law  of  Nations,  must,  therefore,  if possible, always be so interpreted as to avoid such conflict (see Vol.  1, pages  45-46), Lord Denning gave expression to similar view  in the  case of  Corocraft craft  Ltd. v.  Pan American Airways Inc. (1) when he observed      "The Warsaw  Convention is  an international convention      which is  binding  in  international  law  on  all  the      countries who  have ratified  it and  it is the duty of      these courts to construe our legislation so as to be in      conformity with  international law  and not in conflict      with it." The rule  about the construction of municipal law also holds good when  construing the  provisions of the Constitution as would  appear  from  International  Law  by  Fenwick,  Third Edition, page 90, wherein is observed:      "But while  in the  case of  a direct  conflict between      national and  international law,  the rule  of national      law will  of necessity  take priority  until changed to      conform to  the international obligations of the state,      there are numerous cases in which the provisions of the      national constitution of the provisions of a particular      legislative act  are  not  so  but  that  they  may  be      interpreted so  as to  enable  the  executive  and  the      judicial agencies  of the  state to  act in  accordance      with the obligations of international law."      (1) [1969] 1 All E. R.80. 277 According to  article 51  our Constitution,  the State shall endeavour    to  inter alia foster respect for international law and  treaty obligations  in the  dealings  of  organised peoples with  one another.  Relying upon that article, Sikri CJ. Observed in the case of Kesavananda Bharathi v. State of Kerala(1):      "It seems  to me  that,  in  view  of  art  51  of  the      directive  principles,   this  Court   must   interpret      language of the Constitution, if not intractable, which      is after  all a  municipal law,  in the  light  of  the      United  Nations  Charter  and  the  solemn  declaration      subscribed to by India." Articles 8  and 9  of the  Universal  Declaration  of  Human Rights in  respect of  which resolution  was passed  by  the United Nations and was supported by India read as under:                          ARTICLE 8      Everyone has  the right  to an  effective remedy by the      competent national  tribunals for  acts  violating  the      fundamental rights  granted him  by the constitution or      by law.                          ARTICLE 9      No  one   shall  be   subjected  to  arbitrary  arrest,      detention or exile.’      While dealing with the Presidential order under article 359(1), we  should adopt  such a  construction as  would, if possible, not bring it in conflict with the above articles 8 and 9.  From what  has been discussed elsewhere, it is plain that such  a construction  is not  only possible, it is also preeminently reasonable.  The Presidential order, therefore, should be so construed as not to warrant arbitrary arrest or to bar  right to  an effective  remedy by competent national tribunals for acts violating basic right of personal liberty granted by law.      It has  been argued  that suspending  the  right  of  a

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person to  move any  court for  the enforcement  of right to life and  personal liberty  is done  under a  constitutional provision and therefore it cannot be said that the resulting situation would  mean the  absence of  the rule of law. This argument, in  my opinion, cannot stand close scrutiny for it tries to equate illusion of the rule of law with the reality of rule  of law.  Supposing a law is made that in the matter of the  protection of  life and  liberty, the administrative officers would  not be governed by any law and that it would be permissible  for them  to deprive  a person  of life  and liberty without any authority of law. In one sense, it might in that  event be  argued that  even if lives of hundreds of persons are  taken capriciously  and maliciously without the authority of  law, it  is enforcement  of the  above enacted law. As observed by Friedmann on page 500 of Law in Changing Society, 2nd  Ed., in  a purely  formal sense, any system of norm based on a hierarchy of orders, even the organised mass murders of  Nazi regime qualify as law. This argument cannot however, disguise the reality of the matter that hundreds of innocent lives  have been  taken because  of the  absence of rule of  law. A  state of  negation of rule of law would not cease to  be such  a state  because of  the fact that such a state of negation of rule of law has been brought about by a statute. Absence of rule      (1) [1973] Supp. S.C.R. 1. 278 of law  would nevertheless  be absence  of rule  of law even though it  is brought  about by a law to repeal all laws. In the words  of Wade, Government under the rule of law demands proper legal  limits on the exercise of power. This does not mean merely that acts of authority must be justified by law, for if  the law is wide enough it can justify a dictatorship based on  the tyrannical  but perfectly legal principle quod principi placuit  legis  habet  vigorem.  The  rule  of  law requires something further. Powers must first be approved by Parliament, and  must then  be granted  by Parliament within definable limits  (see Administrative  Law,  Third  Edition, page 46).  It is  no doubt true that Dicey’s concept of rule of law  has been  criticised by  subsequent writers since it equates the  rule of  law  with  the  absence  not  only  of arbitrary  but   even  of   wide  discretionary  power.  The following reformulation  of Dicey’s  ideas as  applicable to modern welfare  state given  by H.W.  Jones  eliminates  the equation of arbitrary and wide discretionary powers:      "There are,  I believe,  ideas  of  universal  validity      reflected in  Dicey’s ’three  meanings’ of  the rule of      law (1)  in a  decent society  it is  unthinkable  that      government, or  any .  Officer of government, possesses      arbitrary power over the person or the interests of the      individual; (2) all members of society, private persons      and  governmental  officials  alike,  must  be  equally      responsible before  the law; and (3) effective judicial      remedies   are    more    important    than    abstract      constitutional declarations  in securing  the rights of      the individual  against encroachment by the State" (see      Law in  a Changing  Society by Friedmann, 2nd Ed., page      501).      One of  the essential  attributes of the rule of law is that executive  action to the prejudice of or detrimental to the right  of an  individual must  have the sanction of some law. This  principle has now been well settled in a chain of authorities of this Court.      In the case of Rai Sahib Ram Jawaya Kapur & Ors. v. The State  of   Punjab(1)  Mukherjea   C.J.  speaking   for  the Constitution Bench of this Court observed:

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    "Specific legislation  may indeed  be necessary  if the      Government require  certain powers  in addition to what      they possess  under ordinary  law, in order to carry on      the particular  trade or  business.  Thus  when  it  is      necessary to  encroach upon  private rights in order to      enable the  Government to  carry on  their  business  a      specific legislation sanctioning such course would have      to be passed."      The above  attribute  of  the  rule  of  law  has  been specially high  lighted in the decision of this Court in the case of  State of  Madhya Pradesh  & Anr.  v. Thakur  Bharat Singh(2). In  that case  the State  Government made an order under section  3 of  the Madhya Pradesh Public Security Act, 1959, directing  that the respondent (1) shall not be in any place in Raipur District, (ii) shall immediately proceed      (1) [1955] 2 S. C. R. 225,      (2) [1967] 2 S. C. R. 454. 279 to and  reside in a named town, and (iii) shall report daily to a police  station in that town. The respondent challenged the order  by a  writ petition under articles 226 and 227 of the Constitution  on the  ground inter  alia, that section 3 infringed the fundamental rights guaranteed under article 19 of the  Constitution. The  High Court  declared clauses (ii) and (iii)  of the  order invalid  on the ground that clauses (b) and  (c) of  section 3  (1) of the Madhya Pradesh Public Security Act  on which  they were  based contravened article 19. On  appeal this  Court  held  that  section  3  (1)  (b) violated article 19 and as it was a pre-emergency enactment, it must be deemed to be void when enacted. Section 3 (1) (b) was further  held not  to have  revived as  a result  of the proclamation of  emergency by the President. Counsel for the State submitted  in the  alternative that  even if section 3 (1)  (b)  was  void,  article  358  protected  action,  both legislative  and  executive,  taken  after  proclamation  of emergency, and  therefore any  executive action taken by the State would  not be  liable to  be challenged  on the ground that it infringed the fundamental freedoms under article 19. This contention  was repelled.  Shah J.  (as  he  then  was) speaking for the Court observed:      "All executive  action which  operates to the prejudice      of any person must have the authority of law to support      it, and  the terms of Art. 358 do not detract from that      rule. Article  358 expressly  authorises the  State  to      take legislative  or  executive  action  provided  such      action was competent for the State to make or take, but      for  the  provisions  contained  in  Part  III  of  the      Constitution. Article  358 does  not purport  to invest      the State  with arbitrary  authority to  take action to      the  prejudice   of  citizens  and  others:  it  merely      provides that  so long as the proclamation of emergency      subsists laws  may be enacted, and executive action may      be taken in pursuance of lawful authority, which if the      provisions of  Art. 19  were operative  would have been      invalid. Our  federal structure  is founded  on certain      fundamental principles:  (1)  the  sovereignty  of  the      people with  limited Government  authority  i.  e.  the      Government must  be conducted  in accordance  with  the      will of  the  majority of the people. The people govern      themselves through  their representatives,  whereas the      official agencies  of the  executive Government possess      only such  powers as  have been  conferred upon them by      the people; (2) There is distribution of powers between      the three  organs of  the State-legislative,  executive      and judicial  each organ  having some  check direct  or

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    indirect on  the other:  and (3)  the rule of law which      includes  judicial   review  of   arbitrary   executive      actions. As  pointed out  by Dicey in his  Introduction      to the  study of  the Law  of the  Constitution’,  10th      Edn., at  P. 202 the expression ’rule of law’ has three      meanings, or  may  be  regarded  from  three  different      points of  view. ’It  means in  the  first  place,  the      absolute supremacy  or predominance  of regular  law as      opposed to  the HE  influence of  arbitrary power,  and      excludes the existence of arbitrariness, of prerogative      or even of wide discretionay 280      authority on  the part  of government.’ At p. 188 Dicey      points out:           ’In  almost   every  continental   community   the      executive exercises  far wider  discretionary authority      in the  matter of arrest, of temporary imprisonment, of      expulsion from  its territory,  and the  like, than  is      either legally  claimed  or  in  fact  exerted  by  the      government in England: and a study of European polities      now and  again reminds  English readers  that  wherever      there is  discretion there  is room  for arbitrariness,      and that  in a  republic no  less than under a monarchy      discretionary authority.  On the part of the government      must mean  insecurity for  legal freedom on the part of      its subjects.’  We have  adopted under our Constitution      not the Continental system but the British system under      which tile  rule of law prevails. Every act done by the      Government or by its officers must, if it is to operate      to the  prejudice of  any person,  be supported by some      legislative authority."      In  Chief   Settlement   Commissioner,   Rehabilitation Department, Punjab  & Ors.  etc. v.  Om Parkash & Ors. (1) a Division Bench of this Court observed:      "In our  constitutional system,  the central  and  most      characteristic feature  is the  concept of  the rule of      law which  means, in the present context, the authority      of the  law courts to test all administrative action by      the  standard   of  legality.   The  administrative  or      executive action  that does  not meet the standard will      be  set  aside  if  the  aggrieved  person  brings  the      appropriate action in the competent court."      In District  Collector of  Hyderabad  &  Ors.  v.  M/s. Ibrahim &  Co. etc.  (2) the respondents who were recognized dealers in  sugar were  prevented by an executive order from carrying on  the business. The question which actually arose for decision  before this  Court was  whether the said order was protected  under articles  358 and  359 because  of  the declaration of  state of emergency by the president. Shah J. speaking for Bench of six Judges of this Court observed:      "But the  executive order  immune from  attack is  only      that order  which the  State was competent, but for the      provisions contained  in Art.  19, to  make.  Executive      action of  the  State  Government  which  is  otherwise      invalid is  not immune  from attack,  merely because  a      proclamation of  emergency is  in operation  when it is      taken. Since  the order  of the  State  Government  was      plainly contrary  to the statutory provisions contained      in the Andhra Pradesh Sugar Dealers Licensing Order and      the Sugar  Control order,  it was  not protected  under      Art. 358 of the Constitution.      Nor had it the protection under Art. 259."      (1) [1968] 3 S.C.R. 655.      (2) [1970] 3 S. C. R. 498. 281

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    In Bennett Coleman & Co. & ors. v Union of India(l) Ray J. (as  he then  was)  speaking  for  the  majority  of  the Constitution Bench  relied upon  Thakur Bharat Singh and M/s Ibrahim & Co. cases (supra) and observed:      "Executive action  which  is  unconstitutional  is  not      immune during the proclamation of emergency. During the      proclamation of  emergency Article 19 is suspended. But      it  would  not  authorise  the  taking  of  detrimental      executive action  during the  emergency  affecting  the      fundamental  rights   in   Article   19   without   any      legislative authority or in purported exercise of power      conferred by  any per-emergency  law which  was invalid      when enacted."      In Shree Meenakshi Mills Ltd. v. Union of India(2) this Court dealt  with petitions  challenging the validity of the fixation of  price of cotton yarns under an executive order. Objection was raised to the maintainability of the petitions on the  score of  proclamation of  emergency. This objection was repelled  and reliance was placed on the decision of the Court in the case of Bennett Coleman & Co.      In Naraindas  lndurkhya v.  The State of Madhya Pradesh (3) the  Constitution Bench  of this Court to which three of us (Ray  C. J,  I) Khanna  and Bhagwati  JJ.)  were  parties placed reliance  on the decisions in the cases of Ram Jawaya Kapur, Thakur Bharat Singh and Bennett Coleman & Co. (surpa)      These authorities  clearly highlight the principle that executive authorities  cannot under the rule of law take any action to  the prejudice of an individual unless such action is authorised  by law. A fortiori it would follow that under the rule of law it is not permissible to deprive a person of his life or personal liberty without the authority of law.      It may  be appropriate  at this  age to  refer to other eases in  which stress  has been laid on rule of law by this Court.      Wanchoo J.  in the  case of  Director of  Rationing and Distribution  v.  The  Corporation  of  Calcutta  &  ors.(l) stated. that  in our county the rule of law prevails and our Constitution has  guaranteed, it by the provisions contained in Part  III thereof  as well  as other  provisions in other Parts.      In Bishan  Das &  ors. v. The State of Punjab & ors.(5) S. K.  Das J.  speaking for  the Constitution  Banch of this Court deprecated  action C;  taken  by  the  State  and  its officers on  the ground that it was destructive of the basic principles of the rule of law.      In G.  Sadanandan v.  State of  Kerala &  Anr.  (supra) Gajendragadkar  CJ.  speaking  for  the  Constitution  bench observed that  the Paramount requirement of the Constitution was that even during      (1) [1973] 2 S. C. R. 757.      (2) [1974] 2 S. C. R. 398.      (3) A. I. R. 1974 S. C. 1232.      (4) [1961] 1 S. C. R. 158.      (5) 11962] 2 S. C.R.. 69. 282      emergency. the  freedom of Indian citizens would not be taken away  without the  existence of  justifying  necessity specified by the Defence of India Rules.      In S.  G. Jaisinghani  v.  Union  of  India  &  ors.(1) Ramaswami J.  speaking for  the Constitution  Bench of  this Court observed as under:           "In this context it is important to emphasise that      the absence  of arbitrary  power is the first essential      of the  rule of law upon which our whole constitutional      system is  based. In  a system governed by rule of law,

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    discretion, when  conferred upon executive authorities,      must be  confined within  clearly defined  limits.  The      rule  of  law  from  this  point  of  view  means  that      decisions should  be made  by the  application of known      principles and  rules and,  in general,  such decisions      should be predictable and the citizen should know where      he is.  If a decision is taken without any principle or      without  any  rule  it  is  unpredictable  and  such  a      decision is  the antithesis  of  a  decision  taken  in      accordance with the rule of law. (See Dicey-’Law of the      Constitution’ Tenth  Edn., Introduction  ex). ’Law  has      reached its  finest moments’,  stated  Douglas,  J.  in      United States  v. Wunderlick(2), ’when it has freed man      from the  unlimited discretion of some ruler .... Where      discretion is absolute, man has always suffered’. It is      in this  sense that  the rule  of law may be said to be      sworn enemy  of caprice.  Discretion, as Lord Mansfield      stated  it  in  classic  terms  in  the  case  of  John      Wilkes(3), ’means  sound discretion  guided by  law. It      must be governed by rule, not by humour: It must not be      arbitrary, value and fanciful.’ "      In the case of Shrimati Indira Nehru Gandhi v. Shri Raj Narain(4) both Ray CJ. and Chandrachud J. laid stress on the rule of law in our constitutional scheme.      It would  not, in  my opinion,  be correct  to consider rule of  law as  a vague  or nebulous concept because of its description as  an unruly  horse by  Ivor Jennings.  Indeed, according to  Jennings, the rule of law demands in the first place that  the powers  of the  Executive should not only be derived from  law, but  that they  should be limited by law. Whatever might  be the  position in  peripheral cases, there are certain aspects which constitute the very essence of the rule of  law. Absence  of arbitrariness  and the need of the authority of  law for  official acts affecting prejudicially rights of  individuals is one of those aspects. The power of the courts  to grant relief against arbitrariness or absence of authority  of law  in the  matter of  the liberty  of the subject may  now well be taken to be a normal feature of the rule of law. To quote from Halsbury’s Laws of England, Third Edition, Vol. 7,      (1) [1967] 2 s. C. R. 703.      (2) 342 U. S. 98.      (3) (1770) 4 Burr. 2528 at 2539.      (4) [19761 2 S. C. R. 347 283 para 416,  the so-called liberties of the subject are really implications    drawn  from  the  two  principles  that  the subjects may say or do what he pleases, provided he does not transgress substantive  law, or infringe the legal rights of others, whereas  public authorities including the Crown) may do nothing  but what  they are authorised to do by some rule of common  law or  statute. The  essence  of  rule  of  law, according to  Prof. Goodhart,  is that  public officers  are governed  by  law,  which  limits  their  powers.  It  means Government  under   law-  the  supremacy  of  law  over  the Government as  distinct  from  Government  by  law-the  mere supremacy of law in society generally-which would apply also to totalitarian  states (See  page 42  of constitutional and Administrative Law by Hood Phillips, Third Edition).      I may  mention that  there has  been  an  amendment  of article 359  inasmuch as  clause (1A) has been added in that article. The  effect of  the insertion  of  that  clause  in article 359  is that  while an  order made  under clause (1) mentioning any  of the  rights conferred  by Part  III is in operation, nothing  ill that  Part conferring  those  rights

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shall restrict  the power of the State to make any law or to take any  executive action which the State would but for the provisions contained in that Part be competent to make or to take, but  any law  so made  shall. to  the .  extent of the incompetency, cease  to have  effect as  soon as  the  order aforesaid ceases  to operate,  except as respects thing done or omitted  to be  done before  the law  so ceases  to  have effect. Clause (1A) thus protects laws and executive actions from any  attack on validity on the score of being violative of the  fundamental rights  mentioned  in  the  Presidential order in  the same  way as article 358 protects the laws and executive actions  from being  challenged on  the ground  of being  violative   of  article   19  during  the  period  of emergency. If  the existence of article 358 did not have the effect of  dispensing with  the necessity  for an  executive action operating to the prejudice of tile right of a citizen of the  authority of  law, the  same must necessarily be the position after  the insertion of clause (1A) in article 359. It is  significant that  the  language  of  clause  (1A)  of article 359 in material respect is substantially the same as that of  article 358. The language of clause (1A) of article 359 makes  it clear that the protection which is afforded by that clause  is to such law or executive action is the State would but  for the  provisions contained  in Part III of the Constitution  be   competent  to  make  or  take.  The  word "competent" has  a significance  and  it  is  apparent  that despite the  Presidential order under article 359(1), in the case of executive action the competence of the State to take such action  would have  to be established. Such  competence would, however, be judged ignoring the restriction placed by the provisions of Part III of the Constitution. To put it in other words,  clause (1A)  of article  359 does not dispense with the  necessity  of  competence  to  make  law  or  take executive action.  The only  effect of  that clause  is that during the  period of  emergency the restriction placed upon the competence by fundamental rights would not be there. But it would  still be  necessary to  establish  the  competence dehors the restrictions of the fundamental rights. 284      The matter  can also  be looked  at from another angle. Before any public authority can deprive a person of his life or personal liberty, two requirements are to be satisfied:           (1)  Power must  be conferred  by  law  upon  such                authority to  deprive a person of his life or                liberty; and           (2)  Law must also prescribe the procedure for the                exercise of such power. Suspension  of   the  right   to  move  any  court  for  the enforcement of  the right  under article  21 can at the best impinge upon  the second  requirement; it  cannot affect the first requirement  which is a cardinal principle of the rule of law.  l am  conscious of  the fact that though article 21 refers  to   procedure  established   by  law,   there   are observations in  Gopalan’s case  that the article would also cover substantive  law for  affording protection to life and liberty. What  article 21  lays down is that no person shall be deprived of his life or personal liberty except according to  procedure   established  by  law.  Procedure  about  the exercise of  power of  depriving a  person of  his  life  or personal   liberty    necessarily   presupposes   that   the substantive power  of depriving  a person  of  his  life  or personal liberty  has been  vested in  an authority and that such power exists. Without the existence of such substantive power, no  question can  arise about  the procedure  for the exercise of  that power.  It has,  therefore, been held that

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though there is no reference to substantive power in article 21, the  said article  would cover both the existence of the substantive power  of depriving  a person  of his  life  and personal liberty  as well  as the procedure for the exercise of : that power. The question with which we are concerned is as Lo  what is  the effect of the suspension of the right to move a  court for. the enforcement of the right contained in article 21.  The effect.  it may possibly be argued, is that consequent upon  such suspension  if a person is deprived of his life  or personal liberty under a law not satisfying the second requirement  indicated above, he cannot seek judicial redress on  that score.  Would it,  however, follow from the suspension of  such right  that no  judicial remedy would be available if  a personal  is deprived by an authority of his life or  personal liberty  even though such an authority has not been vested with the substantive power of deprivation of life and personal liberty. The answer to this question in my opinion, should  plainly be  in the negative. The suspension of the  right to  move a  court for  the enforcement  of the right contained  in article  21 cannot  have the  effect  of debarring an  aggrieved person  from approaching  the courts with the complaint regarding deprivation of life or personal liberty by  an authority on the score that no power has been vested in  the authority  to deprive  a person  of  life  or liberty. The  presupposition of the existence of substantive power to deprive a person of his life or personal liberty in article 21  even  though  that  article  only  mentions  the procedure, would  not necessarily  point to  the  conclusion that in the event of the suspension of the right to move any court for  the enforcement  of article  21,  the  suspension would also  dispense with  the necessity of the existence of the substantive  power. The coexistence of substantive power and procedure  established by  law for depriving a person of his life and liberty 285 which is implicit in article 21 would not lead to the result that even  if there  is suspension  of the  right  regarding procedure, suspension  would also operate upon the necessity of substantive power. What is true of a proposition need not be true  of the converse of that proposition. The suspension of the  right to  move any  court for the enforcement of the right contained  in  article  21  may  have  the  effect  of dispensing with  the necessity  of prescribing procedure for the exercise of substantive power to deprive a person of his life or  personal liberty, it can no case have the effect of permitting an  authority to  deprive a person of his life or personal  liberty   without  the  existence  of  substantive personal.  The   close  bond  which  is  there  between  the existence of  substantive power of depriving a person of his life or  personal liberty and the procedure for the exercise of that  power, if the right contained in article 21 were in operation, would  not necessarily  hold good  if that  right were suspended  because the  removal of compulsion about the prescription  of   procedure  for   the  exercise   of   the substantive power  would not  do away  with  the  compulsion regarding the existence of that power.      It is  significant that  there is  a difference  in the language of article 21 and that of article 31(1) wherein the framers of  the Constitution  said  that  no  one  shall  be deprived of  his property  save by the authority of; law. In considering the  effect of Presidential order suspending the right of a person to move any court for enforcement of right guaranteed by  article 21,  we should  not treat  the  words "except according  to procedure  established by  law" to  be synonymous with save by authority of law".

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    The President  can in  exercise of  powers conferred by article 359(1) suspend when the proclamation of emergency is in  operation,   the  right   to  move  any  court  for  the enforcement of  such of  the fundamental  rights as  may  be mentioned in  the order.  On the  plain language  of article 359(1), the  President has  no power to suspend the right to move any  court for  the enforcement of rights which are not fundamental  rights   conferred   by   Part   III   of   the Constitution. Rights created by statutes are not fundamental rights conferred by Part III of the Constitution and as such enforcement of  such statutory  rights cannot  be  suspended under article 359(1). Likewise, article 359(1) does not deal with obligations  and liabilities  which flow from statutory provisions, and  it would follow that an order under article 359(1)  cannot  affect  those  obligations  and  liabilities arising out  of statutory provisions. Nor can a Presidential order under  article 359(1) nullify or suspend the operation of any  statute enacted  by  a  competent  legislature.  Any redress sought from a court of law on the score of breach of statutory provisions would be outside the purview of article 359 (  1 )  and the  Presidential order  made hereunder. The Presidential order cannot put the detenu in a worse position than that  in which  he would be if article 21 were repealed It cannot  be disputed  that if  article 21 were repealed, a detenu would  not be  barred from  obtaining relief  under a statute in  case there is violation of statutory provisions. Likewise, in the event of repeal of article 21, a detenu can rightly claim  in a  court of law that he cannot be deprived of his  life or  personal liberty  without the  authority of law. Article 286 359(1) ousts  the jurisdiction  of the court only in respect of matters specified therein during the period of emergency. So far  as matters  not mentioned  in article 359(1) and the Presidential order thereunder concerned, the jurisdiction of the court is not ousted. A provision which has the effect of ousting the  jurisdiction of  the court  should be construed strictly. No  inference of the ouster of the jurisdiction of the  court  can  not  be  drawn  unless  such  inference  is warranted by  the clear  language of  the provision  ousting such Jurisdiction.  I may  in  this  context  refer  to  the observations of  the Constitution Bench of this Court in the case of  K. Anandan  Nambiar  &  Anr.  v.  Chief  Secretary, Government of Madras & Ors(1) Gajendragadkar J. speaking for the Constitution Bench observed:           "In construing  the  effect  of  the  Presidential      order, it is necessary to bear in mind the general rule      of construction that where an order purports to suspend      the fundamental  rights guaranteed  to the  citizens by      the Constitution,  the  said  order  must  be  strictly      construed in  favour  of  the  citizens’    fundamental      rights." ;      I am  also unable to accede to the argument that though the position   under  law may be that no one can be deprived of his  right  to  life  or  personal  liberty  without  the authority of law, the remedy to enforce the right to life or personal liberty is no longer available during the period of emergency because  of the  suspension of  right to  move any court for  enforcement of right conferred by article 21. The basic assumption  of this argument is that article 21 is the sole repository  of right to life and personal liberty. Such an assumption,  as already  ‘ I  stated above,  is not  well founded. This  apart, a  Presidential  order  under  article 359(1) cannot  have the  effect of  suspending the  right to enforce rights  flowing from statutes, nor can it bar access

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to the  courts of  persons seeking  redress on  the score of contravention of  statutory provisions. Statutory provisions are enacted to be complied with and it is not permissible to contravene them.  Statutory provisions  cannot be treated as mere pious  exhortations or  words of  advice which  may  be abjured or  disobeyed with  impunity. Nor is compliance with statutory provisions  optional or  at the  sufferance of the official concerned.  It is  the presence  of legal sanctions which distinguishes positive law from other systems of rules and norms. To be a legal system a  set of norms must furnish sanctions for  some of  its precepts.  A legal  sanction  is usually thought  of  as  a  harmful  consequence  to  induce compliance with law. Non-compliance with statutory provision entails certain  legal consequences.  The Presidential order cannot stand in the way of the courts giving effect to those consequences.  To   put  it   differently,   the   executive authorities exercising  power under a statute have to act in conformity with its provisions and within the limits set out therein.  When   a  statute  deals  with  matters  affecting prejudicially the  rights of  individuals, the  ambit of the power of  the  authorities acting under the statute would be circumscribed  by  its  provisions,  and  it  would  not  be permissible to  invoke some indefinite general powers of the executive. As observed by Lord Atkinson in (1) [1966] 2 S. C. R. 406 (oh p. 410). 287 the case  of Attorney  General v.  De Keyser’s  Royal  Hotel Ltd.,(l)   the constitutional  principle is  that  when  the power of  the Executive  to interfere  with the  property or liberty of  subjects has  been  placed  under  Parliamentary control, and directly regulated by statute, the Executive no longer derives  its authority  from the Royal Prerogative of the Crown  but from  Parliament, and that in exercising such authority the Executive is bound to observe the restrictions which Parliament has imposed in favour of the subject. It is also not  the result of the Presidential order, as discussed elsewhere, that  because of  the suspension  of the right to move any  court for  enforcement of  right under article 21, the remedy of a writ of habeas corpus ceases to be available against the State. The Presidential order would not preclude a person  from challenging the validity of a law or order on grounds other  than violation of articles 14, 19, 21 and 22. It may  be pertinent to refer to a decision of this Court in the case  of Jaichand Lall Sethia v. State of West Bengal(2) wherein the  Constitution Bench of this Court observed after referring to the case of Makhan Singh (supra):           "It was  pointed out  that during  the pendency of      the Presidential order the validity of the ordinance or      any rule  or order made thereunder cannot be questioned      on the  ground that it contravenes Arts. 14, 21 and 22.      But this  limitation cannot  preclude  a  citizen  from      challenging the  validity of  the ordinance or any rule      or order  made thereunder  on; any other ground. If the      appellant  seeks  to  challenge  the  validity  of  the      ordinance, rule or order made thereunder on ally ground      other than  the contravention  of Arts.  14. 21 and 22,      the Presidential  order cannot  come into operation. It      is not  also open  to the  appellant to  challenge  the      order on  the  ground  of  contravention  of  Art.  19,      because as  soon as  a  Proclamation  of  Emergency  is      issued by the President under Art. 358 the provision of      Art. 19  are automatically suspended. But the appellant      can challenge  the validity  of the  order on  a ground      other  than   those  covered   by  Art.   358,  or  the      Presidential order  issued under  Art. 359(1 ) . Such a

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    challenge is  outside the  purview of  the Presidential      order. For  instance. a citizen will not be deprived of      the right  to move  an appropriate  Court for a writ of      habeas corpus on the ground that his detention has been      ordered mala  fide Similarly,  it will  be open  to the      citizen to  challenge the  order of  detention  on  the      ground that  any of  the grounds given in the order. of      detention is  irrelevant  and  there  is  no  real  and      proximate connection  between the  ground given and the      object which  the legislature  has in  view. It  may be      stated in  this context  that a  mala fide  exercise of      power does not necessarily imply any moral turpitude as      a matter of law. It only means that the statutory power      is exercised for purposes foreign to those for which it      is in law intended. In other words, the power conferred      by the statute has been utilised (1) [1920] A. C. 508. (2) [1966] Supp. S .C. R. 464. 288       for  some indirect  purpose  not  connected  with  the      object of  the statute  or the  mischief  it  seeks  to      remedy." Similar view  was expressed  in the case of Durgadas Shirali v. Union  of India  & ors(1)  In G.  Sadanandan v.  State of Kerala &  Anr.(2)  the  Constitution  Bench  of  this  Court speaking through  Gajendragadkar CJ. struck down a detention order on the ground that it was mala fide.      Our founding  fathers made  article 226  which  confers power on  the High  Court to  issue inter  alia writs in the nature  of   habeas  corpus   an  integral   part   of   the Constitution. They were aware that under the US Constitution in accordance with article 1 section IX the privilege of the writ of  habeas corpus  could be  suspended when in cases of rebellion or  invasion the  public safety  may  require  it. Despite that  our founding  fathers made no provision in our constitution for  suspending the  power of  the High  Courts under article  226 to  issue writs  in the  nature of habeas corpus during  the period  of emergency. They had perhaps in view the  precedent of  England  where  there  had  been  no suspension of  writ of  habeas corpus  since 1881  and  even during tile course of First and Second World Wars. It would, in my  opinion, be not permissible to bring about the result of suspension of habeas corpus by a strained construction of the Presidential  order under  article  359(1)  even  though Article 226  continues to  remain in force during the period of emergency.      The writ  of habeas  corpus ad  subjiciendum, which  is commonly known  as the  writ of  habeas corpus, is a process for securing  the liberty  of the  subject by  affording  an effective  mean   or  immediate  release  from  unlawful  or unjustifiable detention,  whether in  prison or  in  private custody. By  it the High Court and the judges of that Court, at  the   instance  of  a  subject  aggrieved,  command  the production of  that subject, and inquire is the cause of his imprisonment. If  there is  no legal  justification for  the detention, the  party is  ordered to be released. Release on habeas corpus  is not,  however, an  acquittal, nor  may the writ be  used as  a means  of appeal (see Halsbury’s Laws of England" Vol. 11, Third Edition, page 24).      In Greene  v. Secretary  of State  for Home  Affairs(3) Lord Wright observed :           "It is  clear that the writ of habeas corpus deals      with the machinery of justice, not the substantive law,      except in  so far  as it  can be said that the right to      have the  Writ is itself part of substantive law. it is

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    essentially a  procedural writ,  the object of which is      to enforce  a legal right .... The inestimable value of      the proceedings  is that  it is the most efficient mode      ever devised  by any  system of  law  to  end  unlawful      detainments and  to secure  a speedy  release where the      circumstances and the law so required."      (1) [1966] 2 S. C. R. 573      (2) [1966] 3 S. C. R. 590.      (3) [1942] A. C. 284. 289      Writ of  habeas corpus  was described  as under by Lord Birkenhead   in the  case of  Secretary of  State  for  Home Affairs v. O’Brien(1):           "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      thirtythird year  of Edward  I. It has through the ages      been jealously  maintained by  courts of law as a check      upon the  illegal usurpation  of power by the executive      at the cost of the liege."      The existence  of the  power of  the courts  to issue a writ of  habeas corpus  is  regarded  as  one  of  the  most important characteristic of democratic states under the rule of law. The significance of the writ for the moral health of the society  has been  acknowledged by  all jurists.  Hallam described it  as the "principal bulwark of English liberty". The uniqueness of habeas corpus in the procedural armoury of our law  cannot be too often emphasised. It differs from all others remedies  in that  it  is  available  to  bring  into question the legality of a person’s restraint and to require justification for  such detention.  of course  this does not mean that  prison doors  may readily be opened. It does mean that explanation  may be  exacted  why  they  should  remain closed. It  is not  the boasting  of empty rhetoric that has treated the  writ of habeas corpus as the basic safeguard of freedom. The  great writ  of  habeas  corpus  has  been  for centuries  esteemed  the  best  and  sufficient  defence  of personal freedom (see Human Rights & Fundamental Freedoms by Jagdish Swarup, page 60).      As article 226 is an integral part of the Constitution, the power  of the High Court to enquire in proceedings for a writ of  habeas corpus into the legality of the detention of persons cannot"  in my  opinion, lie  denied.  Although  the Indian Constitution,  as mentioned  by Mukherjea  CJ. in the case of  Ram Jawaya  Kapur (supra),  has not  recognised the doctrine of  separation of powers in its, absolute rigidity, the functions  of the  different parts,  or branches  of the Government  have   been  sufficiently   differentiated   and consequently it  can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of  functions that essentially belong to another. The executive  can   exercise  the  powers  of  departmental  or subordinate legislation when such powers are delegated to it by the  legislature. It can also, when so empowered exercise judicial function  in a  limited way. The executive however, can never  go against  the provisions of the Constitution or of any  law. To  quote the  words of  Dr.  Ambedkar  in  the Constituent Assembly:           "Every Constitution,  so far as it relates to what      we call  parliament democracy  requires three different      organs of the   State, the executive, the judiciary and      the legislature.  I have  ; . not anywhere found in any      Constitution a  provision  saying  that  the  executive

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    shall obey  the legislature,  nor have I found anywhere      in any  Constitution a  provision  that  the  executive      shall obey the judiciay. Nowhere is such a provision to      be      (1) [1923] A. C. 603 (609). 22 833 Sup CI/76 290       found  That is because it is generally understood that      the provisions of the Constitution are binding upon the      different organs  of the  State. Consequently, it is to      be presumed that those who work the Constitution, those      who compose  the Legislature  and those who compose the      executive and the judiciary know their functions, their      limitations and  their duties.  It is  therefore to  be      expected that  if the  executive, is  honest in working      the Constitution,  then the  executive is bound to obey      the  Legislature   without  any   kind  of   compulsory      obligation laid down in the Constitution.       Similarly  if the  executive is  honest in working the      Constitution,  it  must  act  in  accordance  with  the      judicial  decisions   given  by   the  Supreme   Court.      Therefore my submission is that this is a matter of one      organ of  the State  acting within  its own limitations      and obeying  the supremacy  of the  other organs of the      State. In  so far as the Constitution gives a supremacy      to that  is a matter of constitutional obligation which      is implicit in the Constitution itself." It was further observed by him:       "No  constitutional Government  can  function  in  any      country unless  any particular constitutional authority      remembers the fact that its authority is limited by the      Constitution and that if there is any authority created      by the  Constitution which  has to decided between that      particular authority and any other authority,, then the      decision of  that authority  shall be  binding upon any      other  organ.   That  is   the  sanction   which   this      Constitution gives  in order  to see that the President      shall follow  the advice  of his  Ministers,  that  the      executive shall  not exceed  in its executive authority      the law made by Parliament and that the executive shall      not give  its own interpretation of the law which is in      conflict with! the interpretation of the judicial organ      created by the Constitution." Article 226  of the Constitution confers power upon the High Courts of issuing appropriate writs in case it is found that the  executive   orders  are  not  in  conformity  with  the provisions of  the Constitution  and the  laws of  the land. Judicial scrutiny  of executive orders with a view to ensure that they  are  not  violative  of  the  provisions  of  the Constitution and the laws of the land being an integral part of our  constitutional scheme,  it  is  not  permissible  to exclude  judicial   scrutiny  except   to  the  extent  such exclusion is warranted by the provisions of the Constitution and the laws made in accordance with those provisions.      There is,  as already mentioned, a clear demarcation of the spheres  of function  and power in our Constitution. The acceptance of  the contention  advanced  on  behalf  of  the appellants would  mean that  during the period of emergency, the courts  would  be  reduced  to  the  position  of  being helpless spectators even if glaring and blatant instances of deprivation of life and personal liberty in contravention of the statute  are brought to their notice. It would also mean that whatever 291 may be  the law  passed by the legislature, in the matter of

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life and   personal  liberty of  the citizens, the executive during the  period of emergency would not be bound by it and would be  at liberty  to ignore  and contravene  it.  It  is obvious that  the acceptance  of the contention would result in a kind of supremacy of the executive over the legislative and judicial  organs of  the State,  and thus  bring about a constitutional imbalance  which perhaps  was  never  in  the contemplation of  the framers  of the Constitution. The fact that the  government which  controls the  executive  has  to enjoy the  confidence of  the legislature  does not  detract from  the   above  conclusion.   The  executive   under  our constitutional scheme  is not merely to enjoy the confidence of the  majority in  the legislature,  it is  also bound  to carry out  the  legislative  intent  as  manifested  by  the statutes passed by the legislature. The Constitution further contemplates that  the  function  of  deciding  whether  the executive has  acted  in  accordance  with  the  legislative intent should be performed by the courts.      The  cases   before  us   raise  questions   of  utmost importance and  gravity, questions  which impinge  not  only upon the  scope of  the different constitutional provisions, but have  impact also  upon the  basic ,  . values affecting life, liberty and the rule of law. More is at stake in these cases than  the liberty  of a few individuals or the correct construction of  the wording  of are order. What is at stake is the  rule of  law. If  it could  be the  boast of a great English judge*  that the  air of   England is too pure for a slave to  breathe, cannot  we also  say with ’ I justifiable pride that  this sacred land shall not suffer eclipse of the rule of  law and that the Constitution and the laws of India do not  permit life  and liberty  to  be  at  the  mercy  of absolute power of the executive, a power against which there can be  no redress  in courts  of law. even if it chooses to act contrary  to law  or  in  an  arbitrary  and  capricious manner. The question is not whether there-can be curtailment of personal  liberty when there is threat to the security of the  State.   I  have  no  doubt  that  there  can  be  such curtailment even  on an extensive scale, in the face of such threat. The  question is  whether the  laws speaking through the authority of the courts shall be absolutely silenced and rendered mute because of such threat.      No one  can deny  the power of the State to assume vast powers of  detention in  the interest of the security of the State. It  may indeed  be necessary  to do’  so to  meet the peril facing  the nation.  The considerations of security of the State  must have  a primacy and be kept in the forefront compared to which the interests of the individuals can  only take a  secondary place.  The motto has 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. There is no antithesis between the  power of  the   *Lord Mansfield  in the case of James Sommersett (1772 State Trials page 1) 292 State to  detain a  person without  trial  under  a  law  of preventive detention  and the  power of the court to examine the legality  such detention.  As observed  by Lord Atkin in Rex v.  Halliday(l) while dealing with the argument that the

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Defence  of   Realm  Consolidation  Act  or  1914  arid  the regulation made  under it  deprived the subject of his right under the  several Habeas  Corpus Acts,  that is  all entire misconception. The  subject retains  every right which those statutes confer upon him to have tested and determined ill a court of law, by means of a writ of Habeas Corpus, addressed to the  person in  whose custody  he may be, the legality of the order  or warrant by virtue of which he is given into or kept in  that custody.  To quote the words of Lord Macmillan in the case of Liversidge v. Anderson(2).           "It  is   important  to  have  in  mind  that  the      regulation question  is a  war measure.  This is not to      say that  the Court  sought to adopt in war time canons      of construction  different from  those they  follow  in      peace time.  The fact  that the  nation is at war is no      justification for  any relaxation  of the  vigilance of      the Courts  in seeing  that the  law is  duly observed,      especially in a matter so fundamental as the liberty of      the subject. Rather the contrary." In dealing  with an application for a writ of habeas corpus, the court  only ensure that the detaining authorities act in accordance with  the law of preventive detention. The impact upon the  individual of the massive and comprehensive powers of  preventive   detention  with  which  the  administrative officers are armed has to be cushioned with legal safeguards against arbitrary  deprivation of  personal liberty  if  the premises of  the rule  of law is not to lose its content and become meaningless.  The chances of an innocent person being detained under  a law  providing for preventive detention on the subjective  satisfaction of  an administrative authority are much  greater compared to the possibility of an innocent person being  convicted at trial in a court of law. It would be apposite  in this context to refer to the observations of Professor Alan M. Dershowitz:           The available  evidence suggest that our system of      determining past  guilt results in erroneous conviction      of relatively few innocent people. We really do seem to      practice what  we preach about preferring the acquittal      of guilty men over the conviction of innocent men.           But  the   indications  are  that  any  system  of      predicting future  crimes  would  result  in  a  vastly      larger  number   of  erroneous   confinements-that   is      confinements of  persons predicted to engage in violent      crime who  would not,  in fact"  do so. Indeed, all the      experience with  predicting  violent  conduct  suggests      that in  order to  spot  a  significant  proportion  of      future violent  criminals, we would have to reverse the      traditional maxim  of the  criminal  law  and  adopt  a      philosophy that it is ’better to confine ten people who      would not  commit predicted crimes, than to release one      who would’." (1) [1917] A. C. 26’) (on page 272).      [1942] A. C. 206. 293      (see p.  313 Crime,  Law and  Society by  Goldstein and      Goldstein) . It would,  therefore, seem  to be  a  matter  of  melancholy reflection if  the  courts  were  to  stay  their  hand  and countenance  laxity   or  condone   lapses  in  relation  to compliance  with   requirements  prescribed   by   law   for preventive detention.      In England  there was no suspension of the power of the courts to  issue a  writ of  habeas corpus  during the First World War and the Second World War. In India also, there was no   absolute   bar   to   approaching the courts during the

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Sino-Indian hostilities  of 1962  and the  Indo-Pak wars  of 1965 and 1971. It has not been suggested that because of the existence of  the powers  of the  court to  issue  writs  of habeas corpus  war efforts  were in  any  way  prejudicially affected. The  United Nations’  Economic and  Social Council endorsed the general agreement reached at the Baguio Seminar that "the  writ of habeas corpus or similar remedy of access lo the  courts to  test the  legality and  bona-fides of the exercise of  the emergency  powers should never be denied to the citizen".  It drew  attention to  the following  passage from the report of the seminar: "All members recognised that in times  of emergency  it might  be necessary  to  restrict temporarily the  freedom of  the individual.  But they  were firmly of  the view  that,  whatever  temporary  restrictive measures might  be necessary, recourse to the courts through the right  of habeas  corpus or  other similar remedy should never  be   suspended.  Rather  the  legislature  could,  if necessary,, subject  to well defined procedures safeguarding human dignity.  authorise the temporary detention of persons for  reasons  specified  in  the  law.  By  that  means  the executive can  act as emergency may require but the ultimate judicial protection  of  individual  liberty  is  preserved. Members hold  strongly that  it is  a fundamental  principle that the individual should never be deprived of the means of testing the  legality of  his arrest or. custody by recourse to judicial  process even  in times  of emergency.  If  that principle is departed from, the liberty of the individual is immediately put in great peril".      l  am,   therefore,  of  the  view  that  there  is  no sufficient ground  to interfere  with the  view taken by all the nine  High Courts  which went  into the matter, that the Presidential order  of June  27, 1975  did  not  affect  the maintainability of  the habeas  corpus petitions to question the legality of the detention orders and that such petitions could be proceeded with despite that order.      We may  now deal with the second question regarding the scope and  extent of judicial scrutiny in petitions for writ of habeas  corpus relating  to persons  detained under MISA. For this  purpose it would be appropriate to first deal with the position under the above law so far as cases not covered by section 16A are concerned.      According to  section 3(1)  of  MISA,  the  authorities specified in  the sub-section  may if satisfied with respect to any  person (including  a foreigner)  that with a view to preventing him from acting in any  manner prejudicial to (i) the defence  of India, the relations of India with foreigner powers, or the security of India, or (ii) the security of 294 the State  or the  maintenance of public order, or (iii) the maintenance  of  supplies  and  services  essential  to  the community, it  is necessary  so to   make an order that such person be  detained. The  words ’if satisfied" indicate that the satisfaction  of the  authority concerned is a condition precedent  to  the  making  of  a  detention  order.  Unless therefore  the  authority  concerned  is  satisfied  on  the material before  it than  it is necessary to detain a person with a  view to  prevent him  from indulging  in any  of the specified prejudicial activities, it has no power to make an order for  his detention. Section 3 also contains an implied injunction that the said authority shall not detain a person under that  section for  reasons other  than those specified therein. Although  the satisfaction contemplated by the sub- section is  the subjective  satisfaction  of  the  authority concerned, it  is necessary  that it should be arrived at in an objective  manner. It  is consequently essential that the

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facts on  the basis of which the authority concerned reaches the conclusion  that it  is necessary  to  detain  a  person should have  a rational  nexus or  probative  value  and  by germane to  the object  for which  such detention is allowed under section  3(1) of  MISA. In  case the  facts which  are taken into  account are  extraneous, not  germane or  do not have any  live link or reasonable connection with the object for which  the detention  order can be made, the order would be liable to be quashed. Even if one out of the many grounds on which  a detention  order is  based  is  not  germane  or legally not  tenable, the  detention order  would be quashed because it  is difficult to  predicate  that  the  detaining authority would have come to the requisite satisfaction even in the absence of that ground. It is plainly not possible to estimate as  to how  far the  irrelevant or untenable ground operated on  the  mind  of  the  appropriate  authority  and contributed to the creation of the satisfaction on the basis of which the detention order was made. To Say that the other ground which  still remains  is quite  sufficient to sustain the order  would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute.      A law  of preventive  detention  is  not  punitive  but precautionary. and  preventive. The power of detention under such law  is base(l  on circumstance of suspicion and not on proof of  allegation as  is required  at a regular trial for the commission  of an  offence. Such  a power  is  exercised because of  apprehension of  future prejudicial  activity on the part  of the person ordered to be detained judged in the light of  his past  conduct and  propensity. The  order  for preventive  detention   in  such   cases  postulates   prior restraint so  that the  mischief apprehended at the hands of the person ordered to be detained might not materialise. The consequences of waiting and declining to take action against that person  till the mischief is actually clone would quite often be disastrous and the nation may in some cases have to pay a  heavy price  for  such  abstention.  The  quantum  of material available regarding the conduct and propensity of a person may  not be sufficient to warrant his conviction in a court of  law for  an offence  and yet  if the  material  is germane to  the object for which detention order can legally be made  and the detaining authority is satisfied in view of that material  regarding the necessity of making a detention order, such  order made by that authority would be upheld as being in accordance with 295 law. It  is also  not difficult  to  visualise  a  situation wherein serious  crimes are  committed in broad daylight and yet the  witnesses to  the crime  are so  much terrified and awestricken that  they dare  not depose against the culprits in a  court of  law. In  such  cases  also  because  of  the difficulty of  securing the  conviction of the culprits, the courts have  upheld the  detention orders, if the activities of the culprits are of such a nature as has a nexus with the object for  which detention order can be made. In a petition for a  writ of  habeas corpus  the courts  do  not  normally question the veracity and sufficiency of the material on the basis of  which  the  authority  concerned  arrives  at  the conclusion regarding the necessity of detention. In case the detenu  challenges   the  correctness   or  truth   of   the allegations on  the basis  of which  the detention  order is made, he  should normally  do so  by means of representation contemplated by  clause (5)  of article 22. It is legitimate to expect  that the  authority concerned  and  the  advisory board when  the matter  comes up before them shall take into

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account the  stand  taken  by  the  detenu  regarding  those allegations.  It  would  be  also  their  function  to  give consideration to  any fresh  material which  may be produced before them  regarding the  truth and  correctness of  those allegations. In  a habeas  corpus petition,  if  it  becomes apparent on  the record  from  the  admission  made  by  the detaining authority  in the return or some other evidentiary material of  unquestioned authenticity  and probative  value that some  of the  alleged facts  upon the  basis  of  which detention order is made are non-existent, the court would be well justified  in quashing  the detention  order. A,  court apart from  that cannot  go behind  the truth of the alleged facts If  the material  is germane  to the  object for which detention is  legally permissible and an order for detention is made on the basis of that material, the courts cannot sit as a  court of  appeal and  substitute their own opinion for that of  the authority concerned and hold that the authority concerned  should   not  have   arrived  at  the  conclusion regarding the  necessity of  detention. At the same time, it is necessary that the authority concerned before deciding to detain a  person should  apply its  mind to the facts before lit in  a fair  and reasonable  manner.  If  the  conclusion arrived at  is so  unreasonable that no reasonable authority could ever  come to  it, the  legitimate inference  would be that the  authority concerned  did not apply its mind to the relevant  facts   and  did   not  honestly   arrive  at  the conclusion. To  use the  words of Lord Halsbury in Shrape v. Wakefield (1):           " ... when it is said that something is to be done      with in  the discretion  of  the  authorities  ..  that      something is  to be  done according  to  the  rules  of      reason and  justice, not  according to  private opinion      .... according  to law and not humour. It is to be, not      arbitrary, vague" fanciful, but legal and regular." Likewise, if  there were  no grounds,  as observed  by  Lord Morton in  Ross v.  Papadopollos(2), or  which the authority concerned could  he satisfied,  the court might infer either that the  authority did  not honestly form that view or that in forming it, the authority could not      (1) [1891] A. C. 172-at p. 179.      (2) [1958] 2 All. E. R. 23 (on p. 33). 296 have applied  its mind  to the  relevant facts.  The  courts would also  interfere if the power of detention is exercised malafide, not  in good  faith or for an ulterior purpose. It would follow  from the  above that if the power of detention is exercised  for an  improper purpose,  i.e., a purpose not contemplated by  the statute,  the order for detention would be quashed.      Between malice  in fact and malice ill law, as observed by  Viscount   Haldana  L.C.  in  the  case  of  Shearer  v. Shields(1), there  is  a  broad  distinction  which  is  not peculiar to any particular system of jurisprudence. A person who inflicts  an injury upon another person in contravention of the  law is  not allowed  to say  that he  did so with an innocent mind;  he is taken to know the law, and he must act within the  law. He  may, therefore,  be guilty of malice in law,  although,   so  far  as  the  state  of  his  mind  is concerned.,  he   acts  ignorantly,   and  in   that   sense innocently. Malice  in fact  is quite  a different thing; it means an  actual malicious  intention on  the  part  of  the person who  has done  the wrongful  act, and  it may  be, in proceedings based  on wrongs independent of contract, a very material ingredient in the question of whether a valid cause of action  can be stated. The above principle was applied by

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this Court  in detention  matters in  Bhut Nath  v. State of West Bengal(2).      Normally, it  is the past conduct or antecedent history of a person which shows a propensity or attendency to act in a particular  manner The  past conduct or antecedent history of a  person can,  therefore  be  appropriately  taken  into account in  making a  detention order.  It is indeed largely from the past events showing tendencies or inclinations of a person that  an inference can be drawn that he, is likely in the future  to act  in a  particular  manner.  In  order  to justify such  an inference.  it is  necessary that such past conduct or antecedent history should ordinarily be proximate in point  of time.  It  would,  for  instance,  be  normally irrational to  take into  account the conduct and activities of a  person which  took place  ten years before the date of his detention  and say  that  even  though  after  the  said incident took  place nothing  is known  against  the  person indicating his tendency to act in a prejudicial manner, even so on they strength of the said incident which is ten. years old, the  authority  is  satisfied  that  his  detention  is necessary. It  is both  inexpedient and  undesirable to  lay down an  inflexible test  as to  how far  distant  the  past conduct or  the antecedent  history should be for reasonably and rationally  justifying the  conclusion that  the  person concerned  if   not  detained  may  indulge  in  prejudicial activities. The  nature of  the activity  would have  also a bearing in  deciding the  question  of  proximity.  If,  for example, a  person who  has links  with a particular foreign power is  known to  have indulged  in subversive  activities when hostilities  broke out  with  that  foreign  power  and hostilities again  break out  with that  foreign power after ten years,  the authorities  concerned, if  satisfied on the basis of  the past activities that it is necessary to detain him with  a view  to preventing  him from acting in a manner prejudicial to the security of India, might well pass a      (1) [1914] A. C. 808.      (2) [1974] 3 S. C. R. 315. 297 detention order  in respect of that person. The fact that in such a  case there  is a  time lag  of ten years between the activities  of  the  said  person  and  the  making  of  the detention order would not vitiate such an order. Likewise, a remote prejudicial  activity may  be so  similar to a recent prejudicial activity  as may  give rise to an inference that the two  are a  part  of  chain  of  prejudicial  activities indicative of a particular inclination. In such an event the remote activity  taken along  with the recent activity would retain  its   relevance  and  reliance  upon  it  would  not introduce an  infirmity. If, however, in a given case and in the context  of the  nature of activity the time lag between the prejudicial activity of a detenu and the detention order made  because  of  that  activity  is  ex  facie  long,  the detaining authority  should explain  the delay in the making of the  detention order  with a  view to show that there was proximity between the prejudicial activity and the detention order. If  the detaining  authority fails to do so, in spite of an  opportunity having  been afforded  to it,  a  serious infirmity  would   creep  into   the  detention  order  (see Rameshwar Singh v. District Magistrate Burdwan & Anr.(1) and Sk. Abdul Munnaf v. State of West Bengal(2) .      One other  requirement of a valid order of detention is that the  grounds of detention which are communicated to the detenu should not be vague so that he may not be handicapped in making  an effective representation against the detention order. Both  article 22(S) of the Constitution and section 8

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( 1  ) of MISA refer to such representation and provide that the detaining  authority shall as soon as may be, and in any case not  later than  the prescribed  period, communicate to the person detained the grounds on which the detention order has been made "and shall afford him the earliest opportunity of making  representation against the order". In view of the Presidential order  suspending the right of a person to move any court  for enforcement  of specified fundamental rights, including  the   one  under   article  22(5),  it  may  with plausibility be  argued that  the vagueness  of  grounds  of detention would  not warrant  the quashing of such detention order during  the pendency  of the Presidential order on the score of  violation of article 22(S). The Presidential order would, however,  not stand  in the way of the court quashing the detention  order on  the score  of the  infirmity of the vagueness  of   grounds  of   detention   because   of   the contravention of section 8 ( 1 ) of MISA.      Every law  providing for  preventive detention contains certain procedural  safeguards. It  is imperative that there should be  strict compliance  with the requirements of those procedural safeguards  to sustain the validity of detention. Detention without  trial results  in  serious  inroads  into personal liberty  of an  individual. In  such  cases  it  is essential to  ensure that  there is  no deviation  from  the procedural safeguards  provided  by  the  statute.  In,  the matter of even a criminal trial? it is procedure that spells out much  of the  difference between the rule of law and the rule by  whim and  caprice. The need for strict adherence to strict procedural  safeguards is  much greater  when we  are dealing with preventive detention which postulates detention of a      (1) [1964] 4 S. C. R. 921.(2) A. 1. R 1974 S. C. 2066. 298 person even  though he is not found guilty of the commission of an  offence. To condone or allow relaxation in the matter of compliance with procedural requirements would necessarily have the  effect of  practically doing  away with  even  the slender safeguards  provided by  the legislature against the arbitrary use  of  the  provisions  relating  to  preventive detention. The  history of personal liberty, we must bear in mind, is largely the history of insistence upon procedure. I am,  therefore,   of  the  view  that  it  would  be  wholly inappropriate to  countenance any  laxity in  the matter  of strick compliance  with procedural  requirements  prescribed for preventive  detention. The observations made in the case of Kishori  Mohan v. State of West Bengal(1) have relevance. It was observed by this Court in that case .           "The  Act   confers  extraordinary  power  on  the      executive to  detain a  person without  recourse to the      ordinary laws  of the  land and  to  trial  by  courts.      Obviously, such  power places  the personal  liberty of      such a  person in  extreme peril  against which  he  is      provided with  a limited right of challenge only. There      can, therefore,  be no  doubt that such a law has to be      strictly construed.  Equally also, the power con feared      by such a law has to be exercised with extreme care and      scrupulously within the bounds laid down in such a law.      Question then  arises as to how far are the recitals in the order of detention binding upon the court, and upon whom and to  what extent  does the  onus lie  in a petition for a writ of habeas corpus relating to a detained person. In this respect I  find that  in the case of King Emperor v. Sibnath Banerji(2) the  Judicial Committee,  speaking  through  Lord Thankerton"  approved   the  following  observation  of  the learned Chief Justice of the Federal Court:

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         "It is  quite a  different thing  to question  the      accuracy of a recital contained in a duly authenticated      order, particularly where the recital purports to state      as a  fact the  carrying out  of what  I  regard  as  a      condition necessary  to the valid making of that order.      In the normal case the existence of such a recital in a      duly authenticated  order will,  in the  absence of any      evidence as  to its accuracy, be accepted by a court as      establishing   that   the   necessary   condition   was      fulfilled. The  presence of  the recital  in the  order      will place  a difficult burden on the detenu to produce      admissible evidence  sufficient  to  establish  even  a      prima facie case that the recital is  not accurate." The matter was considered by this Court’ by the Constitution Bench of  this Court  in the case of- G. Sadanandan v. State of Kerala & Anr. (supra) and it was observed as under:           "After all,  the detention  of a  citizen in every      case is  the result  of the  subjective satisfaction of      the appropriate  authority; and  so, if  a prima  facie      case is  made by  the petitioner  that his detention is      either mala  fide, or  is  the  result  of  the  casual      approach adopted by the appropriate authority, the      (1) A. T, R. 1974 S. C. 1749.      (1) 71 1. A. 241 . 299           appropriate  authority  should  place  before  the      Court sufficient    material  in  the  form  of  proper      affidavit made by a duly authorised person to show that      the allegations made by the petitioner about the casual      character of  the decision  or its  mala fides, are not      well-founded. The  failure of respondent No. 1 to place      any such material before us in the pre sent proceedings      leaves us no alternative but to accept the plea made by      the petitioner  that the order of detention against him      on the  20th October, 1965.1 and more particularly, his      continued detention  after the  20th October, 1965, ale      totally invalid and unjustified." The initial  burden is  on the  detenu to  show  that at his detention is mala fide or not in accordance with law. If the detenu makes  out a  prima facie  case, the burden shifts on the State  and it  becomes essential for the State to file a good return.  Once substantial disquieting doubts are raised by the  detenu in  the  mind  of  the  court  regarding  the validity of  his detention,  it would be the bounden duty of the State  to dispel  those  doubts  by  placing  sufficient material before  the court  with a  view to satisfy it about the validity  of the  detention. In case the detenu fails to discharge the  initial burden,  his  petition  for  writ  of habeas  corpus  would  be  dismissed.  Even  if  the  detenu discharges the  initial burden  and makes out a "prima facie case against  the validity  of his  detention, but the State files a  good return  and adduces sufficient material before the court  to show that his detention is valid, the detenu’s petition would  be dismissed.  In case, however,, the detenu discharges the  initial burden  and makes  out a prima facie case against  the validity  of his  detention and  the State fails to  file a  good return  and does not place sufficient material on  the record to show that the detention is valid, a serious infirmity would creep into the State case as might justify interference by the court and release of the detenu. More than that, it is not necessary to say for everything in the final analysis would depend upon the individual facts of the case. We may now turn to the newly added section 16A of MISA. This section was  inserted by  section 6  of Act  39 of 1975 with

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effect from June 29, 1975. Subsequently, there was a further amendment of  section 16A  by  Act  14  of  1976  which  was published on January 25 1976. According to subsection (1) of section 16A, the provisions of the section would have effect notwithstanding anything  contained in  MISA or any rules of natural justice during the period of emergency proclaimed on December 3,  1971 and June 25, 1975 or a period or 12 months from June  25., 1975 whichever period was the shortest. Sub- sections  (2)   and  (3)   provides  for  the  making  of  a declaration to  that effect  by the authorities concerned if they are  so satisfied on consideration that it is necessary to  detain  a  person  for  effectively.  dealing  with  the emergency. Sub-section  (2)  deals  with  cases  of  persons against whom  orders of detention were made under the Act on or after  June 25,  1975 but before the coming into force of this section,  viz., June  29, 1975?  while sub-section  (3) deals with  cases of detention in respect of persons-against whom orders  for detention  were made  after the coming into force of  the section.  The provision  to sub-sectional  (3) provides for review and the necessity of confirmation within fifteen days  of the  declaration by the State Government in case 300 such declaration  is made  by an  officer subordinate to the State  Government.  Sub-section  (2A)  provides  for  deemed approval of a detention order made by an officer subordinate to the State Government in case the State Government makes a declaration that  the detention  of the person ordered to be detained is  necessary  for  dealing  effectively  with  the emergency. Sub-section  (4) provides  for reconsideration at intervals not  exceeding four  months of  the  necessity  of detention of  a person  in respect  of whom a declaration is made under  sub-section (2) or (3). According to sub-section (5), in  making any review, consideration or reconsideration under  sub-sections   (2),  (3)   or  (4),  the  appropriate Government  or   officer  may   act  on  the  basis  of  the information and  materials in  its or his possession without communicating  or   disclosing  any   such  information   or materials to  the person  concerned  or  affording  him  any opportunity of  making any representation against the making under sub-section  (2)" or  the making  or confirming  under sub-section (3),  or the  non-revocation  under  sub-section (4), of  the declaration in respect of him. Sub-sections (6) and (7)  provide inter  alia that sections 8 to 12 shall not apply in  the case  of a  person detained  under a detention order to  which the  provisions of  sub-sections (2) and (3) apply. Sub-section  (8) authorises  the  Central  Government whenever it  considers it  necessary so to do to require the State Government  to furnish  to the  Central Government the information arid materials on the basis of which declaration has been  made or  confirmed or  not revoked  and such other information and materials as the Central Government may deem necessary.      It would  appear from  what has  been stated above that once a  declaration is  made with  respect to a detenu under sub-sections (2).  or  (3)  of  section  16A  of  MISA,  the provisions of  sections 8  to 12  of MISA would not apply to such a  detenu. The  result would be that the grounds of the order of  detention would  not be  disclosed to  the  person affected by  the order.  There would also be no reference of the case of such a person to the Advisory Board.      We may  now turn  to sub-section  (9) of  section  16A. According  to  this  sub-section,  notwithstanding  anything contained in  any other  law or any rule having the force of law, the  grounds on  which an order of detention is made or

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purported to  be made  under sections  against any person in respect of  whom a declaration is made under sub-section (2) or sub-section (3) and any information or materials on which such grounds  or a  declaration under  sub-section (2)  or a declaration or  confirmation under  sub-section (3)  or  the non-revocation under  sub-section (4)  of a  declaration are based, shall  be treated as confidential and shall be deemed to refer  to matters  of State  and to be against the public interest to  disclose and save as otherwise provided in this Act, no  one shall  communicate or  disclose any such ground information or  material or  any  document  containing  such ground information  or material.  According to clause (b) of sub-section (9) no person against whom an order of detention is made  or purported  to be  made under  section 3 shall be entitled to  the communication  or disclosure  of  any  such ground, information  or material as is referred to in clause (a) or the production to him of any document containing such ground, information or material. 301      So far  as the impact of section 16A(9) is concerned on the extent   of  the power  of judicial scrutiny in writs of habeas corpus  relating to persons detained under MISA, I am of the view that the matter should not be gone into in these appeals for the following reasons.      Out of  the nine  High  Courts  which  dealt  with  the question of maintainability of petitions for writs of habeas corpus, only  two, namely,  Rajsthan High  Court and  Nagpur Bench of Bombay High Court have gone into this aspect, while the other  seven have  not expressed and view in the matter. Both Rajasthan  High Court  and Nagpur  Bench of  the Bombay High Court have upheld the validity of section 16A(9). While Rajasthan High  Court has  not read  down the  provisions of section 16A(9) the Nagpur Bench of the Bombay High Court has expressed the view that it would be permissible for the High Court  to   can  for  and  peruse  the  grounds  in  certain circumstances. The  Nagpur Bench,  it may  be  pointed  out, dealt with  the provisions  of section 16 A(9), as they then existed before its amendment by Act 14 of 1976.      Before us  arguments have  been addressed  on behalf of the respondents  challenging the validity of section 16,A(9) on the  ground that  it is violative of article 226 inasmuch as it  prevents the  High Court  from effectively exercising the jurisdiction  under that  article to issue was of habeas corpus. In  my opinion, it would not be permissible in these appeals against orders disposing of preliminary objection to decide the  question of  validity of  section 16A(9).  It is manifest that  any decision  on the question of the validity of section  16A(9) would  result  either  in  upholding  the validity of the provision or in striking it down. The latter course  is   out  of   question  for  it  would  be  plainly impermissible to  strike down the provision in appeal by the State when the validity of such provision has been upheld by the High  Court. Like-wise,  it would  he  impermissible  in these appeals to record a finding that the ambit of judicial scrutiny is  greater than  that found by the High Court even though  this   Court  on   consideration  of   the  relevant provisions comes  to that  conclusion. There  is  no  appeal before us by the detenu-respondents. This Court in appeal by the State  cannot  enlarge  the  area  of  the  unfavourable decision qua  the State and make its position worse compared to what  it was  before the filing of the appeal. Procedural propriety in  matters relating  to appeals  forbids  such  a course. The  appeals before  us are  primarily  against  the orders of  the  High  Court  disposing  of  the  preliminary objections relating,  to the  maintainability  of  petitions

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under article  226 for writs of habeas corpus in view of the Presidential order.  The  question  of  extent  of  judicial scrutiny in  the light  of section 16A should, in my opinion be gone into when the whole matter is at large before us and we are  not inhibited  by procedural  and other  constraints from going  into certain aspects which have a vital bearing. It is primarily for the High Courts before which the matters are pending to decide the question area of judicial scrutiny in the  light of  section 16A(9),  as amended  by Act  14 of 1976. A  course which  has the  effect of bypassing the High Courts and  making this  Court in  appeals  from  orders  on preliminary objection  to decide  the matter even before the matter has been considered by the High Court in the light of section 16A,  as amended  by Act  14 of  1976" should, in my opinion, be avoided. 302      The observations on pages 658 and 659 in the case of J. K. Synthetics Ltd. v. J. K. Synthetics Mazdoor Union (1) can be of  no assistance in this case because what has been laid down there is that the respondent can support an award of an Industrial Tribunal  on a  ground no adopted by the Tribunal so long  as in  the final  result the amount award ed is not exceeded. The  observations in  that case do not warrant the enlargement of  the area of unfavourable decision against an appellant in the absence of an appeal by the respondent. Nor does that  decision justify adoption of a course which might conceivably lead to such result. Likewise, no assistance can be  derived   from  clause   (3)  of   article  132  of  the Constitution because of the fact that the appeal against the order of the Rajsthan High Court has been filed in pursuance of a  certificate of fitness granted under that article. The only point  on which  the Rajasthan  High Court  has decided against the  appellant is  regarding the  maintainability of the petition under article 226. The effect of article 132(3) would only  be that  it would  be permissible  to assail the order of  the High  Court on the question of Maintability of the petition  under article  226  not  only  on  the  ground relating to  the question of as to the interpretation of the Constitution mentioned in the order granting the certificate but also  with the  leave of this Court on other grounds. It is, however,  not the  effect of  article 132(3) that if the High Court  in  the  impugned  order  decides  two  distinct preliminary issues, one in favour of one party and the other in favour  of the opposite party, this Court in an appeal by only one party against that order of the High Court can also go into  the correctness of the issue which has been decided in favour of the appellant. The fact that the respondents in these appeals have as a matter of abundant caution addressed arguments on  sub section  (9) of  section 16A,  so that the submissions of  the appellants  on that point may not remain unanswered, would  not justify  departure from the principle that this  Court cannot,  in the absence of an appeal by the respondent, adopt  a course  which might conceivably enlarge the area of unfavourable decision against the appellant.      I am,  therefore, of  the  view  that  the  appropriate occasion for  going into  the question of the constitutional validity of  section 16A(9)  of MISA  and its  impact on the power and  extent of  judicial scrutiny  in writs  of habeas corpus would  be when  the State  or  detenu,  whosoever  is aggrieved, comes  up in appeal against the final judgment in any of  the petitions  pending in the High Courts. The whole matter would  then be at large before us and we would not be inhibited by  procedural and  other constraints  referred to above. It would not, in my opinion, be permissible or proper to short  circuit the  whole thing  and decide the matter by

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bypassing the High Courts who are seized of the matter.      I may now summarise my conclusions:           (1) Article 21 cannot be considered to be the sole      repository of the right to life and personal liberty.           (2) Even  in the  absence of  article  21  in  the      Constitution, the  State has  got no power to deprive a      person of  his life  or personal  liberty  without  the      authority of law. That is      (1) [1972] 1 S. C. R 651. 303      the essential  postulate and  basic assumption  of  the      rule of law in every civilised society.           (3) According  to law in force in India before the      coming into  force of the Constitution, no one could be      deprived of  his life  or personal  liberty without the      authority of  law. Such  a law continued to be in force      after the coming into force of the Constitution in view      of article 372 of the Constitution.           (4) Startling  consequences would  follow from the      acceptance of  the contention  that consequent upon the      issue of  the Presidential order in question no one can      seek relief  from courts during the period of emergency      against deprivation  of life  and personal  liberty. If      two  constructions   of  the  Presidential  order  were      possible, the  court should  lean in  favour of  a view      which  does   not  result   in  such  consequence.  The      construction which does not result in such consequences      is  not   only  possible,   it  is   also  preeminently      reasonable.           (5) In  a long chain of authorities this Court has      laid stress  upon the  prevalence of the rule of law in      the country,  according to  which the  executive cannot      take action  prejudicial to  the right of an individual      without the  authority of law. There is no valid reason      to depart  from the  rule laid  down in those decisions      some of  which were  given by  Benches larger  than the      Bench dealing with these appeals.           (6)  According  to  article  21,  no  one  can  be      deprived or  his life  or personal  liberty  except  in      accordance with procedure established by law. Procedure      for the  exercise of power of depriving a person of his      life or  personal liberty  necessarily  postulates  the      existence of  the substantive power. Then article 21 is      in force,  law relating  to  deprivation  of  life  and      personal liberty  must provide both for the substantive      power as  wen as the procedure for the exercise of such      power. When  right to move any Court for enforcement of      right guaranteed  by article  21 is suspended, it would      have the  effect of  dispensing with  the necessity  of      prescribing procedure  for the  exercise of substantive      power to  deprive a  person of  his  life  or  personal      liberty, it  cannot have  the effect  of permitting  an      authority to  deprive a  person of his life or personal      liberty  without  the  existence  of  such  substantive      power.           (7) A  Presidential order under article 359(1) can      suspend during  the period  of emergency only the right      to move  any court  for enforcement  of the fundamental      rights  mentioned  in  the  order.  Rights  created  by      statutes being  not fundamental  rights can be enforced      during the period of emergency despite the Presidential      order.  Obligations   and  liabilities   flowing   from      statutory provisions  likewise remain unaffected by the      Presidential order.  Any redress sought from a court of      law on  the score  of breach  of statutory  pro visions

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    would be  outside the purview of article 359(1) and the      Presidential order made thereunder. 304           (8) Article  226 under  which the  High Courts can      issue writs of habeas corpus is an integral part of the      Constitution. No  power has  been  conferred  upon  any      authority in  the Constitution for suspending the power      of the  High Court  to issue  writs in  the  nature  of      habeas corpus  during the  period of  emergency. Such a      result  cannot   be  brought   about  by  putting  some      particular construction  on the  presidential order  in      question           (9) There  is no  antithesis between  the power of      the State  to detain a person without trial under a law      of preventive  detention and  the power of the court to      examine the  validity of  such detention. In exercising      such power  the courts  only ensure  that the detaining      authority acts in accordance with the law providing for      preventive detention.           (10) There  is no  sufficient ground  to interfere      with the  view taken  by an  the nine High Courts which      went into  the matter that the Presidential order dated      June 27, 1975 did not affect the maintainability of the      habeas corpus petitions to question the legality of the      detention orders.           (11) The  principles which  should he  followed by      the courts  in dealing  with  petitions  for  writs  of      habeas corpus   to  challenge the legality of detention      are well-established.           (12) The appropriate occasion for this Court to go      into the  constitutional validity of section 161A(9) of      MISA and its impact on the power and extent of judicial      scrutiny in  writs of  habeas corpus  would be when the      State or  a detenu  whosoever is aggrieved, comes up in      appeal  against  the  final  judgment  in  any  of  the      petitions pending  in the High Courts. The whole matter      would then  be at  large before this Court and it would      not be  inhabited by  procedural and other constraints.      It would not be permissible or proper for this Court to      short circuit  the whole thing and decide the matter by      by-passing the  High  Courts  who  are  seized  of  the      matter.      Before I  part with  the case,  I may  observe that the consciousness that  the view  expressed by me is at variance with that  of the  majority of  my learned  brethern has not stood in  the way  of my ex pressing the same. I am aware of the  desirability   of  unanimity,  if  possible.  Unanimity obtained  without   sacrifice  of  conviction  comments  the decision to  public confidence.  Unanimity which  is  merely formal and  which is  recorded  at  the  expense  of  strong conflicting views  is not  desirable  in  a  court  of  last resort. As  observed by  Chief Justice Hughes (1) judges are not there  simply to  decide cases,  but t to decide them as they think  they should  be decided,  and while  if  may  be regrettable that they cannot always agree, it is better that their independence  should be maintained and recognized than that unanimity  should be  secured through  its sacrifice. A dissent in  a court  of last  resort to use his words, is an appeal lo the brooding spirit of the law to the intelligence of a  future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.      The appeals are disposed of accordingly.      (1) Prophets with Honor by Alan Barth, 1974 Ed. P. 3-6. 305

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    BEG, J.  The two  principal questions  placed before us for determination  in these  appeals from decisions given by various High  Courts, on  certain preliminary  objections to the maintainability  and hearing of Habeas Corpus petitions, under Article  226 of  our Constitution, have been stated as follows by the Attorney General of India:-           1.   Whether, in  view of  the Presidential  order                dated June  27, 1975,  under  Clause  (1)  of                Article   359,    any   writ    petition   is                maintainable under Article 226, before a High                Court for  Habeas Corpus to enforce the right                to personal  liberty  of  a  person  detained                under the  Maintenance of  Internal  Security                Act on the ground that the order of detention                or  the   continued  detention  is,  for  any                reason,  not  under  or  in  compliance  with                Maintenance of Internal Security Act ?           2.   If such  a petition  is maintainable, what is                the scope  or ex  tent of  judicial scrutiny,                particularly,  in   view  of   the  aforesaid                Presidential order  which covers, inter alia,                Clause (5) of Article 22, and also in view of                sub-section  (9)   of  Section   16A  of  the                Maintenance of Internal Security Act ?      If the  only reason  on which  a detention is assailed, could be  that the provisions of the Maintenance of Internal Security Act  26 of  1971 (hereinafter  referred to  as ’the Act’) have  not been  complied with,  there could  be little difficulty in  holding, having  regard to  the  natural  and obvious meaning  of the suspension of "the right to move any Court for  the enforcement"  of  the  fundamental  right  to personal  liberty,   protected  by   Article   21   of   the Constitution, that this right, with whatever it evolved from or embraced,  could not  be the  basis for  any claim to its enforcement during  the Emergency. An that would then remain to consider  would be  the exact point at which and the form in which  the order  of the  Court denying the petitioner an enforcement of  the right  could be passed. The last part of the first  question, however,  also brings  into the area of discussion the case where a petitioner alleges that "for any reason" his  detention  fans  completely  outside  the  Act. Detenues allege  not merely  infraction of some provision of the Act,  under which  a detention  is  ordered,  but,  more often, that  the detention is for extraneous reasons falling either entirely or partially outside the Act. "Malafides" is almost invariably  alleged presumably on the assumption that almost everything  the detenue  considers  either  wrong  or erroneous or improper must be "mala fide".      Arguments addressed  to us  on behalf  of the  detenues have raised  a host of hypothetical questions, such as: What would be the position if the order of detention, on the face of it,  either fans  outside the provisions of the Act or is made mala  fide ? Would a detention order, by any Government servant without  even an  ostensible or  purported statutory authority to  support it, not stand on the same footing as a detention  by   a  private   person?  Would  remedy  against detention which  may be  patently illegal.  without need for any real  investigation into  facts at  an also  be barred ? Could remedy  by way  of a writ of Habeas Corpus against any illegal detention by any one in this country,      22-833 Sup CI/76 306 under any  circumstances, be held to be suspended during the Emergency ?  The next  steps in  the argument  on behalf  of detenues consisted  of attempts  to show that there could be

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no distinction  in principle,  between an  order  which  is, prima facie, ultra vires or made mala fide and one which can be shown  to be  that only  if the  facts and  circumstances surrounding a  detention were fully investigated in a Court. Processes of  reasoning, based  on  hypothetical  cases  put forward for consideration by us, by learned Counsel for tile detenus  seek,   by  stages   to  so   expand  the  area  of maintainability and  investigation on  claims for  writs  of Habeas Corpus  in the  High Courts  that, if we accept them, the result would be that Article 359 of the Constitution and the Presidential  orders of  1975 made under it would become entirely meaningless and infructuous.      It seems  to me  that the  two questions set out above, could very wen be compressed into a single question: To what extent, if  at an,  can a  High Court  be moved  to assert a right to  personal liberty,  by means  of a  petition  under Article 226  for a  writ of  Habeas Habeas Corpus during the operation of the Presidential order of 27th June, 1975 ?      Speaking for myself, I am extremely reluctant to embark on a  consideration and  decision of  any "pure" question of law. In   cases  coming up before Courts, no question of law can be  "pure" in  the sense  that it  has no bearing on the facts of  a particular  case to which it must necessarily be related.  Neither   Article  136  nor  Article  226  of  the Constitution is  meant  for  the  exercise  of  an  advisory jurisdiction. Attempts  to lay  down the  law in an abstract form, unrelated  to the  facts of particular cases, not only do not  appertain to  the kind  of jurisdiction exercised by this Court  or by  the  High  Courts  under  the  provisions mentioned above,  but may  result in  misapplications of the law declared by Courts to situations for which they were not intended at an.      Learned Counsel for the detenus have tried to induce us to  answer   many  questions   which  may  arise  in  purely hypothetical situations  some of  which seem to me to be far removed from  the realms  of reality.  We cannot assume that those who  exercise powers  of detention are bound to do so, as a  rule, as though they were demented reports without any regard for  law, justice,  reason, or  honesty  of  purpose, solely for  achieving objects  other than  those  which  are really meant  to be  served by the Act. Both sides, however, desire that  we should  answer questions  indicated above on the assumption  that the  provisions of law contained in the Act have  been infringed,  in some  way,  by  the  detaining authorities in  a particular  case. They want us to indicate degrees of  transgression of  the provisions  of the Act, if any, which  can justify  interference by  the High Courts in Habeas Corpus  proceedings. As  the facts  of no  particular case are  before s, we can only answer the questions before us  with   the  help,   where  necessary,   of   appropriate hypothetical examples.      The learned  Attorney General  has,  very  frankly  and honestly, submitted  that there  was no  need to bestow upon actions of the detaining authorities the protection given to them only for the duration of the Emergency proclaimed under Article 352(1 ) of the Constitution, if the 307 President did not really intend to confer certain immunities from judicial  scrutiny and  interference upon detentions by executive authorities, even if some of them were contrary to the letter of the law, so that certain over-riding interests of  national   security  and   independence   may   not   be jeopardized. The  Attorney General’s  submission is that the risks of  misuse of  powers by  the detaining  officers  and authorities, which  are certainly there, must be presumed to

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have been  over-ridden by  the  higher  claims  of  national security which the proclamation of emergency denotes. It was pointed out  that a  citizen, or  other person  who may have been unfairly  or illegally detained due to some unfortunate misapprehension  or   error,  does   not  loose  his  remedy altogether.  Only   his  right  to  move  a  Court  for  the enforcement of  any of  the rights  conferred by Part III of the Constitution  would be  suspended for the time being. He could always  approach higher  Governmental authorities. All of them could not be so unreasonable as to deny redress in a case of genuine injustice.      The propositions thus stated appear to be so reasonable and are  so wen founded, as I shall endeavour to show later, in the  course of  this judgment,  in the Constitutional and legal history  and the  case law  of other countries, during periods of Emergency, from whose constitutions what has been described as  the "ancient  writ of  habeas Corpus" has been taken and  transplanted into  our Constitution  that it  may seem somewhat  surprising that  their correctness  should be doubted or denied at an. The propositions have, however, not only been vehemently assailed but the attacks upon them were sought to  be supported by attempts to engraft theories upon our Constitution  which, if  accepted, win destroy the basic principle of the supremacy of the written Constitution which I attempted,  in Smt. Indira Nehru Gandhi v. Shri Raj Narain (1), to explain at some length.      If the clear and unequivocal language of Article 359(1) of our  Constitution is  the bed-rock  on which the Attorney General’s arguments to sustain the preliminary objections to the maintainability  of Habeas  Corpus petitions  during the Emergency rest,  learned Counsel  for the  detenus have  put forward theories  of a nebulous natural law and a common law which, on close scrutiny, appear to me to resolve themselves into what  according to  the notions  of learned Counsel for the detenus,  the law  ought to  be. Strenuous attempts have been made  to dress  up these notions in the impressive garb of the  "Rule of  Law" which  evokes the genuine and our and respectful devotion of lawyers and public spirited citizens. But,  the   mere  veneration   of  a   caption  without   an understanding of what it really denoted in the past and what it  means   or  should  mean  today,  is  another  name  for obfuscation of thought.      Even in  England, the  reputed home of the Rule of Law, the rather loose, general, and in exact meaning given to the term by  Dicey to  describe and  glorify  certain  assumedly special characteristics  of the  English Constitution,  have given place  to more  realistic,  critical,  and  scientific views of the "Rule of Law" and what Dicey meant: by it. Sir      (1) [1976] 2 S.C.R.347. 308 Ivor Jennings,  in "The  Law and the Constitution" (3rd Edn. p. 296) pointed out: .           "Dicey  honestly   tried  (in   The  Law   of  the      Constitution, not  in his  polemical works) to analyse,      but, like most, he saw the Constitution through his own      spectacles, and his vision was not exact. The growth of      the new  functions of  the State  has made  much of his      analysis  irrelevant.   Moreover,  the   argument  from      history  or,   what  is   the  same   thing,  from  the      Constitution must  be used with discretion. To say that      a new  policy is  ’unconstitutional’ is  merely to  say      that it is contrary to tradition, and it must always be      considered whether  the tradition  is relevant  to  new      circumstances.  Even  if  the  rule  of  law  as  Dicey      expounded  it  had  been  exact,  it  would  not  be  a

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    sufficient argument  to say  of any  proposal,  as  the      Committee on  Ministers’ Powers  said on a minor point,      that it was contrary to the rule of law".      Those who  glibly talk of the Rule of Law, as expounded by Dicey,  forget that  Prof. Dicey  had made a very gallant and effective  (I would  not like  to use  here a colloquial expression, "desperate",  to describe  it) attempt  to repel the correctness  of what  he caned  "the dark  saying" of de Tocqueville   that   the   largely   conventional   "English Constitution has  no real  existence ’elle  n’existe point)" (See: page  22 of  the Dicey’s "Introduction to the Study of the Law  of the Constitution"-10th Edn.). He was at pains to show that  the Constitutional  Law of Eng land did exist. It lived and  functioned not  only in  the hearts  and minds of Englishmen, also  reflected in  Parliament, but  through the force of  healthy conventions  and highly disciplined habits of life and thought of the British people. These conventions and habits  had, behind  them, the  sanction not  only of  a powerful and  intelligent public  opinion but  also  of  the control by  the Houses of Parliament, wrested from the Crown in the course of historic constitutional struggles, over the finances of  the nation. Dicey distinguished this peculiarly British Constitutional  Law from  "political ethics"  which, according to  him, was "mis-called Constitution Law". It was not, he  pointed  out,  International  law,  the  "vanishing point" of law.      Dicey succeeded,  at least  so far  as his statement of the Rule  of Law  is concerned,  in doing  nothing more than indicating,  under  this  heading,  certain  common  guiding principles for  Courts as  wen as Legislators to follow when they needed  these. Hence,  he said that the Rule of law and the legal  Sovereignty of Parliament were allies in England. According to  him, both  these principles  so operated as to always support  and strengthen  each other.  This idealistic rosy optimism,  reflecting the  Whig  tradition  of  minimum interference with  individual freedoms  and representing the Constitutional jurisprudence  of the  hey-day of  a  laissez faire  British  economic  prosperity,  was  destined  to  be displaced by  the more "down to the earth" pragmatism of the Twentieth  Century  Britain,  attempting  to  meet  economic difficulties and  distress through  socialistic planning and to build  a welfare  State by  making laws which appeared to those brought  up on  the traditional  postulates of Dicey’s Rule of Law to deny the validity of its basic assumptions. 309      The first of these assumptions or meanings was that any depravation of personal liberty or property must not only be for a  "distinct breach  of law"  but  "established  in  the ordinary legal  manner before  the ordinary  Courts  of  the land". He  contrasted this  "with every system of government based on  the exercise  by persons  in  authority  of  wide, arbitrary,  or   discretionary  powers  of  constraint".  He concluded, from  what he  regarded as a basic Feature of the British Constitution,  that an  modes of dispensing justice, through specialised  administrative authorities  and bodies, must necessarily  be autocratic  and unfair. He compared the British system  with the  one under which Voltaire, in 1717, was "sent  to the  Bastille for  a poem  which  he  had  not written, of  which he  did not know the author, and with the sentiments of which he did not agree". The second assumption of Dicey’s Rule of law was. "Every man, whatever be his rank or condition,  is subject  to the  ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals". He overlooked the not infrequent injustice caused in England of his  time, due  to want  of adequate remedies against the

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servants of  the Crown,  by applications  of the maxim: "The King can  do no  wrong". He  wrote "With  us every official, from the  Prime Minister  down to a constable or a collector of taxes,  is under  the same  responsibility for  every act done without  legal justification as any other citizen". The third assumption  on which  Dicey’s Rule  of Law  rested was what he  caned "the  predominance of the Legal Spirit" which he  described   "as   a   special   attribute   of   English Institutions". He explained:           "We may  say that  the constitution is pervaded by      the  rule  of  law  on  the  ground  that  the  general      principles of  the constitution  (as  for  example  the      right to  personal liberty,  or  the  right  of  public      meeting) are  with us  the result of judicial decisions      determining the rights of private persons in particular      cases brought  before the  Courts; whereas  under  many      foreign constitutions  the security  (such  as  it  is)      given to  the rights of individuals results, or appears      to  result   from  the   general  principles   of   the      constitution". Dicey observed:           "There is  in the  English constitution an absence      or these  declarations or definitions of rights so dear      to   foreign   constitutionalists.   Such   principles?      moreover,  as   you  can   discover  in   the   English      constitution  are,   like  an   maxims  established  by      judicial legislation, mere generalisations drawn either      from the decisions or dicta of judges, or from statutes      which, being  passed to meet special grievances, bear a      close resemblance  to judicial  decisions, and  are  in      effect  judgments  pronounced  by  the  High  Court  of      Parliament. To  put what  is really the same thing in a      somewhat different shape, the relation of the rights of      individuals to  the principles  of the  constitution is      not quite the same in countries like Belgium, where the      Constitution is the result of a legislative act, as‘ it      is in  England, where  the constitution itself is based      upon legal decisions". 310      Thus, Dicey  depicted  the  British  Parliament,  while performing even-its  legislative functions,  as if  it was a Court following  the path  shown by  judges fined  with  the spirit of  law and with meticulous concern for an the canons of justice.  He concluded: "Our Constitution, in short, is a Judge-made Constitution  and it  bears on  its face  an  the features, good and bad, of judge made law".      Dicey thought that the difference between the unwritten British Constitution and a written Constituion, such as that of Belgium,  was not  merely  a  formal  one,  but  revealed entirely differing approaches to basic freedoms. He observed .           "The matter  to be  noted is, that where the right      to individual  freedom is  a result  deduced  from  the      principles of the constitution, the idea readily occurs      that the  right is  capable of being suspended or taken      away. Where, on the other hand, the right to individual      freedom is  part of  the  constitution  because  it  is      inherent in  the ordinary law of the land, the right is      one which  can hardly  be destroyed  without a  through      revolution in  the  institutions  and  manners  of  the      nation."      After making  the distinction  mentioned  above,  Dicey deals with  "the so-called  suspension of  the Habeas Corpus Act". He said that it bears "a certain similarity to what is caned in  foreign countries  ’suspending the  constitutional

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guarantees’ ".. He euphemistically, explained:           "But, after  an, a  statute suspending  the Habeas      Corpus Act  falls very  far short  of what  its popular      name seems  to imply;  and  though  a  serious  measure      enough, is  not, in  reality, more than a suspension of      one particular  remedy for  the protection  of personal      freedom. The Habeas Corpus Act may be suspended and yet      Englishmen may enjoy almost all the rights of citizens.      The constitution  being based  on the  rule of law, the      suspension of  the constituion,  as far as such a thing      can be  conceived possible,  would mean with us nothing      less than a revolution". If Dicey,  bewitched by the beauties of an unwritten British Constitution  could   have  been   shocked  by   any  modern transgressions of the basic principles of his "Rule of Law"- in the  Introduction to  later editions  of his  book, Dicey modified his  earlier views,  to  some  extent,  about.  the nature and  purposes of  "Droit Administratif", accepted the inevitability   of   change,   and   noticed   the   logical consequences of  what he  himself had described, in his "Law and opinion  in England", as the Collectivist or Socialistic trend-he  would   have  been   even  more   shocked  by  the proposition that  the cherished  principles of  his Rule’ of Law  could  override  the  statute  law  which  the  British Parliament could  make and  unmake in  the exercise, of what Dicey called  the "Sovereignty  of Parliament". The truth is that Dicey  did not,  at first  visualise the possibility of any conflict  between the  Rule of Law and the principles of Parliamentary  Sovereignty   in  England.   And,   correctly understood and applied, there should not be serious conflict between  them.   But,  are   principles   always   correctly understood and applied ? 311      Jennings critically  commented upon Dicey’s views (See: "The Law and the Constitution" 3rd Edn. p. 294) as follows:           The rules  which in  foreign  countries  naturally      form part of a constitutional code "mostly do not exist      in England,  for the recognised (or legal) supremacy of      Parliament presents  any  fundamental  distribution  of      powers and forbids the existence of fundamental rights.      The supremacy  of Parliament is the Constitution. It is      recognised  as   fundamental  law  just  as  a  written      constitution is  recognised as  fundamental law Various      Public.,  authorities   the  Crown,   the   Houses   of      Parliament, the  courts, the administrative authorities      have powers  and duties. Most of them are determined by      statute. Some  are traditional, and so are ’determined’      by  the   common  law.  The  powers  of  administrative      authorities in  respect of  ’fundamental liberties’ are      mainly contained  in statutes.  But even  if they  were      not, I  do not understand how it is correct to say that      the  rules   are  the  consequence  of  the  rights  of      individuals and  not their  source. The  powers of  the      Crown  and  of  other  administrative  authorities  are      limited by  the rights of individuals; or the rights of      individuals  are   limited  by   the  powers   of   the      administration. Both  statements are  correct; and both      powers and rights come from the law-from the rules".      Thus, Jennings  pointed out  that what was material was the existence of rules, as a part of Constitutional law, and not their  sources or forms. He tried to show that the basic rule being  the supremacy  of Statutory  law that  was  "The Constitution" in  Britain. No  other rule could compete with it or  stand in its way or be a substitute for it. Dicey, on the other  hand, believed that the difference in sources and

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forms of  rules made  a great  difference  in  approach  and outlook. But,  Dicey also treated the judge-made Rule of Law and the  rights "guaranteed"  by a  written constitution  as alternatives or  different modes  of protecting same species of rights.  He never  dreamt of  looking upon  them both  as simultaneously  existing   and  available  Under  a  written Constitution  in   addition  to  what  such  a  Constitution contained.      Dicey, indicated  the  basic  distinction  between  the Constitutional  position   in  England"  with  an  unwritten Constitution where  the supremacy  of Parliament  prevailed, and that  in the  United States  of America,  with a written Constitution which was supreme. But, despite the differences in the logical consequences of an unwritten constitution, in a  country  so  largely  governed  by  its  conventions  and disciplined habits  of life  and thought as Dicey’s England, and those  of the  written Constitution  of the  U.S.A., one common feature, snared by both English and American systems, was the  large amount  of judicial Constitutional law making which took place in both countries.      In Britain, although the Parliament is the supreme law- giver, yet,  as Dicey pointed out, there was, out of respect for the judicial function and the Rule of Law, an acceptance of judge  made law  as the  constitutional law  of the  land which the Parliament could alter, whenever it 312 liked, but  did not  think of altering presumably because it served very  wen, the needs of British people who took pride in their judge made law. Of course, if Parliament did make a law  on   any  subject   and  it   has  made  some  laws  on Constitutional matters  also the  Courts could  not think of questioning the validity of the law so made.      In America,  not only  was  the  doctrine  of  judicial review of  legislation, established  by Marshall,  C. J., in Marbury v.  Madison  (1)  but  the  "due  process"  clauses, introduced by  the 5th  amendment (1791)  and  by  the  14th amendment (1868)  of the  American Constitution,  became the most prolific  sources of  judicial law-making. They gave to the American Courts an amplitude of power to indulge in what is  caned  "judicial  legislation"  which  our  Constitution makers, after  considerable debate, deliberately eschewed by using the expression ’’procedure established by law" instead of the  "due process  of law". Willis, adverting to the very skeletal character of the American Constitution, said:           "Our original Constitution was not an anchor but a      rudder. The Constitution of one period has not been the      Constitution of  another  period.  As  one  period  has      succeeded another,  the Constitution  has become larger      and larger."      In A.  K.  Gopalan  v.  The  State  of  Madras,(2)  the earliest  case   in  which  a  comprehensive  discussion  of fundamental guaranteed  freedoms in  our  Constitution  took place, Kania,  C. J.,  after referring  to  observations  of Munro, of  James Russen  Lowen, of  Winis, and of Cooley, on the American  Constitution, noted  about the  nature of  our Constitution (at p. 109):           "The  Constitution   itself  provides   in  minute      details the  legislative powers  of the  Parliament and      the State  Legislatures. The same feature is noticeable      in the  case of the judiciary, finance, trade, commerce      and services.  It is  thus quite detailed and the whole      of it  has to  be read  with the same sanctity, without      giving undue  weight to Part III or article 246, except      to the  extent one  is legitimately and clearly limited      by the other".

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    The position  in this  country is  clearly one in which the fundamental  law found in the Constitution is paramount. The Constitution  provides the  test for  the validity of an other laws. It seeks to deter mine. the spheres of executive and legislative and judicial powers with meticulous care and precision. The judicial function, though wider in range when interpreting or applying other articles of the Constitution, particularly Articles 14 and 19, the enforcement of which is also suspended  during the  current Emergency, is especially constricted by  the elaborate  provisions of Articles 21 and 22,  which   deal  with   personal  liberty  and  preventive detention. The  wider the sweep of the provisions of Article 21 and  22 the more drastic must be the effect of suspending their enforcement.  After an, suspension does not and cannot mean retention under a disguise.      (1) (1803) (1 Cranch 137).      (2) [1950] S. C. R. 88 @ p. 109. 313      The only  Rule of Law which can be recognised by Courts of our   country  is what is deducible from our Constitution itself. The  Constitution is,  for us, the embodiment of the highest "positive  law" as  wen as  the reflection of an the rules of  natural or  ethical or  common law Lying behind it which can  be recognised  by Courts.  It seems  to me  to be legally quite  impossible to  successfully  appeal  to  some spirit of  the Constitution  or to  any law  anterior to  or supposed to  lie behind  the Constitution  to frustrate  the objects of  the express provisions of the Constitution. I am not aware of any Rule of Law or reason which could enable us to do  that. What  we are asked to do seems nothing short of building some imaginary parts of a Constitution, supposed to lie behind  our existing  Constitution, which could take the place of  those parts  of our Constitution whose enforcement is suspended  and then  to enforce  the substitutes. And, we were asked  by some  learned Counsel,  though not  by an, to perform this  ambitious task of judicial Constitution making without even  using the  crutches of  implied imperatives of our Constitutional  provisions as though we had some plenary legislative Constituent  powers. Fortunately, Judges in this country have  no such powers. And, those who are meant to so function as  to keep  the other  authorities and  organs  of State within  the limits  of their  powers cannot themselves usurp powers  they do  not possess.  That  is  the  path  of descent into  the arena of political controversy which is so damaging  for  the  preservation  of  the  impartiality  and prestige of  the Judicial  function. We  cannot,  therefore, satisfy those who may feel the urge, as Omar Khayyam did "to shatter" what  they regard  as "this  sorry scheme of things entire" and  to "remould" it nearer their "heart’s desire"’. I think  we must make it clear that the spirit of law or the Rule of  Law, which  we recognise, cannot, however ominously around like  some disembodied  ghost serving as a substitute for the  living Constitution  we actually have. It has to be found always  within and operating in harmony with and never outside or in contact with what our Constitution enjoins. An that  we   can  do   is  to   faithfully  explain  what  the Constitution and  its spirit  mean. We cannot alter or twist these.      The distinction made above between law as it exists and as it  has to  be recognised  and enforced  by  the  State’s judicial organs, and "the law", if we may can it that at an, which could  only constitute  some rules of ethics but could not be  enforced at an, whatever may be its moral worth, was thus stated  by John  Codman Hurd in his "Law of Freedom and Bondage in  the United States" (Negro Universities Press New

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York (Vol. I, at p. 3):           "Now, jurisprudence  is taken to be the science of      a rule  not merely  existing, but one which is actually      operative or  enforced in  or by  the win of society or      the state.  The Science  of what  rule ought to be made      operative by the win of the state is a different thing;      it is  a science  of rules  regarded only  as existing,      whether operative  in civil society-that is enforced-or      not.           A rule made operative by the authority of society,      or  of  the  state,  is  a  rule  identified  with  the      expressed win of so 314      ciety or  of the State. The win of the state, indicated      in some  form of expression, is the law, the subject of      jurisprudence, and  no natural  rule which  may  exist,      forms a  part of the law unless identified with the win      of the  state so  indicated. What the state wins is the      conterminous measure  of law,  no pre  existing rule is      the measure of that win".      John Codman  Hurd went  on to  point out  that judicial authorities constituted  by the State can only carry out the mandates  of   the  positive  law  which,  for  purposes  of enforcement, must  be deemed  to embody  an the pre-existing enforceable natural and ethical values.      Enforceability, as  an attribute  of a legal right, and the power of the judicial organs of the State to enforce the right,  are   exclusively  for   the  State,  as  the  legal 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 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 an  such rights  is not  suspended. Even  the enforcement of  specified rights through Courts is suspended for the time being.      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.      It may be that many moral and natural obligations exist outside the  Constitution and even outside any positive law- this is  not denied  by the  learned Attorney  General at an but, their  existence is not really relevant for purposes of petitions for  writs of  Habeas Corpus  which  lie  only  to enforce Legally  enforceable rights.  Neither the  existence

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nor the  possibilities of  denials  of  any  rights  by  the detaining officers  of the State, due to frailities of human nature and  errors of  judgment, are  denied by the Attorney General. ALL  that is  denied  is  the  correctness  of  the assertion that  they are  enforceable, during  the period of Emergency, through Courts, if they fan within the purview of rights whose enforcement is suspended. 315      The result  of the  few very  general observations made above by me,  before examining, in greater depth, any of the very large  number of  connected questions  and side  issues raised I  doubt whether  it is  necessary or of much use, in view  of   my  opinion   on   the   preliminary   issue   of enforceability, to  consider an  of then  even  if  it  were possible for me to do so-may be summarised as follows .      Dicey’s Rule of Law, with special meanings given to it, was meant  to prove  the existence  and peculiarities of the uncodified English  Constitutional Law.  According to  Dicey himself, these  features either  did not  exist elsewhere or were  the   very  objectives   of  provisions   of   written Costitutions of other countries. On Dicey’s very exposition, no ordinary  Judge-made law  or common  law could survive in opposition to statutory law in England, or, in conflict with a written  Constitution where  there was one. Enforceability of rights,  whether they are constitutional or common law or statutory,   in    constitutionally   prescribed   ways   by constitutionally  appointed  judicial  organs,  is  governed solely  by   he  term   of  the   written  instrument  in  a constitution such as curs. The scope for judicial law making on the  subject of  enforcement of  the  right  to  personal freedom was  deliberately  restricted  by  our  Constitution makers. In  any case,  it is difficult to see any such scope when "enforcement"  itself is suspended. All we can do is to determine the  effect of  this suspension.  We have  now  to consider in  greater detail:  What is  it the enforcement of which is  suspended and  what, if  anything  remains  to  be enforced ?      In this  country, the  procedure for the deprivation as wen as  enforcement. Of  a  right  to  personal  freedom  is governed partly by the Constitution and partly by ordinarily statutes. Both fan 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 lo  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  who.. is  suspended is really the procedure for the enforcement of a right through Courts 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 any  opinion, introduced 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 to  assert the right is one based on violation Of  procedure,  the  degree  of  violation  may  affect  the

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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. 316      The question,  however, which  has been most vehemently argued is:  Does Article 21 exhaust every kind of protection given to  rights to  personal freedom ? Another way in which this question was put is Article 21 of the Constitution "the sole repository"  of the  substantive as  wen as  procedural rights embraced  by the  expression "personal liberty" ? one of the contentions before us was that Article 21 does not go beyond the  procedural protection  to  persons  who  may  be deprived of personal liberty.      Mr. Jethmalani,  learned Counsel  appearing for  one of the detenues,  contended that  personal  freedom  was  a  by product of  the removal  of constraints or hindrances to the positive freedom of action of the individual. The contention seemed to  be that  procedure for  depreciation  of personal liberty  being   one  of   the  ways  of  imposing  positive constraints, the removal of a negative procedural protection could not  dispense with  the necessity to establish a right of the  detaining authority under some positive or statutory law to  deprive a person detained of his liberty whether the authority concerned  followed the  right procedure or not in doing so.  The argument  is that  proof of a just and reason able cause,  falling within  the objects of the Act so as to create a liability to be detained, must precede the adoption of any  procedure to  detail  a  person  under  the  Act.  A "satisfaction"  that   one  of  the  grounds  of  detention, prescribed by  Section 3 of the Act, is there, was thus said to  be   a  "condition   precedent"  to   the  exercise   of jurisdiction to detain. This argument obviously proceeded on a restricted  meaning given to the "procedure established by law". It  is very  difficult to  see why  the  satisfaction, required by  Section 3  of the  Act, is  not really  part of "procedure established by law".      There is,  however, an  even more formidable difficulty in the  way of  this argument.  If, as it is undeniable, the procedure  under   Article  226  is  the  direct  procedural protection,  which   is  suspended   by  the  terms  of  the Presidential order,  read with  Article 359, Article 226 win not be  available to  the detenue at an, for the time being, for showing  absence of  the required  "satisfaction", as  a condition precedent  to  a    valid  detention  order  under Section 3  of the  Act. If the "right to move any Court" can be suspended  Article 359  is very  clear on the point there remains no  right, for  the time  being, to  an inquiry into conditions which  may enable  a party  to secure  release in assertion of  rights guarantee  either by  Article 21  or by other articles whose "enforcement" is suspended. Indeed, the clear object  of such  a suspension  seems to  me to be that Courts should not undertake inquiries into the violations of the alleged right.      If  the   fundamental  rights   in  Part   III  of  the Constitution are  not suspended,  as they obviously are not, but only  their enforcement  can be and is suspended what is really affected is the power conferred on Courts by Articles 32 and  226 of  the Constitution. The power of the Courts is the direct  and effective protection of the rights sought to be secured  indirectly  by  Article  21,  and  perhaps  less indirectly, by  some other  articles and laws. Indeed, it is the  basic  protection  because  other  protections  operate through it and depend on it. If this is curtailed 317

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temporarily,   the   other   affected   protections   become automatically inoperative  or ineffective  so far  as Courts are concerned.      It is no answer to say that the Constitutional power of High Courts cannot be affected by a Presidential order under Article 359  which is  as much a part of the constitution as Article 226.  Both articles were there from the commencement of the  Constitution. I  do not see how it can be reasonably urged that  our Constitution-makers  did not  visualise  and intend that  the Presidential  order under Article 359 must, for the  duration of  the Emergency,  necessarily limit  the powers of High Courts under Article 226 albeit indirectly by suspending rights to enforcement of fundamental rights.      It is  also not possible for a detenue to fan back upon the last  part of  Article 226  of  the  Constitution  which enables the  use of  powers given  by this  Article "for any other purpose".  Sq long as that purpose is enforcement of a right which  is covered  by Articles  14 or  19 or  21 or 22 either separately  or conjointly, as the enforcement of each of these  is now  suspended, the  inhibition win  be  there. Moreover, we  have no  case before us in which a detenu asks for an  order for  any purpose  other than the one which can only be served by tho issue of a writ of Habeas Corpus. Each detenu asks for that relief and for no other kind of writ or order. Therefore,  there is  no need  to consider ’any other purpose".      It is  true that  some of  the learned  Counsel for the detenus have  strongly  relied  upon  "any  other  purpose", occurring at  the end  of Article 226, for enabling the High Court to  undertake  an  investigation  suo  motu  into  the question whether  the executive  is performing  its  duties. Other Counsel  have submitted that such an enquiry such motu can be  undertaken by  this Court  or by  a  High  Court  in exercise of  powers to  issue writs  of Habeas  Corpus quite apart from  the enforcement  of the right of a detenu to any writ or  order. As  I  have  indicated  earlier,  I  am  not prepared to  answer purely  hypothetical  questions,  except within certain  limits, that is to say, only so far as it is necessary for the purposes of illustrating my point of view. I do  not think  that the powers of Courts remain unaffected by the  suspension of  rights or  locus standi of detenus. A Court cannot,  in  exercise  of  any  supposed  inherent  or implied or  unspecified power,  purport  to  enforce  or  in substance enforce  a  right  the  enforcement  of  which  is suspended. To permit such circumvention of the suspension is to authorise  doing indirectly what law does not allow to be done directly.  Assuming, for  purposes  of  argument,  that there is  some unspecified  residue of  judicial’  power  in Courts of  Record in  this country, without deciding what it could be,  as that  question does  not really arise in cases before us,  there must be undeniable facts and circumstances of some very grave, extraordinary, and exceptional character to justify  the use  of such  powers, if  they exist  at and either by  this Court  or by the High Courts. So long as the powers  of   Government  are   exercised   by   the   chosen representatives of the people, their exercise is presumed to be of  the people  and for the people. It has to be borne in mind that the validity of the declaration of Emergency under Article 352  has neither been nor can it be constitutionally challenged in view of Article 352(5) 318 of the  Constitution.  And,  the  validity  of  Presidential orders of 1975 under Article 359 has not been questioned.      So far,  I  have  only  indicated  the  nature  of  the problems before  us and‘ my general approach to them. Before

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specifically answering  questions, stated  at the  outset, I win deal,  as briefly  as possible,  Under the following Six main heads,  with such  of the  very large  number of points raised and authorities cited before us as appear to me to be really necessary  for answering the questions caning for our decision:           (A)  "Rights  conferred   by  Part   III"  of  our                Constitution  from   the  point  of  view  of                Personal Freedom.           (B)  Power to  issue writs  of Habeaus  Corpus and                other powers of High Courts under article 226                of the constitution.           (C)  The objects  of the  Maintenance of  Internal                Security Act  (’the Act’)  and the amendments                of it.           (D)  The  purpose   and   meaning   of   Emergency                provisions, particularly  Article 359  of our                Constitution.           (E)  The  effect   of  the   Presidential  orders,                particularly the order of 27th June, 1975, on                the rights of Detenus.           (F)  The  Rule   of   Law,   as   found   in   our                Constitution, and how it  operates during the                Emergency. (A)  "Rights conferred by Part In" from the point of view of      personal freedom.      It is somewhat difficult to reconcile the language of a purported conferment  of rights  upon themselves by citizens of India  with their  political sovereignty. The language of the preamble to the Constitution recites that it is they who were establishing  the legally Sovereign Democratic Republic with the  objects given  there. Of  course, some  rights are "conferred" even  on non-citizens,  but that does not remove the semantic  difficulty which  gave rise  to some  argument before us. It seems to me that if, as this Court has already explained earlier  (e.g. by  me  in  Shrimati  Indira  Nehru Gandhi’s  case   (supra),  the   Constitution,  given   unto themselves by  the people, is legally supreme, it win not be difficult  to   assign  its   proper  meaning  to  the  term "conferred". I  do not  find the  theory  unacceptable  that There was  a notional  surrender by  the people  of India of control  over  their  several  or  individual  rights  to  a sovereign  Republic   by  means   of   a   legally   supreme Constitution to  which we owe allegiance. It only means that we recognise that the Constitution is supreme and can confer rights and  powers. We  have to  look to  it alone  and  not outside it  for finding  out the  manner in  which  and  the limits subject  to which  individual citizens  can  exercise their separate  freedoms. There  has to be necessarily, as a result of  such a process of Constitution making, a notional surrender  of  individual  freedom  so  as  to  convert  the possibility  of   "licence"  to   an,  which   ends  in  the exploitation and  oppression of  the many  weak by  the  few strong, into  the actuality of a freedom for an regulated by law or under the law applicable to an. This seems to 319 me to  be a  satisfactory explanation  of  the  language  of conferment used with reference to rights.      Apart from the explanation given above, of the language or conferment,  the meaning  of placing  some rights in Part III, whatever  be tile  language in  which this was done, is surely to  select  certain  rights  as  most  essential  for ensuring the  fulness of lives of citizens. The whole object of guaranteed  fundamental rights  is to  make  those  basic aspects of  human freedom,  embodied in  fundamental rights,

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more secure than others not so selected. In thus recognising and declaring certain basic aspects of rights as fundamental by the  Constitution of  the country,  the  purpose  was  to protect them  against undue  encroachments upon  them by the legislative, or  executive,  and,  sometimes  even  judicial (e.g. Article  20) organs  of the  State. The  encroachments must remain  within permissible  limits and  must take place only in  prescribed modes.  The intention  could never be to preserve something  concurrently in the field of Natural Law or Common Law. It was to exclude an other control or to make the Constitution  the sole  repository of  ultimate  control over those  aspects of  human freedom  which were guaranteed there.      I have already referred to Dicey’s attempt to show that one of  the meanings  of the Rule of Law in England was that the law  made by  the ordinary Courts served purposes sought to be  achieved in  other  countries  by  means  of  written Constitutions. This  meant  that  one  of  the  two  systems governs the  whole field  of fundamental rights but not both This very  idea is  thus put  by Keir  & Lawson in "Cases in Constitutional Law (5th Edn. p. 11) :"           "The judges  seem to  have in their minds an ideal      constitution, comprising  those  fundamental  rules  of      common law which seem essential to the liberties of the      subject and the proper government of the country. These      rules cannot  be repealed but by direct and unequivocal      enactment. In the absence of express words or necessary      intendment, statutes  win be  applied subject  to them.      They do  not override  the statute, but are treated, as      it were,  as implied  terms of the statute. Here may be      found many of those fundamental rights of man which are      directly and  absolutely safeguarded  in  the  American      Constitution  or  the  Declaration  des  droits  de  1’      homme".      In the  passage quoted above, Rules of Natural Justice, which are  impliedly read  into statutes  from the nature of functions imposed  upon statutory authorities or bodies, are placed on  the same  footing as  "fundamental rights  of men which are  directly and  absolutely safeguarded"  by written Constitutions. There  is,  however,  a  distinction  between these two  types of  basic  rights.  The  implied  rules  of natural justice  do not,  as has been repeatedly pointed out by us,  over-ride the  express terms  of a statute. They are only implied because the functions which the statute imposes are presumed to be meant to the exercised in accordance with these rules.  Hence, they  are treated  as though  they were parts of enacted law. This Court has repeatedly 320 applied this  principle (see:  e.g. State  of Orissa  v. Dr. (Miss) Binapani Dei & Ors)(1)      The principles  of natural justice which are so implied must always hang, if one may so put it, on pegs of statutory provisions or  necessarily follows  from them. They can also be said  sometimes to  be implied  as necessary parts of the protection  of   equality  and   equal  protection  of  laws conferred by Article 14 of the Constitution where one of the pillars of Dicey’s principles of the Rule of Law is found em bodied.  Sometimes,  they  may  be  implied  and  read  into legislation dealing  with rights  protected by Article 19 of the Constitution.  They  could,  at  times,  be  so  implied because restrictions  on rights  conferred by  Article 19 of the Constitution have to be reasonable. Statutory provisions creating certain  types of  functions  may  become  unreason able, and,  therefore, void  unless rules of natural justice were impliedly annexed to them. And, the wen known method of

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construction is:  ut res magis valeat guam pereat"-to prefer the construction  which upholds  rather than  the one  which invalidates. Thus,  rules of natural justice, even when they are read  into statutory  provisions,  have  no  independent existence.  They   are  annexed   to  statutory   duties  or fundamental  rights  so  long  as  they  are  not  expressly excluded. Their  express exclusion  by statute may, when the enforcement of  fundamental rights.  It  is  not  suspended, affect the validity of a statute. But, that is so because of the requirements  of Articles  14 and 19 of the Constitution and  not   because  they   are  outside   the   Constitution altogether.      It is  also very difficult for me to understand what is meant by  such "Common  Law" rights  as could  co-exist  and compete with  constitutional provisions  or take their place when the  constitutional provisions  become unenforceable or temporarily inoperative.  The whole  concept of such alleged Common Law  is based  on  an  utter  misconception  of  what "Common Law"  means. The  origin of Common Law in England is to be  found in  the work  done by  the King’s  Judges, who, through their judicial pronouncements, gave to the people of that country  a law common to the whole country in the place of the  peculiar or  conflicting local customs. Let me quote here from  a recent  book  by  Prof.  George  W.  Keeton  on "English Law-The Judicial Contribution" (at p. 68-69), about what Judges appointed by Henry the II of Anjou did:           "It is in his reign that something recognisable as      a Common  Law begins  to emerge.  It is  an amalgam  of      Anglo  Saxon   and  Danish   customs  and  Norman  laws      governing military  tenures, both of which are about to      be transformed  by several  mighty  agencies-the  ever-      expanding body  of original  writs, of  which Glanville      wrote; the  assizes which Henry introduced and finally,      by  the   activities  of   his  judges,  whether  3  at      Westminster or  on  Circuit.  It  is  significant  that      although for some centuries to come, English law was to      remain remarkably  rich in  local customs, we no longer      hear, after  t Henry’s  reign, of  the laws  of Mercia,      Wessex and Northumbria, but of a Common Law of England-      that is to say,      (1)[1967] 2 S. C. R. 625. 321      the law  of the king’s courts, about which treatises of      the calibre  of Bracton  and  Fleta  would  be  written      almost exactly  a century  later, and as the concluding      words of  Pollock and  Maitland’s great work remind us,      they and  their judicial  colleagues were building, not      for England  alone but ’for king less common-wealths on      the other  shore of the Atlantic ocean and now, one can      perhaps add, for many other commonwealths, too. This we      owe ultimately,  not to a Norman Conqueror, nor even to      a distinguished  line of  Saxon kings,  but to  a  bow-      legged and unprepossessing prince of Anjou, of restless      energy  and  great  constancy  of  purpose  who  built,      perhaps, a good deal better than even he knew".      Such were  the origins of the Common Law in England. It is true  that Common  Law did  try to dig its tentacles into Constitutional Law  as well.  Chief Justice  Coke  not  only denied to King James the 1st the power to administer justice directly and  personally, but he went so far as to claim for the King’s Courts the power to proclaim an Act of Parliament invalid, in  Dr. Bonham’s  case, if  it sought  to violate a principle of  natural law.  Such claims,  however, were soon abandoned by Common Law Courts.      It is  interesting to recall that, after his dismissal,

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by King  James the  1st, in  1616, Sir  Edward Coke  entered politics and  became a  Member of  the House  of Commons  in Liskeard. He led a group which resisted Royal claims. He was the principal  advocate of  the  Petition  of  Rights  which Parliament compelled  a reluctant  King of England to accept in 1628.  Courts  of  justice,  unable  to  withstand  Royal onslaughts on  their authority, joined hands with Parliament and laid  down some  of the rules which, according to Dicey, gave the  Rule of  Law  to  England.  Thus,  the  judge-made fundamental rights,  which Parliament would not disturb, out of innate  respect  for  them,  existed,  legally  speaking, because Parliament,  representing the  people, wanted  them. They could  not compete with or obstruct the legal authority of Parliament. Coke’s doctrine, however, found expression in a constitution  which enabled judges to test the validity of even legislation  P’ with  reference to  fundamental rights. This is  also one of the primary functions of Chapter III of our own Constitution. Another function of provisions of this chapter is  to test  the validity  of the  State’s executive action.      So far  as Article 21 of the Constitution is concerned, it is  abundantly clear  that  it  protects  the  lives  and liberties of  citizens primarily  from  legally  unwarranted executive  action.   It   secures   rights   to   ’procedure established by  law’. If that procedure is to be established by statute  law, as  it is  meant  to  be,  this  particular protection could  not, on  the face  of it,  be intended  to operate as  a restriction upon legislative power to lay down procedure although  other articles  affecting legislation on personal freedom  might. Article  21 was  only meant, on the face of  it, to  keep the  exercise of  executive powers  in ordering deprevations  of life or liberty, within the bounds of power prescribed by procedure established by legislation.      23-833 Sup C I/76 322 The meaning of the expression "procedure established by law" came in  for discussion  at  considerable  length,  by  this Court, in  A. K. Gopalan’s case (supra). The majority of the learned James  clearly held  there  that  it  furnishes  the guarantee of  "Lex", which is equated with statute law only, and not  of "Jus"  or a  judicial concept of what procedural law ought  really to  be. The  whole  idea,  is  using  this expression,   taken    deliberately   from    the   Japanese Constitution of  the advice,  amongst others, of Mr. Justice Felix Frankfurter  of the  American  Supreme  Court  was  to exclude  judicial  interference  with  executive  action  in dealing with  lives and  liberties of  citizens  and  others living in  our country  on any  ground other than that it is contrary to  procedure actually  prescribed by  law,  which, according to the majority view in Gopalan’s case, meant only statute law.  The majority  view was  based on  the  reason, amongst others,  that, according  to well established canons of  statutory  construction,  the  express  terms  of  "Lex" (assuming, of  course, that  The "Lex"  is otherwise valid), prescribing  procedure,   will  exclude  "Jus"  or  judicial notions or "due process" or what the procedure ought to be.      Appeals to  concepts of  "Jus" or a just procedure were made in Gopalan’s case (supra), as implied by Article 21, in an attempted  application of  "Jus" for testing the validity of  statutory  provisions.  Although  no  such  question  of validity of the procedure established by the Act in ordering actual deprivations  of personal  liberty has  arisen before us, yet,  the argument before us is that we should allow use of notions  of "Jus"  and the doctrine of ultra vires by the various  High   Courts  in   judging  the   correctness   of

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applications  of  the  established  procedure  by  executive authorities to  each case  at a  time when  the Presidential order of  27th June  1975 precludes the use of Article 21 by Courts for enforcing a right to personal liberty. Therefore, the question which arises here is whether "Jus" held by this Court. in Gopalan’s case, to have been deliberately excluded from the  purview of  procedure established  by law", can be introduced by  Courts, through a back door, as though it was an independent  right guaranteed  by Chapter  III or  by any other Part  of the Constitution. I am quite unable to accede to the suggestion that this could be done.      We have been referred to the following passage in R. C. Cooper v,  Union of  India(1) to substantiate the submission that the  decision of  this Court in Gopalan’s case (supra), on the question mentioned above, no longer holds the field:           "We  have   found  it  necessary  to  examine  the      rationale of  the two  lines of authority and determine      whether  there   is  anything  the  Constitution  which      justifies this  apparently inconsistent  development of      the law.  In  our  judgment,  the  assumption  in  A.K.      Gopalan’s   case   that   certain   articles   in   the      Constitution exclusively deal with specific matters and      in determining  where  there  is  infringement  of  the      individual’s guaranteed rights, the object and the form      of the  State action  alone  need  be  considered,  and      effect  of  the  laws  on  fundamental  rights  of  the      individuals  in  general  will  be  ignored  cannot  be      accepted as correct. We hold that the      (1) [1970] 3 S. C. R. 530 @ 578, 323      validity  ’of  law’  which  authorises  deprivation  of      property  and   ’a  law’  which  authorises  compulsory      acquisition of  property for  a public  purpose must be      adjudged by  the  application  of  the  same  tests.  A      citizen may  claim in  an appropriate case that the law      authorising compulsory  acquisition of property imposes      fetters upon  his right  to hold property which are not      reasonable restrictions in the interests of the general      public".      It seems  to me  that Gopalan’s case (supra) was merely cited, in  Cooper’s case (supra), for illustrating a line of reasoning which  was held to be incorrect in determining the validity of  "law" for  the acquisition  of property  solely with reference to the provisions of Article 31. The question under  consideration  in  that  case  was  whether  Articles 19(1)(f) and  31(2) are  mutually exclusive. Even if, on the strength of  what was held in Cooper’s case (supra), we hold that the  effects of deprivation upon rights outside Article 21 have  also to be considered in deciding upon the validity of "Lex",  and that  the line of reasoning in Gopalan’s case (supra), that  the validity  of a law relating to preventive detention must  be  judged  solely  with  reference  to  the provisions of  Article 21 of the Constitution, is incorrect? in view  of the opinion of the majority of learned Judges of this Court hl Cooper’s case (supra), it seem to me that this is hardly  relevant in  considering whether any claims based on natural  law or  common law  can be enforced. There is no challenge before us based on Article 19, to any provision of the Act. Moreover, now that the enforcement of Article 19 is also suspended,  the question  whether a  law  dealing  with preventive detention  may directly  or  indirectly  infringe other rights  contained in Article 19 of the Constitution is not relevant at all here for this additional reason.      Mr. Shanti  Bhushan, appearing  for some of the detenu, seems to  have  seriously  understood  the  meaning  of  the

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majority as  well as  minority views of Judges of this Court in His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala.(1)  when he  submitted that, as the majority view there was not that natural rights do not exist, these rights could be  enforced in  place  of  the  suspended  guaranteed fundamental rights.  One learned Judge after another in that case emphatically rejected the submission that any theory of natural   rights    could   impliedly    limit   powers   of Constitutional amendment  contained in  Article 368  of  the Constitution. Tn  doing so, none or us held that any natural rights could impliedly become legally enforceable rights. G      Dwivedi, J.,  in Kesavananda Bharti’s case (supra) said about what  could be  characterised as  a far  more  "unruly horse" than public policy (at p. 918):           "Natural law has been a sort of religion with many      political and constitutional thinkers. But it has never      believed in  a single  Godhead. It  has  a  perpetually      growing pantheon.  Look at  the pantheon,  and you will      observe there: ’State      (1) [1973] Suppl. S. C. R. 1 @ 918. 324      of  Nature’,   ’Nature  of   Man’,   ’Reason,’   ’Cod’,      ’Equality’,  ’Liberty’,  ’Property’,  ’Laissez  Faire’,      ’Sovereignty’,   ’Democracy’,    ’Civilised   Decency’,      ’Fundamental Conceptions of Justice’ and even ’War’.           The religion  of Natural  Law has  its illustrious      Priestly Heads  such as Chrysippus, Cicero, Seneca, St.      Thomas  Acquinas,   Grotius,  Hobbes,   Locke,   Paine,      Hamilton, Jefferson and Trietschke. The pantheon is not      a heaven  of peace.  Its gods  are locked  in  constant      internecine c nflict.           Natural Law  has  been  a  highly  subjective  and      fighting faith.  Its bewildering  variety  of  mutually      warring   gods   has   provoked   Kelson   to   remark:      "outstanding  representatives   of  the   natural   law      doctrine have  proclaimed in  the name  of  Justice  or      Natural Law  principles which  not only  contradict one      another, but  are in direct opposition to many positive      legal orders.  There is  no positive law that is not in      conflict with one or the other of these principles; and      it is  not possible  to ascertain  which of  them has a      better claim to be recognised than any other. All these      principles  represent   the  highly   subjective  value      judgments of  their various  authors  about  what  they      consider to be just or natural."      If the  concepts of  natural law are too conflicting to make them  a secure  foundation  for  any  alleged  "right", sought to  be derived  from it,  until it  is  accepted  and recognised by  a positive laws notions of what Common Law is and what  it means,  if anything,  in this  country, are not less hazy and unsettled.      Mr. Setalvad,  in  his  Harnlyn  Memorial  Lectures  on "Common Law  in India", treated the whole body of general or common statute law and Constitutional Law of this country as though they  represented a codification of the Common Law of England. If  this view  is correct,  Common Law could not be found outside  the  written  constitution  and  statute  law although English Common Law could perhaps be used to explain and interpret our statutory provisions where it was possible to do so due to some uncertainty.      Sometimes, Judges  have spoken  of  the  principles  of "Justice, equity,  and good conscience" (See: Satish Chandra Chakramurthi v.  Ram Dayal  De(1) Waghela Raj Sanji v. Sheik Mashuddirl &  ors. (2);  Baboo  S/o  Thakur  Dhodi  v.  Mst. Subanshi W/o  Mangal(8), as  sources of "Common Law" in this

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country. One  with some  knowledge of  development of law in England will distinguish the two broad streams of law there: one supposed  to be  derived from the customs of the people, but, actually  based on  judicial concepts of what custom is or should properly be; and another flowing from the Court of the Chancellor,  the "Keeper  of the King’s Conscience", who used to be approached      (1) I. L. R. 48 Cal. 388 @ 407-410.      (2) 14 Indian Appeals p. 89 @ 96.      (3) A. I. R. 1942 Nag. 99. 325 when plain  demands of justice failed to be met or caught in the meshes of Common Law, or, were actually defeated by some statute law which was being misused. The two streams, one of Common Law  and an  other of Equity, were "mixed" or "fused" by statute  as a result of the Judicature Acts in England at the end  of the  last century  in the sense that they became parts of  one body  of law  administered by the same Courts, although they  are still  classified separately due to their separate origins.  In Stroud’s  Judicial Dictionary, we find (See: Vol.  I, 4th  Edn. p. 517): "The common law of England is that  body of  law which has been judicially evolved from the general custom of the realm".      Here, all  that I  wish to  indicate  is  that  neither rights supposed  to be  recognised by  some natural  law nor those assumed  to exist  in some  part of  Common Law  could serve as  substitutes for those conferred by Part III of the Constitution. They  could not be, on any principle of law or justice or  reason, virtually  added to part III as complete replacements for  rights whose enforcement is suspended, and then  be   enforced,   through   constitutionally   provided machinery, as  the unseen  appendages of the Constitution or as a separate group of rights outside the Constitution meant for the Emergency which suspends but does not resuscitate in a new form certain rights.      A submission  of Dr. Ghatate, appearing for Mr. Advani, was that we should keep in mind the Universal Declaration of Human Rights  in interpreting the Constitution. He relied on Article Sl  of the  Constitution, the relevance of which for the cases  before us  is not  at all  evident to me. He also relied on  the principle  recognised by  British Courts that International Law is part of the law of the land. Similarly, it was urged, it is part of our law too by reason of Article 372 of  the Constitution.  He seemed to imply that we should read the  universal declaration  of human  rights  into  our Constitution as  India was  one of  the signatories  to  it. These submissions  appear to  me to  amount to  nothing more than appeals  to weave  certain ethical rules and principles into the  fabric of  our Constitution which is the paramount law of  this country and provides the final test of validity and enforceability  of rules  and rights  through Courts. To advance such  arguments is  to forget  that our Constitution itself embodies  those rules and rights. It also governs the conditions of  their operation and suspension. Nothing which conflicts with  the provisions  of the Constitution could be enforced here under any disguise.      Emergency provisions  in our  Constitution  are,  after all, a recognition and extension of the individual’s natural law right  of self-defence,  which  has  its  expression  in positive laws,  to the State, the legal organisation through which society  or  the  people  in  its  collective  aspect, functions for  the protection of the common interests of all Such  provisions   or  their   equivalents  exist   in   the Constitutions of even the most advanced democratic countries of  the   world.  No  lawyer  can  seriously,  question  the

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correctness, in Public International Law, of the proposi- 326 tion that  the operation  and effects of such provisions are matter which  are entirely  the domestic  concern of legally sovereign Slates and ca brook no outside interference.      Subba Rao,  C.J., speaking  for five  learned Judges of this Court,  in 1. C. Gorakhnath & ors. v. State of Punjab & Anr(1) said: (at p. 789 ):           "Now, what  are the  fundamental rights ? They are      em bodied  in Part III of the Constitution and they may      be classified thus: (1) right to equality (ii) right to      freedom, (iii)  right against  exploitation, (iv) right      to freedom  of religion,  (v) cultural  and educational      rights, (vi)  right to  property, and  (vii)  right  to      constitutional remedies.  They are  the rights  of  the      people  preserved  by  our  Constitution.  "Fundamental      rights’  are   the  modern  name  for  what  have  been      traditionally known  as "natural rights". As one author      puts: "they  are moral  rights which  every human being      everywhere at all times ought to have simply because of      the fact  that in  contradistinction with other beings,      he is  rational and  moral". They  are  the  primordial      rights  necessary   for  the   development   of   human      personality. They  are the rights which enable a man to      chalk out his own life in the manner he likes best. our      Constitution, in addition to the well-known fundamental      rights, also  included the  rights of  the  minorities,      untouchables and  other backward  communities, in  such      rights".      I do  not know  of any  statement by  this Court of the relation   between    natural   rights    and    fundamental constitutional rights  which conflicts  with what  is stated above.      Hidayatullah, J.,  in Golaknath’s case (supra) observed (at p 877 ):           "What I  have said  does not mean that Fundamental      Rights are  not subject  to change  or modification. In      the most  inalienable of such rights a distinction must      be made between possession of a right and its exercise.      The first is fixed and the latter controlled by justice      and necessity. Take for example Art. 21:           "No person  shall  be  deprived  of  his  life  or      personal  liberty   except   according   to   procedure      established by  law’. of  all the  rights, the right to      one’s life  is the  most valuable.  This article of the      Constitution, therefore,  makes the  right fundamental.      But the  inalienable right is curtailed by a murderer’s      conduct as  viewed under  laws. he deprivation, when it      takes place,  is not  of the  right which was immutable      but of the continued exercise of the right".      The contents  of Article  21 were  considered  at  some length and  given a  wide  connotation  by  this  Court  ill Gopalan’s case  (supra). Patanjali Sastri, J., held at pages 195-196:      (1) [1967] 2 S. C. R. 762 @ 789. 327           "It was further submitted that article 19 declared      the  substantive   rights  of  personal  liberty  while      article 21  provided the  procedural safeguard  against      their deprivation. This view of the correlation between      the two  articles has  found favour  with some  of  the      Judges in  the  High  Courts  which  have  occasion  to      consider the  constitutional validity  of the  impugned      Act. It  is, however,  to be  observed that  article 19      confers  the  rights  therein  specified  only  on  the

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    citizens  of   India,  While  article  21  extends  the      protection of  life  and  .  personal  liberty  to  all      persons citizens  and non-citizens alike. Thus, the two      articles do  not operate  in a  conterminous field, and      this  is  one  reason  for  rejecting  the  correlation      suggested. Again,  if article 21 is to be understood as      providing only  procedural  safeguards,  where  is  the      substantive right to personnel liberty, of non-citizens      to be  found in the Constitution ? Are they denied such      right altogether  ? If  they are  to have  no right  of      personal liberty,  why is  the procedural  safeguard in      article 21  extended to  them ?  And where is that most      fundamental right  of all,  the right to life, provided      for in  the Constitution? The truth is that article 21,      like its American prototype in the Fifth and Fourteenth      Amendments of  the Constitution  of the  United States,      presents an  example of  The fusion  of procedural  and      substantive rights  in the same provision. The right to      live, though  the most  fundamental of all, is also one      of the  most difficult  to define  and  its  protection      generally takes  the form  of  a  declaration  that  no      person shall  be deprived  of it save by due process of      law or by authority of law. ’Process’ or ’procedure’ in      this context  connotes both  the act and the manner of‘      proceeding to  take  away  a  man’s  life  or  personal      liberty.   And  the  first  and  essential  step  in  a      procedure established  by law for such deprivation must      be a  law made  by a  competent legislature authorising      such deprivation". Mahajan, J., also observed at pages 229-230:           "Article 21,  in my opinion, lays down substantive      law as  giving protection  to life and liberty inasmuch      as  it   says  that  they  cannot  be  deprived  except      according to the procedure established by law; in other      words, it means that before a person can be deprived of      his life  or liberty  as a  condition  precedent  there      should exist  some substantive law conferring authority      for doing  so and  the law should further provide for a      mode of  procedure for  such deprivation.  This article      gives  complete   immunity  against   the  exercise  of      despotic power  by  the  executive.  It  further  gives      immunity against  invalid  laws  which  contravene  the      Constitution. It  gives also  further guarantee that in      its  true   concept  there   should  be  some  form  of      proceeding before  a person  can be condemned either in      respect of  his life  or his  liberty. It negatives the      idea of  fantastic arbitrary  and oppressive  forms  of      proceedings.  The   principles   therefore   underlying      article 21  have been  kept in view in drafting article      22". 328 Das, J., said at page 295:           "If personal  liberty as such is guaranteed by any      of the  sub-clauses of  article 19(1)  then why  has it      also  been   protected  by  article  21  ?  The  answer      suggested by learned counsel for the petitioner is that      personal liberty as a substantive right is protected by      article 19(1)  and article  21 gives only an additional      protection by  prescribing the procedure . according to      which that  right may  be taken  away. I  am unable  to      accept this  contention. If this argument were correct,      then it  would follow  that our  Constitution does  not      guarantee to  any person,  citizen or  non-citizen, the      freedom of  his life as a substantive right at all, for      the substantive  right to life does not fall within any

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    of the sub-clauses of clause (1) of article 19". He also said at p. 306-307:           "Article  21,   as  the   marginal  note   states,      guarantees to  every person  ’protection  of  life  and      personal  liberty’.  As  I  read  it,  it  defines  the      substantive fundamental  right to  which protection  is      given and  does not purport to prescribe any particular      procedure at  all. That  a person shall not be deprived      of his  life or  personal liberty  except according  to      procedure  established   by  law   is  the  substantive      fundamental right  to which  protection is given by the      Constitution. The  avowed object  of the  article, as I      apprehend it,  is to  define the  ambit of the right to      life and personal liberty which is to be protected as a      fundamental right.  The  right  to  life  and  personal      Liberty protected  by article  21 is  not  an  absolute      right but is a qualified right-a right circumscribed by      the possibility  or risk  of being  lost  according  to      procedure established by      It will thus be seen that not only all steps leading up to  the   deprivation  of  personal  liberty  but  also  the substantive right  to personal  Freedom has  been  held,  by implication,  to   be  covered   by  Article   21   of   the Constitution.      In Kharak  Singh v.  the State of U.P. & Ors(1) he wide import of  personal liberty,  guaranteed by  Article 21, was considered. By  a majority  of 4 against 2 learned Judges of this Court, it was held that the term "personal liberty", as used in  Article 21,  is a  compendious one and includes all varieties of  rights to  exercise of personal freedom, other than those  dealt with  separately by Article 19 which could fall under a broad concept of freedom of person. It was held to include freedom from surveillance, from physical torture, and from  all kinds  of harassment  of the  person which may interfere with his liberty.      Thus, even  if Article 21 is not the sole repository of all personal  freedom, it  will be  clear, from a reading of Gopalan’s case (supra) and      (1) [1964] 1 S. C. R. 332. 329 Kharak Singh’s  case (Supra), that all aspects of freedom of person are  meant to be covered by Articles 19 and 21 and 22 of the  Constitution. If  the enforcement of these rights by Courts is  suspended during  the Emergency  an inquiry  by a Court into  the question  whether any of them is violated by an illegal deprivation of it by executive authorities of the State seems futile.      For the reasons indicated above I hold as follows:-      Firstly, fundamental rights are basic aspects of rights selected from  what may  previously  have  been  natural  or common  law  rights.  These  basic  aspects  of  rights  are elevated to  a new  level of importance by the Constitution. Any other co-extensive rights, outside the Constitution, are necessarily excluded  by their recognition as or merger with fundamental rights.      Secondly, the  object of making certain general aspects of rights  fundamental is  to guarantee them against illegal invasions of  these rights  by  executive,  legislative,  or judicial organs  of the  State. This  necessarily means that these  safeguards   can  also   be  legally   removed  under appropriate constitutional or statutory provisions. although their  Suspension   does  not,  or  itself,  take  away  the illegalities or their legal consequences.      Thirdly, Article  21 of  the  Constitution  has  to  be interpreted comprehensively enough to include, together with

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Article 19,  practically all aspects of personal freedom. It embraces both  procedural and substantive rights. Article 22 merely makes  it clear that deprivations of liberty by means of laws regulating preventive detention would be included in "procedure established  by  law"  and  indicates  what  that procedure should  be. In  that sense, it could be viewed as, substantially, an  elaboration of  what is  found in Article 21, although  it also  goes beyond it inasmuch as it imposes limits on ordinary legislative power.      Fourthly,  taken   by  itself,   Article  21   of   the Constitution  is  primarily  a  protection  against  illegal deprivations by  the executive  action of the State’s agents or officials,  although, read  with other Articles, it could operate  also   as  a   protection   against   unjustifiable legislative action  purporting to  authorise deprivations of personal freedom.      Fifthlty, the  most important  object or making certain basic rights  fundamental by  the ’Constitution  is to  make them enforceable  against the State and its agencies through the Courts.      Sixthly, if the protection of enforceability is validly suspended for  the duration  of an Emergency, declared under constitutional  provisions  the  Courts  will  have  nothing before them to enforce so as to be able to afford any relief to a person who comes with a grievance before them.      (B) Power  to issue  writs of  Habeas Corpus  and other powers of High Courts under Article 226 of the Constitution      Reliance has  been placed  on behalf  of the detenus on the following  statement of the law found in Halsbury’s Laws of England  (Vol. 11,  p. 27,  paragraph 15),  where dealing with the  jurisdiction to  issue such writs in England it is said: 330           "The right  to the writ is a right which exists at      common law  independently of  any statute,  though  the      right has  been confirmed  and regulated by statute. At      common law  the jurisdiction  to  award  the  writ  was      exercised by  the Court  of Queen’s Bench, chancery and      Common Pleas, and, in a case of privilege, by the Court      of Exchequer". It is,  therefore, submitted that the High Courts as well as this Court  which have  the same jurisdiction to issue writs of Habeas  Corpus as English Courts have to issue such writs at common law      The argument  seems  to  me  to  be  based  on  several misconceptions      Firstly, there  are no Courts of the King or Queen here to  issue   writs  of   Habeas  Corpus   by  reason  of  any "prerogative" of the British Monarch. The nature of the writ of Habeas  Corpus is  given in the same volume of Halsbury’s Laws of  England, dealing with Crown proceedings at page 24, as follows:           "40. The  prerogative writ  of habeas  corpus. The      writ  of  habeas  corpus  and  subjiciendum,  which  is      commonly known  as the  writ of  habeas  corpus,  is  a      prerogative process  for securing  the liberty  of" the      subject by  affording an  effective means  of immediate      release  from   unlawful  or  unjustifiable  detention,      whether in  prison or  in  private  custody.  It  is  a      prerogative writ  by which  the Queen  has a  right  to      inquire into  the causes  for which any of her subjects      are deprived of their liberty. By it the High Court and      the judges of that Court, at the in stance of a subject      aggrieved, command  the production of that subject, and      inquire into the cause of his imprisonment. If there is

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    no legal  justification for the detention, the party is      ordered to  be released.  Release on  habeas corpus  is      not, however, an acquittal? nor may the writ be used as      a means of appeal".      It will  be seen  that the  Common Law power of issuing the writ  of Habeas  Corpus is  possessed  by  only  certain courts which  could issue "prerogative" writs. It is only to indicate the  origin and nature of the writ that the writ of habeas corpus  is known  here as  a "prerogative"  writ. The power to  issue it  is of the same nature as a "prerogative" power inasmuch  as the power so long as it is not suspended, may carry  with it  an undefined  residue  of  discretionary power. Strictly  speaking. it  is a constitutional writ. The power to  issue it  is conferred upon Courts in this country exclusively by  our Constitution.  All  the  powers  of  our Courts flow  from the  Constitution which  is the  source of their jurisdiction.  If any  provision of  the  Constitution authorises the  suspension of  the right to obtain relief in any type  of cases, the power of Courts is thereby curtailed even though  a general  jurisdiction to afford the relief in other cases  may be  there. If  they cannot  issue writs  of Habeas Cor  pus to  enforce  a  light  to  personal  freedom against executive  authorities  during  the  Emergency,  the original nature  of this  writ issuing power comparable to a "prerogative" power, cannot help the detenu. 331      Secondly, as  I have  already indicated, whatever could be formerly  even said  to  be  governed  by  a  Common  Law prerogative power becomes merged in the Constitution as soon as  the  Constitution  makes  it  over  and  regulates  that subject. This  is a well recognised principle or law. I will only  cite  Attorney-General  v.  De  Keyser’s  Royal  Hotel Limited(1). Where  Lord Dunedin, in answer to a claim of the Crown based on prerogative, said (at p. 526):           None the  less, it  is equally certain that if the      whole ground  of something  which could  be done by the      prerogative is  covered  by  the  statute,  it  is  the      statute  that   rules.  On   this  point  I  think  the      observation  of   the  learned   Master  of  the  Rolls      unanswerable. He  says: "What  use could  there  be  in      imposing  limitations,   if  the  Crown  could  at  its      pleasure disregard  them and fall back on prerogative ?      ".      Thirdly,  if  there  is  no  enforceable  right  either arising under  the Constitution  or otherwise, it is useless to appeal  to any general power of the Court to issue a writ of Habeas  Corpus. The  jurisdiction to  issue an  order  of release, on  a Habeas  Corpus petition,  is only exercisable after due enquiry into the cause of detention. If the effect of the  suspension of the right to move the Court for a writ of Habeas  Corpus is  that no enquiry can take place, beyond finding  out   that  the   cause  is   one  covered  by  the prohibition, mere  possession of some general power will not assist the detenu.      If the right to enforce personal freedom through a writ of habeas  corps suspended,  it  cannot  be  said  that  the enforcement can  be restored  by  resorting  to  "any  other purpose". That other purpose could not embrace defeating the effect of  suspension of the enforcement of a Constitutional guarantee. To  hold that  would be  to make a mockery of the Constitution.      Therefore, I  am unable  to hold  that anything  of the natural of  a writ  of habeas  corpus or any power of a High Court under  Article 226  could come  to the aid of a detenu when the  right to  enforce a  claim  to  personal  freedom,

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sought to be protected by the Constitution, is suspended.      (C)The objects  of the Maintenance of Internal Security      Act (the Act) and the amendments of it.      As this Court has recently held, in Haradhan Saha & Anr v. The  State of  West Bengal & ors.(2) preventive detention is   to   be   differentiated   from   punitive   detention. Nevertheless, it is evident, whether detention is preventive or punitive,  it necessarily  results in  the imposition  of constraints. which,  from the  point of  view justice to the detenu should  not be inflicted or continue without fair and adequate and careful scrutiny into its necessity. This Court pointed  out  that,  Article  22  of  the  Constitution  was designed to  guarantee these  requirements of  fairness  and justice which are satisfied by the provisions of the Act. It said in said Haradhan Saha & Anr. (supra) (at p. 784).      (1) [1920] A. C. 508 @ 526.      (2) [1975] 1 S.C. R. 778 332           "Constitution has  conferred rights  under Article      19 and also adopted preventive detention to prevent the      greater evil  of elements imperilling the security, the      safety of  a State and the welfare of the Nation. It is      not possible  to think  that a  person who  is detained      will  yet   be  free   to  move  or  assemble  or  form      association or union or have the right to reside in any      part  of  India  or  have  the  freedom  of  speech  or      expression      Provision for  preventive detention,  in itself,  is  a departure from  ordinary norms.  It is generally resorted to either in  times of war or of apprehended internal disorders and disturbances  of a  serious nature.  Its  object  is  to prevent a  greater danger to national security and integrity than any  claim which  could be based upon a right, moral or legal, to individual liberty. It has been aptly described as a "jurisdiction of suspicion." See: Khudiram Das v. State of West Bengal.,  (1) State  of Madras  v. V. G. Row; (2) R. v. Halliday (3). It enables executive authorities to proceed on bare suspicion  which has  to give rise to a "satisfaction", as the  condition precedent  to passing  a  valid  detention order, laid down as follows in Section 3 of the Act:           "3 (1) (a) if satisfied with respect to any person      (including a  foreigner) that with a view to preventing      him from acting in any manner prejudicial to-           (1) the  defence of  India, the relations of India      with foreign powers, or the security of India, or           (ii) the  security of the State or the maintenance      of public order, or           (iii) the  maintenance of  supplies  and  services      essential to the community, or           (b) if  satisfied with  respect to  any  foreigner      that with  a view  to regulating his continued presence      in India  or With a view to making arrangements for his      expulsion from India, It is necessary so to do, make an      order directing that such person is detained"      The satisfactions  as held consistently by a whole line of authorities  of this  Court, is  a "subjective"  one.  In other words,  it is  not  possible  to  prescribe  objective standards  for  reaching  that  satisfaction.  Although  the position in  law, as  declared repeatedly by this Court, has been very clear and categorical that the satisfaction has to be the subjective satisfaction of the detaining authorities, yet, the  requirements for sup ply of grounds to the detenus as provided  in Section  8 of  the Act,  in actual practice, opened up  a means  of applying  a kind of objective test by Courts upon  close scrutiny of these grounds. The result has

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been, according to the Attorney General, that the subjective satisfaction of  the detaining authorities has ‘tended to be substituted by the      (1) [1975] 2 S. C. R. p. 832 @ p. 842.      (2) A. I. R. 1952 S. C. 197 @ 200.      (3) [1917] A. C. 260 @ 275. 333 subjective satisfaction  of  Court  on  the  objective  data provided by  the   grounds, as  to the  need to  detain  for purposes of  the Act.  The‘question  thus  arose:  Did  this practice not frustrate the purposes of the Act ?      The position  of the  detenu has  generally evoked  the sympathy of lawyers and law Courts. They cherish a tradition as zealous  protectors of personal liberty. They are engaged in pointing  out, day in and day out, the essentials of fair trial. They  are used  to acting  strictly on  the rules  of evidence  contained   in  the   Indian  Evidence   Act.  The possibility of  indefinite incarceration,  without  anything like a trial, not unnaturally, seems abhorrent to those with such traditions and habits of thought and action.      There is an aspect which perhaps tends to be overlooked in  considering  matters  which  are  generally  placed  for weighment on  the golden  scales of  the sensitive  judicial balance. It  is that we are living in a world of such strain and stress, satirised in a recent fictional depiction of the coming future, if not of a present already enveloping us. in Mr. Alva  Toffler’s "Future  Shock", with such fast changing conditions of life dominated by technological revolutions as well as  recurring economic,  social, and  political crises, with resulting  obliterations of  traditional  values,  that masses of  people suffer from psychological disturbances due to inability  to adjust  themselves  to  these  changes  and crises. An example of such maladjustment is provided by what happened to  a very  great and  gifted nation  within having memory. The great destruction, the inhuman butchery, and the acute suffering  and misery  which many very civilised parts of  the   world  had   to   pass   through,   because   some psychologically disturbed  people led  by Adolf Hitler, were not prevented  in time  from misleading  and misguiding  the German nation, is still fresh in our minds. Indeed the whole world suffered,  and  felt  the  effects  of  the  unchecked aberrant Nazi movement in Germany and the havoc it unleashed when it  acquired a  hold over the minds and feelings of the German people  with all the vast powers of modern science at their disposal.  With such  recent examples  before them, it was not  surprising that  our constitution makers, quite far sightedly, provided not only for preventive detention in our Constitution but  also introduced  Emergency provisions of a drastic  nature   in  it.   These  seem  to  be  inescapable concomitants of  conditions necessary to ensure for the mass of the  people  of  a  backward  country,  a  life  of  that decipline without  which the  country’s security, integrity, independence, and  pace of  progress towards  the objectives set before us by the Constitution will not be safe.      I do  not know whether it was a too liberal application of the  principle that  courts must  lean in  favour of  the liberty of  the citizen, which is, strictly speaking, only a principle  of   interpretation  for   cases  of   doubt   or difficulty, or,  the carelessness with which detentions were ordered by  Subordinate officers  in the  Districts, or  the inefficiency in  drafting of the grounds of detention, which were not  infrequently found  to be vague and defective, the result of  the practice developed by Courts was that detenus did, in quite a number of cases, obtain 334

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from High  Courts, and, perhaps even from this Court, orders of release  on Habeas  Corpus petitions  on grounds on which validity of criminal trials would certainly not be affected.      In Prabhu  Dayal Deorah etc etc. v. District Magistrate Kamrup :&  Ors. (1)  . I ventured, with great respect, in my miniority opinion,  to suggest  that the  objects of the Act may be  frustrated  if  Courts  interfere  even  before  the machinery of  redress under the Act through Advisory Boards, where questions relating to vagueness or irrelevance or even sufficiency of  grounds could  be more  effectively thrashed out than in Courts in proceedings under Article 32 or 226 of the Constitution,  had been  allowed to  complete  its  full course of  operation. In some cases, facts were investigated on exchange  of  affidavits  only  so  as  to  arrive  at  a conclusion that  some of  facts upon  which detention orders were passed  did not  exist at  all. In  other cases, it was held that  even if  a single  non-existent or  vague  ground crept into  The grounds  for detention,  the detention order itself was  vitiated as  it indicated  either the effects of extraneous matter or carelessness or non-application of mind in making the order. Courts could not separate what has been improperly considered  from what  was  properly  taken  into account. Hence  detentions were  held to be vitiated by such detects. In some cases, the fact that some matter ton remote in  time   from  the   detention  order   was   taken   into consideration, in  ordering the  detention, was  held to  be enough to  invalidate the  detention. Thus, grounds supplied always operated  as an  objective test  for determining  the question whether  a nexus could reasonably exist between the grounds given  and  the  detention  order  or  whether  some infirmities  had   crept  in.   The  reasonableness  of  the detention became  the justiciable issue really decided. With great respect,  I doubt whether this could be said to be the object of  preventive detention provisions authorised by the Constitution and  embodied in  the Act.  In any case, it was the satisfaction of the Court by an application of a kind of objective  test  more  stringently  than  the  principle  of criminal procedure, that a defective charge could be amended and would  not vitiate  a trial  without proof  of incurable prejudice to  the accused,  which became,  for all practical purposes, the test of the correctness of detention orders.      I have  ventured to indicate the background which seems to me  to have  probably necessitated  certain amendments in the Act  in  addition  to  the  reasons  which  led  to  the proclamation  of   Emergency,  the   effects  of  which  are considered a  little later  below. We are not concerned here with the  wisdom of the policy underlying the amendments. It is, however.  necessary to  understand the mischief aimed at so as  to be  able to correctly determine the meaning of the changes made      The Central  Act 39  of 1975  which actually  came into effect after Emergency added Section 16A to the Act, to sub- sections of      (1) A. 1. R. 1974 S. C. 183. 335 which have  been the  subject matter of arguments before us. They read as follows:           "(2)  The   case  of  every  person  (including  a      foreigner) against  whom an order of detention was made      under ’this Act on or after the 25th day of June, 1975.      but before  the commencement  of this  section,  shall,      unless such  person is  sooner released from detention,      be viewed within fifteen days from such commencement by      the  appropriate   Government  for   the   purpose   of      determining whether  the detention of such person under

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    this Act  is necessary for dealing effectively with the      emergency  in   respect  of   which  the  Proclamations      referred to  in sub-section  (1) have been issued (here      after in this section referred to as the emergency) and      if, on  such  review,  the  appropriate  Government  is      satisfied that  it is  necessary to  detain such person      for  effectively   dealing  with  the  emergency,  that      Government may  make a  declaration to  that effect and      communicate a  copy of  the declaration  to the  person      concerned.           (3) When  making an  order of detention under this      Act against  any person  (including a  foreigner) after      the  commencement   of  this   section,   the   Central      Government or  the State Government or, as the case may      be, the  officer making  the order  of detention  shall      consider whether  the detention  of such  person  under      this Act is necessary for dealing effective by with the      emergency and  if, on  such consideration,  the Central      Government or  the State Government or, as the case may      be, the  officer is  satisfied that  it is necessary to      detain such  person for  effectively dealing  with  the      emergency,  that  Government  or  officer  May  make  a      declaration to  that effect  and communicate  a copy of      the declaration to the person concerned:           Provided that where such declaration is made by an      officer it shall be reviewed by the State Government to      which such  officer is  subordinate within fifteen days      from the  date of  making of  the declaration  and such      declaration shall  cease to  have effect  unless it  is      confirmed by  the State  Government, after such review,      within the said period of fifteen days".      Act No.  14 of  1976, which  received the  Presidential assent on 25th January 1976, added Section 16A(9) which runs as follows:           "16A(9) Notwithstanding  anything contained in any      other law or any rule having the force of law,-           (a) the  Grounds on which an order of detention is      made or  purported to  be made  under section 3 against      any person  in respect  of whom  a declaration  is made      under  sub-section  (2)  or  sub-section  (3)  and  any      information or  materials on  which such  grounds or  a      declaration under  sub-section (2)  or  declaration  or      confirmation under sub-section (3) or the non- 336      revocation under  sub-section (4)  of a declaration are      based, shall  be treated  as confidential  and shall be      deemed to  refer to  matters of State and to be against      the public  interest to  disclose and save as otherwise      provided in  this Act,  on  one  shall  communicate  or      disclose any  such ground,  information or  material or      any document  containing such  ground,  information  or      material;           (b) No  person against  whom an order of detention      is made  or purported  to be made under section 3 shall      be entitled  to the  communication or disclosure of any      such ground,  information or material as is referred to      in clause  (a) or the production to him of any document      containing such ground, information or material". This Section  and  Section  18  of  the  Act  are  the  only provisions whose validity is challenged before us.      It appears to me that the object of the above mentioned amendments was to affect the manner in which jurisdiction of Courts in  considering claims  for  reliefs  by  detenus  on petitions for  writs of Habeas Corpus was being exercised so that the  only available  means that  had been developed for

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such cases  by the  Courts, that  is to say, the scrutiny of grounds supplied under section 8 of the Act" may be re moved from the judicial armoury for the duration of the Emergency. It may  be mentioned  here that  Art. 22(5) and 22(6) of the Constitution provided as follows:           "22(5) When any person is detained in pursuance of      the order  made under  any law providing for preventive      detention, the  authority making  the order  shall,  as      soon as  may he, communicate to such person the grounds      on which  the order  has been made and shall afford him      the earliest  opportunity of  making  a  representation      against the order.           22(6) Nothing  in clause  (5)  shall  require  the      authority making  any such  order as  is referred to in      that clause  to disclose  facts  which  such  authority      considers  to   be  against   the  public  interest  to      disclose".      The first  contention, that  Section 16A(9) affects the jurisdiction of  High Courts  under Article  226,  which  an order under  Article 359(1)  could not do, appears to me to, be untenable.  I am  unable to  see how a Presidential order which prevents  a claim for the enforcement of a fundamental right from being advanced in a Court during the existence of an Emergency,  could possibly  be said not to be intended to affect the exercise of jurisdiction of Courts at all.      The second  argument, that  Section 16A(9) amounts to a general  legislative   declaration  in   place  of  judicial decisions  which   Courts  had   themselves  to  give  after considering" on  the facts  of each  case,  whether  Article 22(6) could  be applied,  also does  not seem  to me  to be. acceptable. The result of Section 16A(9), if valid, would be to leave  the presumption  of correctness  of an order under Section 3  of the  Act, good on the face of it, untouched by any investigation relating 337 to its correctness. Now, if this be the object and effect of the amendment,  it could  not be said to go beyond making it impossible for  detenus to  rebut a presumptions of legality and validity  which an  order under Section 3 of the Act, if prima facie  good, would raise in any event. The same result could have  been achieved by enacting that a detention order under  section   3,  prima   facie  good,  will  operate  as "conclusive proof"  that the  requirements of Section 3 have been fulfilled.  But,  as  the  giving  of  grounds  is  not entirely dispensed  with under the Act even as it now exists this may  have left  the question  in doubt  whether  Courts could call  upon the  detaining authorities  to produce  the grounds. Enactment  of a  rule of conclusive proof is a well established  form   of  enactments  determining  substantive rights in the form of procedural provisions.      In any case, so far as the rights of a detenu to obtain relief  are   hampered,  the  question  raised  touches  the enforcement of  the fundamental  right to  personal freedom. Its effect  upon the  powers of  the Court under Article 226 is, as  I have already indicated, covered by the language of Article 359(1)  of the Constitution. It is not necessary for me to consider the validity of such a provision if it was to be applied  at a  time not  covered  by  the  Emergency,  or whether it  should be  read down  for the purposes of a suit for damages  where the  issue is  whether the  detention was ordered by  a particular officer out of "malice in fact" and for reasons  completely  outside  the  purview  of  the  Act itself. That  sort  of  inquiry  is  not  open,  during  the Emergency, in proceedings under Article 226.      On the  view I  take, for  reasons which  will be still

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clearer after  a consideration  of the  remaining  questions discussed below.,  I think  that even  the  issue  that  the detention order  is vitiated by "malice in fact" will not be justiciable  in   Habeas  Corpus   proceedings  during   the Emergency although  it may  be in  an ordinary suit which is not filed  for enforcing  a fundamental  right but for other reliefs. The  question of  bona fides  seems to be left open for decision  by such suits on the language of Section 16 of the Act itself which says:           "16. No  suit or other legal proceedings shall lie      against the  Central Government  or a State Government,      and no  suit, prosecution  or other  legal  proceedings      shall lie  against any  person, for  anything  in  good      faith done  or intended to be done in pursuance of this      Act.      Section 16  of the  Act seems to leave open a remedy by way of  suit for  damages for  wrongful  imprisonment  in  a possible case of what may be called "malice in fact". In the cases before  us, we  are only  concerned with Habeas Corpus proceedings under  Article 226  of the Constitution where in my opinion,  malice in  fact could not be investigated as it is bound  to be  an allegation subsidiary to a claim for the enforcement of  a right  to personal  liberty, a fundamental right which cannot be enforced during the Emergency.      In Sree  Mohan Chowdhury  v.  The  Chief  Commissioner, Union Territory  of Tripura(1)  a Constitution Bench of this Court, after  pointing out that Article 32(4) contemplated a suspension of  the guaranteed  right only as provided by the Constitution, said (at p. 450-451 ) :      (1) [1964] 3 S.C.R. 442 at 450. 24-833 Sup CI/76 338           "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  Emergency  Prima      facie, therefore,  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 Mot  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 is  true that  the Presidential  order of 1975, like the residential  order of 1962, does not suspend the general power of  this Court  under Article 32 or the general powers of High  Courts under  Article 226, but the effect of taking

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away enforceability  of the  right of  a detenu  to personal freedom against executive authorities is to affect the locus standi in  cases which  are  meant  to  be  covered  by  the Presidential  order.   Courts,   even   in   Habeas   Corpus proceedings, do  not grant relief independently if rights of the person  deprived of  liberty. If  the locus  standi of a deteneu is  suspended no  one can  claim,, on his behalf, to get his  right enforced.  The result is to affect the powers of Courts,  even if this be an indirect result confined to a class of  cases, but, as the general power to issue writs of habeas Corpus  is not  suspended, this  feature  was,  quite rightly, I  respectfully think, pointed out by this Court in Mohan Chowdhury’s case (supra). It would not e correct to go further and  read more  into the  passage cited  above  than seems intended  to have  been laid  down there.  The passage seems to me to indicate quite explicitly, as the language of article 359(1) itself; shows that the detenu’s right to move the Courts  for the  enforcement of  his right  to  personal freedom,  by   proving  an  illegal  deprivation  of  it  by executive authorities  of the  State, is certainly not there for the  duration of  the Emergency. And, to the extent that Courts do  not, and,  indeed. cannot reasonably, act without giving the  detenu some  kind of  a right  or locus  standi, their power  to  proceed  with  a  Habeas  petition  against executive authorities  of the  State is  itself impaired. It may be that in form and even in subs-      (1) [1964] 3 S. C. R. 442 @ 450. 339 tance, a  general power  to issue  writs  of  Habeas  Corpus remains with   Courts.  But, that  court only  be invoked in cases  falling   entirely  outside   the  purview   of   the Presidential order  and Article  359(1). That is how I, with great  respect,   understand  the   effect  of   Sree  Mohan Chowdhury’s case (supra).      It is  possible that,  if a  case so patently gross and clear of  a detention  falling, on  the face of the order of detention or  the return  made to  a notice  from the  Court outside the  provisions of the Act on the ground of personal malice of  the detailing  authority, or,  some other  ground utterly  outside   the  Act,   arises  so  that  no  further investigation is  called for., it may be possible to contend that it  is not  protected by the Presidential order of 27th June, 1975,  and by  the provisions of Article 359(1) of the Constitution at  all. If  that, could be patent, without any real investigation  or inquiry  at all,  it may stand on the same  footing   as  an   illegal  detention   by  a  private individual.  The  mere  presence  of  an  official  seal  or signature  on   a  detention   order,  in   such  a   purely hypothetical case,  may not  be enough  to convert it into a detention by  the State  or its  agents or officers. That is the almost  utterly inconceivable  situation or type of case which could  still be  covered by the general power to issue writs of Habeas Corpus. There may, for example, be a case of a fabricated order of detention which, the alleged detaining officer, on  receipt of  notice, disclaims.  It is  admitted that Part  Ill of  the Constitution is only meant to protect citizens against  illegal actions of organs of the State and not against wrongs done by individuals. The remedy by way of a writ  of Habeas  Corpus is  more  general.  It  lies  even against illegal  detentions by  private persons although not under  Article  32  which  is  confined  to  enforcement  of fundamental rights  (Vide: Shrimati Vidya Verma through next friend R.  V. S.  Mani, v. Dr. Shiv Narain (1). The Attorney General also concedes that judicial proceedings for trial of accused persons  would fall  outside the  interdict  of  the

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Presidential order  under Article  359 ( 1 ) . ’therefore it is unnecessary  to consider  hypothetical cases  of  illegal convictions where  remedies under  the ordinary  law are not suspended.      Now,  is  it  at  all  reasonably  conceivable  that  a detention order  would, on  the face of it, state that it is not for  one of  the purposes for which it can be made under the Act  or that it is made due to personal malice or animus of the  officer making  it ?  Can we,  for a moment, believe that a  return made  on behalf  of  the  State,  instead  of adopting  a   detention  order,  made  by  an  officer  duly authorised to  act, even if there be a technical flaw in it, admit that  it falls  outside the  Act or was made mala fide and yet  the State  is keeping the petitioner in detention ? Can one  reasonably conceive of a case in which, on a Habeas Corpus petition,  a bare  look at  the detention order or on the return  made, the Court could hold that the detention by a duly  authorised officer under a duly authenticated order, stands on  the same  footing as  a detention  by  a  private person? I  would not  like to  consider purely hypothetical, possibly even  fantastically imaginary,  cases lest  we  are asked to  act, as  we have practically been asked to, on the assumption that  reality is stranger than fiction., and that be-      (1) 119551 2 S. C. R. p. 983. 340 cause, according  to the practice of determining validity of detention orders by the contents of grounds served, a number of detentions  were found,  in the  past, to be vitiated, we should  not   present  that   executive  officers  will  act according to law.      Courts must  presume  that  executive  authorities  are acting in  conformity with both the spirit and the substance of the  law: "omina praesumutur rite esse acts", which means that all official acts are presumed to have been rightly and regularly done.  If the  burden to displace that presumption is upon  the detenu,  he cannot, on a Habeas Corpus petition under Article  226 of  the Constitution.,  ask the  Court to embark upon  an inquiry,  during the Emergency, to allow him to rebut this presumption. To do so would, in my opinion, be plainly to countenance a violation of the Constitution.      A great  deal of  reliance was placed on, behalf of the detenus, on  the principle  stated by  the Privy  Council in Eshuqbayi Eleko  v. Officer  Administering the Government of Nigeria & Anr. (1) where Lord Aktin said (at p. 670):           "Their Lordships  are satisfied  that the  opinion      which has  prevailed that the Courts cannot investigate      the whole of the necessary conditions is erroneous. The      Governor acting  under the  ordinance acts solely under      executive powers,  and in  no sense  as a Court. As the      executive he  can only  act in  pursuance of the powers      given  to  him  by  law.  In  accordance  with  British      jurisprudence no  member of the executive can interfere      with the  liberty or  property  of  a  British  subject      except  on  the  condition  that  he  can  support  the      legality of  his action  before a court of justice. And      it is  the tradition  of British  justice  that  judges      should not  shrink from  deciding, such  issues in  the      face of the executive. The analogy of the powers of the      English Home Secretary to deport alience was invoked in      this  case.   The  analogy   seems  very  close.  Their      Lordships entertain no doubt that under the legislation      in question,  in the  Home Secretary deported a British      subject in  the belief  that  he  was  an  alien,,  the      subject would  have the  right to question the validity

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    of any  detention under  such order  by proceedings  in      habeas corpus,  and that  it would  be the  duty of the      Courts to investigate the issue of alien or not"."      The salutary  general principle,  enunciated above,  is available, no  doubt, to citizens of this country as well in normal times.  But it  was certainly not meant to so operate as to  make the  executive answerable for all its actions to the Judicature despite the special provisions for preventive detention in  an Act  intended to  safeguard the security of the nation,  and, muchless,  during an  Emergency" when  the right to  move Courts  for enforcing  fundamental rights  is itself suspended.  Principles  applicable  when  provisions, such as  those which  the Act  contains, and a suspension of the right  to move  Courts for fundamental rights, during an Emergency, are operative, were thus      (1) [1931] A. C. 662 @ 670. 341 indicated, in  Liversidge v. Sir John Anderson & Anr.,(1) by Viscount  Maughan (at p. 219):           "There can plainly be no presumption applicable to      a regulation  made under  this extraordinary power that      the liberty  of the  person in  question  will  not  be      interfered with,  and equally  no presumption  that the      detention must  not be  made to depend (as the terms of      the Act  indeed suggest) on the unchallengeable opinion      of the Secretary Of State". Following the  ratio decidendi  of Rex v. Secretary of State for Home  Affairs, Ex  party Lees,(2)  the learned  Law Lord said (at p. 217).           "As I  understand the judgment in the Lees case it      negatived the  idea that  the court  had any  power  to      inquire  into   the  grounds  for  the  belief  of  the      Secretary of  State His  good faith not being impugned)      or to  consider whether  there were grounds on which he      could reasonably arrive at his belief". In Liversidge’s  case (supra),  the Court’s power to inquire into the correctness of the belief of the Secretary of State was itself  held to  be barred  merely by  the  terms  of  a Regulation   made   under   a   statute   without   even   a constitutional suspension  of the  right to move Courts such as the one we have before us.      In Liversidge’s  case (supra),  Lord  Wright  explained Eshuqbayi  Elekos’   case  (supra)   ,  cited  before  their Lordships as follows: (at p. 273):           "The other  matter for  comment is the decision in      Eshuqbayi Eleko v. Officer Administering the Government      of Nigeria  (1931) (A.C.  662),  where  the  government      claimed   to   exercise   certain   powers,   including      deportation,  against   the  appellant.  The  appellant      applied for a writ of habeas corpus, on the ground that      the ordinance  relied on  gave  by  express  terms  the      powers contained  only against  one who  was  a  native      chief, and  who had been deposed, and where there was a      native custom  requiring him to leave the area, whereas      actually not  one of  these facts  was present  in  the      case. It was held in effect that me powers given by the      ordinance were  limited to  a case in which these facts      existed. It  was  a  question  of  the  extent  of  the      authority given  by the  ordinance.  That  depended  on      specific facts  capable of proof or disproof in a court      of law,  and unless  these facts  existed, there was no      room for  executive discretion.  This authority has, in      my opinion,  no bearing  in  the  present  case,  as  I      construe the powers and duties given by the regulation.      There are also obvious differences between the ordinary

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    administrative  ordinance  there  in  question  and  an      emergency power  created to meet the necessities of the      war and  limited in  its operation to the period of the      war. The  powers cease  with the  emergency.  But  that      period still  continues and,  it being assumed that the      onus is on          the   respondents in this action of      unlawful imprisonment, the onus      (1) [1942] A. C. p. 206 &  217 & 219 & 273.      (2) [1941] 1 K. B. 72. 342      is sufficiently  discharged, in my opinion, by the fact      of the  order having been made by a competent authority      within the  ambit of  the powers  entrusted to  him and      being regular on its face".      Viscount Maugham,  in Greene  v. Secretary of State for Home Affairs,(1)  after referring  to a  very  comprehensive opinion of  Wilmot C.  J. On  the nature  of  Habeas  Corpus proceedings in  Common Law,  pointed out that a return, good on its  face and  with no  affidavit in support of it, could not be  disputed on  the application  for a  writ. At Common Law, the  "sacred" character  of the return, as Wilmot C. J. called it, even without a supporting affidavit, could not be touched except  by the  consent of the parties", because the whole object  of the  writ was to enquire into the existence of a  legally recognised  cause of  detention, in  a summary fashion, and  not into  the truth  of facts constituting the cause. By  the Habeas  Corpus Act  of 1816,  the  powers  of Courts were extended so that it became possible to go behind the return in suitable cases other than those where a person was confined for certain excepted matters including criminal charges. In  these excepted  matters the  return was  and is still collective        that English Courts do not go behind them. In  Greene’s case,  (supra), the  rule of  presumptive correctness of  the return was applied to the return made on behalf of  the Secretary  of State to the extent of treating it as  practically conclusive.  It was  held that  the  mere production of  the Home  Secretaries order, the authenticity and good  faith of  which were  not impugned,  constituted a complete answer  to an  application for  a  writ  of  Habeas Corpus and  that it was not necessary for the Home Secretary to file  an affidavit.  It is  interesting to  note that, in that case,  which arose  during the  Emergency following the war of 1939, the failure of the Advisory Committee to supply the correct reasons for his detention to the petitioner were not held  to be  sufficient to invalidate his incarceration. On the  other hand,  in these  country" a  violation of  the obligation  to   supply  grounds   of  detention   has  been consistently held to be sufficient to invalidate a detention before the  changes in the Act and the Presidential order of 1975.      By Section 7 of the Act 39 of 1975 Section 18 was added to the  Act with  effect from 25th June 1975. This provision reads:           "18. No  person (including  a foreigner)  detained      under this Act shall have any right to personal liberty      by virtue of natural law or common law, if any". In view   of what I have pointed out earlier, this provision was not  necessary. It appears  to have been added by way of abundant caution.      By Section  5 of  the amendment  Act 14 of 1976 another amendment was  made in  Section 18,  substituting ,  for the words "under  this Act"  used in  Section 18,  the words "in respect of  whom an  order is made or purported to have been made under Section 3", respectively   from 25th day of June, 1975.

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    These amendments are covered by Article 359 (1A) of the Constitution., so that their validity is unassailable during the Emer-      (1) [1942] A. & . 284 @ 293. 343 gency on  the ground  of violation of any right conferred by Part III  Of the Constitution. Nevertheless, the validity of Section 18  of the  Act, as it stands, was challenged on the ground, as I understand it that   is described as "the basic structure.’ of the Constitution was violated because, it was submitted, the  Rule of  Law, which  is a part of the "basic structure" was  infringed by  the amended  provisions. As‘ I have indicated  below., I am unable to subscribe to the view that the  theory of basic structure amounts to anything more than a  mode of  interpreting the  Constitution.  It  cannot imply new  tests outside  the constitution  or  be  used  to defeat Constitutional  provisions. I  am unable  to see  any force in the attack on the validity of Section 18 of the Act on this ground.      The result  of the amendments of the Act, together with the emergency  provisions and the Presidential order of 27th June, 1975,  in my opinion, is clearly that the jurisdiction of High  Courts is itself affected and they cannot go beyond looking at  the prima facie validity of the return made. The production of a duly authenticated order, purporting to have been made by an officer competent to make it under Section 3 of the  Act, is  an absolute  bar to proceeding further with the hearing of a Habes Corpus petition.      (D) The purpose and meaning g of Emergency y provisions , particularly   Article 359 of our Constitution.      From the  inception of our Constitution, it was evident that  the  framers  of  it  meant  to  establish  a  secular democratic system  of  Government  with  certain  objectives before it  without which  real democracy is a mirage. Hence, they provided  us not only with an inspiring Preamble to the Constitution and  basic Fundamental  Rights to citizens, but also with  Directive Principles  of State  Policy so  as  to indicate how  not  only  a  political,  but,  what  is  more important,  social  and  economic  democracy,  with  maximum practicable equality  of status  and opportunity,  could  be attained.  They  foresaw  that  it  may  be  necessary,  for preserving the  system thus  set up and for ensuring a rapid enough march towards the objectives placed before the people of India, to give    the executive branch of Government wide powers, in  exceptional situations, so that it may deal with all  kinds   of  emergencies   effectively,  and.,  thereby, safeguard    the foundations of good Government which lie in discipline  and   orderliness  combined   with  speedy   and substantial justice.  The  late  Prime  Minister  Jawaharlal Nehru once  said: "You  may define  democracy in  a  hundred ways, but  surely one  of its definitions is self-discipline of the community. The more the self-discipline, the less the imposed discipline".      Laws and law Courts are only   part of a system of that imposed discipline  which has  to take its course when self- discipline fails.  Conditions  may supervene, in the life of a nation,  in which  the basic  values we have stood for and struggled  to   attain,   the   security,   integrity,   and independence of the country, or the very conditions on which existence of  law and order and of law courts depend, may be imperilled By  forces operating  from within or from outside the country.  What these  forces are how they are operating, what information  exists  for  the  involvement  of  various individuals, wherever placed, could not 344

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possibly be  disclosed publicly  or become  matters suitable for inquiry into or discussion in a Court of Law.      In  Liversidge   v.  Sir   John  Anderson  (supra)  the following passages  from Rex  v. Halliday,(2)  were cited by Lord Romer  to justify principles   adopted by four out five of their  Lordships in  Liversidges case in their judgments: (1) Per Lord Atkins (at p. 271):           "However precious  the  personal  liberty  of  the      subject may  be, there  is something  for which  it may      well be,  to some extent sacrificed by legal enactment,      namely, national  success in  the war,  of escape  from      national plunder or enslavement  .      (2) Per Lord Finlay, L.C. (at p. 269).           "It   seems   obvious   that   no   tribunal   for      investigating the  question  whether  circumstances  of      suspicion exist  warranting    some  restraint  can  be      imagined less appropriate then a Court of law" After citing  the two  passages  quoted  above,  Lord  Romer observed in Liversidge’s case (supra) (at p. 281):           "I respectfully  agree. I  cannot believe that the      legis legislature or the framers of the regulation ever      intended to constitute the   courts of this country the      ultimate judges of the matters in question".      If, as indicated above, the opinion of the overwhelming majority of      the  Law Lords  of England" in Liversidge’s cause (supra),  following the  principles laid  down earlier also in Rex. v. Halide Ex Parte Zadig’s (supra) was that the jurisdiction of  Courts is itself ousted by a statutory rule vesting the  power              of detention on a subjective satisfaction, based possibly on nothing more than a detenu’s descent from or relationship or friendship with nationals of a country  with which  England may  be at  war, and that the Secretary of  State’s order indicating that he was satisfied about one  of these  matters, on  hearsay information  which could not  be  divulged  in  courts,  in  the  interests  of national safety  and security,  was enough,  I do  not think that either  our Constitution     contemplating an ouster of jurisdiction of  Courts in such cases, or our Parliament, in enacting provisions which have that effect, was going beyond the limits  of  recognised  democratic  principles  as  they operate during  emergencies.  In  fact.  decisions  on  what restraints should  be put  and on  which persons"  during  a national emergency,  in the  interests of national security, are matters  of policy as explained below, which are outside the sphere of judicial determination.      Situations of a kind which could not even be thought of in Eng land are not beyond the range of possibility in Asian and African  countries or  even in  Continental Europe or in America judging from events of our own times. Indeed, we too have  had   our  fill   of  grim  tragedies,  including  the assassination of the father of the nation, which      (1) 1917 A. C. 260  (a) n. 271. 269. 345 could rock  the whole nation and propel it towards the brink of an  unfathomable abyss and the irreparable disaster which anarchy involves.      Let me  glance at the Constitutional History of England from where we took the writ of Habeas Corpus.      Sir Erskine  May wrote  (See: Constitutional History of England, B Chapter XI):           "The writ  of habeas  corpus is unquestionably the      first security of civil liberty. It brings to light the      cause of  every imprisonment,  approves its lawfulness"      or liberates the prisoner. It exacts obedience from the      highest  courts:   Parliament  itself  submits  to  its

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    authority. No  right is more justly valued. It protects      the subject  from unfounded      suspicions,  from  the      aggressions  of   power,  and   from  abuses   in   the      administration of  justice. Yet,  this protective  law,      which gives every man security and confidence, in times      of tranquillity,  has been  suspended, again and again,      in periods  of public  danger or apprehension. Rarely.,      however,  has  this  been  suffered  without  jealousy,      hesitation, and  re monstrance; and whenever the perils      of the  State have been held sufficient to warrant this      sacrifice  of   personal  liberty,   no   Minister   or      magistrate has  been suffered to tamper with the law at      his discretion.  Parliament  alone,  convinced  of  the      exigency of  each occasion,  has suspended, for a time,      the right  of individuals,  in  the  interests  of  the      State.           The first  years after the Revolution were full of      danger. A dethroned king, aided by foreign enemies, and      a powerful   body of English adherents, was threatening      the new  settlement of  the Crown with war and treason.      Hence,  the   liberties  of   Englishmen,  so  recently      assured, were  several  times  made  to  yield  to  the      exigencies of the State. Again, on occasions of no less      peril-the rebellion  of 1755 the Jacobite conspiracy of      1722, and the invasion of the realm li by the Pretender      in  1745-the   Habeas   Corpus   Act   was   suspended.      Henceforth, for nearly half a century, the law remained      inviolate. During the American War, indeed, it had been      necessary  to   empower  the  king  to  secure  persons      suspected of  high treason, committed in North America,      or on  the high seas, or of the crime of piracy: but it      was  not   until  1794  that  the  civil  liberties  of      Englishmen at  home were  again to  be  suspended.  The      dangers and  alarms of  that dark  period have  already      been recounted.  Ministers, believing  the State  to be      threatened by  traitorous conspiracies once more sought      power to countermine treason by powers beyond the law.           Relying upon the report of a secret committee, Mr.      Pitt moved  for a bill to empower his Majesty to secure      and detain  persons suspected of conspiring against his      person and Government. He justified this measure on the      ground that 346      Whatever the  temporary danger of placing such power in the hands of the Government" it was far less than the danger with which  the Constitution and society were threatened. If Ministers abused  the power entrusted to them, they would be responsible for its abuse. It was vigorously op posed by Mr. Fox, Mr.  Grey, Mr. Sheridan, and a small body of adherents. They  denied   the  disaffection   imputed  to   the  people ridiculed the revelations of the committee and declared that no such  dangers threatened  the State  as would justify the surrender of the chief safeguard of personal   freedom. This measure would  give  Ministers  absolute  power  over  every individual in  the kingdom. It would empower them to arrest, on suspicion,  any man whose opinions were abnoxious to then the  advocates   of  reform.,   even  the   members  of  the Parliamentary  opposition.   Who   would   be   safe,   when conspiracies were  everywhere suspected,  and constitutional objects and  language believed  to  be  the  mere  cloak  of sedition’? Let  every man charged with treason be brought to justice; in  the words  of Sheridan, ’where there was guilt, let the  broad axe  fall, but  why surrender             the liberties of the innocent ?"           "The strongest  opponents of  the  measure,  while

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    denying  its  present  necessity,  admitted  that  when      danger is  imminent, the liberty of the subject must be      sacrificed to  the paramount  interests of  the  State.      Ring leaders  must  be  seized,  outrages  anticipated,      plots disconcerted,  and the  dark haunts of conspiracy      filled with  distrust and  terror. And  terrible indeed      was the  power now entrusted to the executive  . Though      termed a  suspension of  the Habeas groups Act, it was.      in truth,  a suspension  of Magna  Charta, and  of  the      cardinal principles  of the  common law.  Every man had      hitherto been free from imprisonment until charged with      crime, by  information upon  oath, and  entitled  to  a      speedy trial,  and the  judgment of  his peers. But any      subject  could   now  he   arrested  on   suspicion  of      treasonable practices,  with  out  specific  charge  or      proof of guilt, his accusers were unknown      ; and in      vain might he demand public accusation and trial. Spies      and  treacherous  accomplices"  however  circumstantial      in their  narratives to  Secretaries of  State and  law      officers,  shrank   from  the  witness-box;  and  their      victims rotted  in gaol. Whatever the judgment, temper,      and good  faith of  the executive,  such  a  power  was      arbitrary,  and  could  scarcely  fail  to  be  abused.      Whatever the  danger by  which it  was justified, never      did the  subject; so  much need  the protection  of the      laws, as  when Government  and society were filled with      suspicions and alarm".      It was  not until  1801 that the Act was considered "no longer defensible  on grounds  of  public  danger  and  Lord Thurlow announced  that he  could "not resist the impulse to deem men  innocent until  tried and convicted". It was urged in defence  of a  Bill indemnifying  an those  who may  have misused or exceeded their powers during the 347 period of  suspension of  the Habeas Corpus in England that, unless it  was passed,  "those channels of Information would be stopped  on which  Government  relied  for  guarding  the public peace". Hence a curtain was drawn to shield all whose acts could  have been  characterized as  abuse or  excess of power.      It is  unnecessary to cite from dicey or modern writers of  British   Constitutional  Law,  such  as  M/s  Wade  and Phillips, to  show how,  in times of emergency, the ordinary functions of  Courts, and,  in particular, powers of issuing writs  of  Habeas  Corpus,  have  been  curtailed.  In  such periods, legislative  measures known  as "suspension  of the Habeas Corpus  Act". Followed  by Acts  of Indemnity,  after periods  of  emergency  are  over,  have  been  restored  to England. But,  during the  first world  war of  1914 and the last world war of 1939, it was not even necessary to suspend the Habeas  Corpus Act  in England  . The Courts themselves, on an  interpretation of  the relevant regulations under the Defence of  Realm Act,  abstained from judicial interference by denying, themselves power to interfere  .      In Halsbury‘s  Laws of  England (4th  Edn. Vol. 8, para 871, page  624), we  find the  following statement about the Crown’s Common Law prerogative power in an Emergency:           "The  Crown  has  the  same  power  as  a  private      individual of  taking all measures which are absolutely      and immediately  necessary for  the purpose  of dealing      with an invasion or other emergency". And,  as   regards  statutory  powers  of  the  Crown  (See: Emergency Powers  Act., 1920,  Sec. l; Emergency Powers Act, 1964, Sec 1), we find (see para 983, page 627):           "If it  appears   to Her  Majesty that events of a

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    specified nature  have occurred  or are about to occur,      Her Majesty may by proclamation declare that a state or      emergency exists.  These events  are those  of  such  a      nature as  to be  calculated, by  interfering with  the      supply and  distribution of  food, water  fuel or light      , or  with the  means of  locomotion,  to  deprive  the      community or  any substantial portion of the community,      or the  essentials of life. No proclamation is to be in      force for  more than  one month.,  without prejudice to      the issue  of another proclamation at or before the end      of that period.       xxx xxx xxx xxx           Where a  proclamation of  emergency has been made,      and, so  long as  it remains  in force,  the Crown  has      power by  order in  Council  to  make  regulations  for      securing the essentials   of life to the Community."      In America  also, the suspension of the right to writes of Habeas  Corpus, during  emergencies, so as to temporarily remove the  regular processes  of  law,  is  permissible  by legislation (See:  Cooley‘s  Constitutional  Law’  4th  Edn. Chapter 34.  p. 360),  but it is limited by (Article 1. Sec. 9, clause  2) the  American Constitution  to  situations  in which there  may be  a rebellion or an invasion (See: Willis on 348 "Constitutional Law  of United States", 1936 edn. p. 441 and p. 570.  Even more  drastic consequences  flow from  what is known in  France as  declaration of a "State of Seige", and, in other  countries,  as  a  "Suspension  of  Constitutional Guarantees".      Under our  Constitution,  it  will  be  seen,  from  an analysis  of   emergency  provisions,   that  there   is  no distinction  between   the  effects   of  a  declaration  of Emergency, under  Article 352(1),  whether the threat to the security of  the State is from internal or external sources. Unlike  some   other  countries"   powers  of   Presidential declarations  under   Article  352(1)   and  359(1)  of  our Constitution are  immune from  challenge in Courts even when the Emergency is over.      Another noticeable feature of our Constitution is that, whereas the  consequences given  in Article 358, as a result of a  Proclamation   under Article  352 (1),  are automatic, Presidential orders  under Article 359(1) may have differing consequences, from  emergency to  emergency, depending  upon the terms  of the  Presidential orders  involved. And  then, Article 359 (1A), made operative retrospectively by the 38th Constitutional amendment,  of 1st  August,  1975,  makes  it clear that  both the Legislative and Executive organs of the State, are  freed, for  the duration  of the Emergency, from the limits imposed by Part III of the Constitution.      It  is  unnecessary  to  refer  to  the  provisions  of Articles 356 and 357 except to illustrate the extremely wide character of  Emergency powers of the Union Govt. which can, by recourse  to these  powers,  make  immune  from  judicial review, suspend  the federal  features of  our  Constitution which have,  sometimes, been  elevated to  the basic  level. These provisions  enable the  Union Govt.  to supersede both the legislative and executive wings of Government in a State in the  event of  a failure  of Constitutional  machinery in that State,  and to administer it through any person or body of persons  under Presidential directions with powers of the State Legislature  "exercisable by or under the authority of Parliament". Article  360, applicable  only to Proclamations of financial  emergencies, with  their special consequences, indicates the  very comprehensive character of the Emergency

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provisions contained  in part  XVIII of our Constitution. We are really directly concerned only with Articles 352 and 353 and 358  and 359  as they  now stand.  They  are  reproduced below:           "352. (1)  If the  President is  satisfied that  a      grave emergency exists whereby the security of India or      of any  part of  the territory  thereof is  threatened,      whether by  war  or  external  aggression  or  internal      disturbance,  he   may,   by   Proclamation,   make   a      declaration to that effect.           (2)  A Proclamation  issued under  clause (1)- (a)                may be revoked by a subsequent Proclamation;           (b)  shall  be   laid   before   each   House   of                Parliament;           (c)  shall cease  to operate  at the expiration of                two months  unless before  the expiration  of                that  period   it  has   been   approved   by                resolution of both Houses of Parliament. 349           Provided that  if any  such Proclamation is issued      at a  time when  the  House  of  the  People  has  been      dissolved or the dissolution of the House of the People      takes place during the period of two months referred to      in sub-clause  (c), and  if a  resolution approving the      Proclamation has  been passed by the Council of States,      but no resolution with respect to such Proclamation has      been passed  by the  House of  the  People  before  the      expiration of that period, the Proclamation shall cease      to operate  at the  expiration of  thirty days from the      date on  which the House of the People first sits after      its reconstitution  unless before the expiration of the      said period  of thirty  days a resolution approving the      Proclamation has  been also  passed by the House of the      People.           (3) A Proclamation of Emergency declaring that the      security of  India or  of any  part  of  the  territory      thereof is  threatened by war or by external aggression      or by  internal disturbance  may  be  made  before  the      actual occurrence  of war  or of any such aggression or      disturbance if the President is satisfied that there is      imminent danger thereof.           (4) The  power conferred  on the President by this      Article shall  include the  power  to  issue  different      Proclamations  on   different  grounds,  being  war  or      external aggression or internal disturbance or imminent      danger  of  war  or  external  aggression  or  internal      disturbance whether  or not  there  is  a  Proclamation      already issued  by the  President under  clause (1) and      such Proclamation is in operation.           (5)Notwithstanding anything in this Constitution,-           (a)  the satisfaction  of the  President mentioned                in clause  (1) and  clause  3) shall be final                and conclusive and shall not be questioned in                any court on any ground;           (b)  subject to  the  provisions  of  clause  (2),                neither the Supreme Court nor any other court                shall have  jurisdiction    to  entertain any                question, on  any ground,      regarding  the                validity of-                (i)  a declaration  made by  Proclamation  by                     the President  dent to the effect stated                     in clause (1); or                (ii) the   continued    operation   of   such                     Proclamation".           "353. While  a Proclamation  of  Emergency  is  in

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    operation, then-           (a) notwithstanding anything in this Constitution,      the executive  power of  the Union  shall extend to the      giving of  directions to  any State as to the manner in      which the executive power thereof is to be exercised;           (b) the  power of  Parliament to  make  laws  with      respect to  any matter shall include power to make laws      conferring 350      powers  and   imposing  duties,   or  authorising   the      conferring of powers and the imposition of duties, upon      the Union  or officers  and authorities of the Union as      respects that  matter, notwithstanding  that it  is one      which is not enumerated in the Union List."           "358. While  a Proclamation  of  Emergency  is  in      operation, nothing  in article  19 shall  restrict  the      power of  the State  as defined in Part III to make any      law or  to take  any executive  action which  the State      would but  for the provisions contained in that part be      competent to  make or  to take,  but any  law  so  made      shall, to the extent of the incompetency, cease to have      effect as  soon as  the Proclamation ceases to operate,      except as  respects things  done or  omitted to be done      before the law so ceases to have effect".           "359 (1)  Where a  Proclamation of Emergency is in      operation, the  President may by order declare that the      right to  move any court for the enforcement of such of      the rights conferred by Part III as may be mentioned in      the order  and all proceedings pending in any court for      the enforcement of the rights so mentioned shall remain      suspended for  the period during which the Proclamation      is ill  force or  for such  shorter period  as  may  be      specified in the order.           (1A)  While   an  order   made  under  clause  (1)      mentioning any  of the  rights conferred by Part III is      in operation,  nothing in  that Part  conferring  those      rights shall restrict the power of the State as defined      in   said Part to make any law or to take any executive      action which  the State  would but  for the  provisions      contained in that Part be competent to make or to take,      but any  law so  made shall,  to the  extent of  the in      competency, cease  to have  effect as soon as the order      aforesaid ceases  to operate, except as respects things      done or  omitted to be done before the law so ceases to      have effect.           (2) An  order made  as aforesaid may extend to the      whole or any part of the territory of India.           (3) Every  order made  under clause  (1) shall, as      soon as  may be  after it  is made, be laid before each      House of Parliament".      Before dealing with relevant authorities on the meaning and effects  of Article  358 and  359 of the Constitution, I will indicate  the  special  features  and  context  of  the Presidential order  of 27th June, 1975, as compared with the Presidential order  of 3rd  November, 1962,  which  was  the subject matter  of earlier  pronouncement of  this Court  on which considerable reliance has been placed on behalf of the detenus. In  fact, the next two topics are so connected with the Emergency  provisions   that there is bound to be a good deal of  overlapping between  what I  have, for  the sake of convenience  only,  tried  to  discuss  under  three  heads. Different heads  or names  are not infrequently used only to indicate different  aspects of  what is really one connected subject 351

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matter. Perhaps the last and concluding topic is wide enough to cover  the scope of the whole discussion.      E.  The   effect  of   the  Presidential   orders   and particularly the  order of 27th June, 1975, on the rights of detenus.      The Presidential  order of 3rd November 1962 was issued after the  proclamation of Emergency under Article 352(1) on 26th October, 1962. That proclamation said:           "......  a  grave  emergency  exists  whereby  the      security   of   India   is   threatened   by   external      aggression". On the  other hand,  the Presidential  order of  27th  June, 1975, with  which we  are concerned  here was issued under a proclamation which   declares "that a grave emergency exists whereby the  security. Of  India is  threatened by  internal disturbances".      There was  also  a  Presidential  proclamation  of  3rd December, 1971,  repeating the  terms of the proclamation of 26th October, 1962, as under:           "In exercise of the powers conferred by clause (1)      of article  352 of  the Constitution,  I, V.  V.  Giri,      President of India, by this Proclamation declare that a      grave emergency exists whereby the security of India is      threatened by external aggression .      The Presidential  order of 3rd November, 1962, reads as follows:           "In exercise  of the  powers conferred          by      clause (1)  of article  359 of  the  Constitution,  the      President hereby  declares that the right of any person      to move  any court  for the  enforcement of  the rights      conferred  by   article  21   and  article  22  of  the      Constitution shall  remain  suspended  for  the  period      during which the Proclamation of Emergency issued under      clause (1)  of Article 352 thereof on the 26th October,      1962 is  in force,  if such person has been deprived of      any such  rights under  the Defence of India ordinance,      1962 (4 of 1962) or any rule or order made thereunder".      The Presidential  order of  27th June,  1975,  runs  as follows:           "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  (including  a      foreigner) to move any Court for the enforcement of the      rights conferred  by article 14, article 21 and article      22 of  the Constitution  and ail proceedings pending in      any court  for the  enforcement of  the above mentioned      rights shall  remain suspended  for the  period  during      which the  Proclamations of Emergency made under clause      (1) of  article 352  of the  Constitution  on  the  3rd      December, 1971  and on  the 25th June, 1975 are both in      force 352           (2) This  order shall  extend to  the whole of the      territory of  India  except  the  State  of  Jammu  and      Kashmir.           (3) This  order shall be in addition to and not in      derogation    of any order made before the date of this      order  under   clause  (1)   of  article   359  of  the      Constitution".      The striking  differences  in  the  terms  of  the  two Presidential orders set out above are:      (1) The  Presidential order  of 1962  did  not  specify Article 14 of the Constitution, but Article 14, guaranteeing equality before  the law and equal protection of laws to all persons in  India, is  mentioned in  the 1975  order. To  my

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mind, this  does make some difference between the intentions behind and effects of the two Presidential orders.      (2) The Presidential order of 1962 expressly hedges the suspension    of  the specified  fundamental rights with the condition, with  regard to  deprivations covered by articles 21 and  22 of  the Constitution  that, "if  such  person  is deprived of  such right  under the  Defence of  India,  Act, 1962, or any rules or order made thereunder". In other words on the terms of the 1962 Presidential order, the Courts were under a  duty to  see whether  a deprivation satisfies these conditions or  not. They  could adjudicate upon the question whether a  detention was  under  the  Act  or  a  rule  made thereunder. On  the other  hand, the  Presidential order  of 1975 unconditionally  suspends the enforcement of the rights conferred upon  "any person  including a  foreigner" to move any Court  for the  enforcement of  the rights  conferred by Articles 14, 21, and 22 of the Constitution. The Courts are, therefore, no longer obliged or able to test the validity of a detention  by examining  whether they conform to statutory requirements. They  will have  to be content with compliance shown with forms of the law.      (3) Presidential  order of  1962 makes  no  mention  of pending proceedings, but the 1975 order suspends all pending proceedings for  the enforcement  of  the  rights  mentioned therein. This  further clarifies  and  emphasizes  that  the intention behind  the Presidential  order  of  1975  was  to actually  affect   the  jurisdiction   of  Courts  in  which proceedings were  actually pending.  The inference from this feature also is that all similar proceedings in future will, similarly, be affected.      The result  is that  I think that there can be no doubt whatsoever that  the Presidential  order of 27th June, 1975, was a part of an unmistakably expressed intention to suspend the ordinary  processes. Of law in those cases where persons complain of  infringement of their fundamental rights by the executive authorities  of the  State. The  intention of  the Parliament itself  to bring  about this  result, so that the jurisdiction of Courts under Article 226, in this particular type of  cases is  itself affected  for the  duration of the emergency, seems clear enough from the provisions of Section 16A(9) of  the Act,  introduced by Act No. 14 of 1976, which received Presidential  assent on  25th January  1976, making Section 16A(9)  operative retrospectively  from  25th  June, 1975. 353      The question before us is: What is the intention behind the Presidential order of 27th June, 1975. After assigning a correct meaning to it, we have to determine whether what was meant to  be done  lay within  the scope of powers vested by Article 359  of the  Constitution in the President. There is no doubt  in my  mind that  the object  of the  Presidential order of  27th June,  1975, by suspending the enforcement of the specified rights, was to affect the powers  of Courts to afford relief  to those  the enforcement of whose rights was suspended. I  have already  indicated, this  was within  the purview of  Article 359(1)  is the  Constitution. Hence, the objection that the powers of the Court under Article 226 may indirectly be affected is no answer to the direct suspension of rights which was bound to have its effect upon the manner in which  jurisdiction is  or could  reasonably be exercised even if that jurisdiction cannot be itself suspended for all types of  cases. It  is enough  if the ambit of the power to suspend under  Article 359(1) is such as to make exercise of the jurisdiction  to protect  guaranteed fundamental  rights not reasonably possible.

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    Section 16A(9)  also appears  to me, as held by My lord the Chief  Justice, to  make it  impossible  for  Courts  to investigate questions  relating to  the existence or absence of bona  fides at  least in proceedings under Article 226 of the Constitution.  It is  clear that the validity of Section 16A(9) cannot  be challenged  on the ground of any violation of Part III of the Constitution in view of the provisions of Article 359 (1A) .      No  previous  decision  of  this  Court  deals  with  a situation which  results  from  the  combined  effect  of  a Presidential order  couched in  the language of the order of 27th June  1975, and  a statutory provision, such as Section 16A(9)  of   the  Act,  the  validity  of  which  cannot  be challenged. Hence,  strictly speaking, earlier decisions are not applicable.  I will,  however, consider  them under  the next heading as considerable argument has taken place before us on  the assumption  that these  cases do  apply to such a situation.      (F)The Rule  of Law  as found  in our Constitution, and      how it operates during the Emergency.      As I  have indicated earlier in this judgment, the term Rule of Law is not a magic wand which can be waved to dispel every difficultly.  It is  not an Aladin’s Lamp which can be scratched to  invoke a  power which  brings to any person in need whatever  he or  she may  desire to  have. It  can only mean, for  lawyers with  their feet  firmly planted  in  the realm of  reality, what  the law  in a  particular State  or country is  and what  it enjoins. That law in England is the law made  by Parliament.  That is why Sir Ivor Jennings said (See: Law  and the  Constitution-III Edn.)  that "in England supremacy of Parliament is the Constitution". And naturally, the Constitution  of a  country and not something outside it contains the  Rule of  Law of  that country. This means that the Rule  of Law  must  differ  in  shades  of  meaning  and emphasis from  time to time and country to country. It could not be  rigid unchanging, and immutable like the’ proverbial laws of  the Medes  and Persians.  Nevertheless, one  has to understand clearly what it means 25-833 Sup C I/76 354 in a  particular context.  It cannot  be like  some brooding omnipotence in  the skies. Its meaning cannot be what anyone wants to  make  it.  It  has  to  be,  for  each  particular situation, indicated  by the  Courts which are there to tell the people what it means.      This Court  has, in  no unmistakable  terms,  indicated what the Constitution means and how the Rule of Law embedded in it works even during Emergencies.      A statement  of the  Rule of  Law by  Jackson,  J.,  in Youngstown Sheet  &  Tube  Co.  v.  Sawyer(1),  quoted  with approval by  this Court,  in Chief  Settlement Commissioner, Rehabilitation Department Punjab & ors. etc. v. Om Prakash & ors.(2) etc. (at page 661):           "With all  its defects  delays and  inconveniences      men have  discovered no  technique for  long preserving      free government  except that the Executive be under the      law,  and   that  the  law  be  made  by  Parliamentary      deliberations".      It was explained there:           In our constitutional system, the central and most      characteristic feature  is the  concept of  the rule of      law which  means, in the present context, the authority      of the  law courts to test all administrative action by      the  standard   of  legality.   The  administrative  or      executive action  that does  not meet the standard will

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    be  set  aside  if  the  aggrieved  person  brings  the      appropriate action  in the competent court. The rule of      law rejects  the conception  of the Dual State in which      governmental action  is placed in a privileged position      of immunity  from control  of law.  Such  a  notion  is      foreign to our basic constitutional concept".      This statement,  no  doubt,  includes  the  concept  of determination by  Courts of the question whether an impugned executive action  is within  the bounds  of law. However, it presupposes:  firstly,   the  existence   of  a   fixed   or identificable rule  of law which the executive has to follow as distinguished  from a  purely policy  decision open to it under  the   wide  terms   of  the   statute  conferring   a discretionary power to  act. and, secondly, the power of the Courts to  test that  action by reference to the Rule. Even, in Emergencies,  provided the  power of the Court to so test the legality  of some executive act is not curtailed, Courts will apply  the test  of legality  "if the  person aggrieved brines the action in the competent Court". But, if the locus standi of  the person  to move  the Court  is gone  and  the competence of  the Court  to enquire  into the  grievance is also  impaired   by  inability  to  peruse  the  grounds  of executive    action  or their relationship with the power to act, it  is no  use appealing  to this particular concept of the Rule  of law  set out  above. It is just inapplicable to the situation  which arises  here. Such  a situation      is governed by  the Emergency  provisions of  the  Constitution These provisions contain the Rule of Law for such situations in our country.      (1) 343 U.S. 579, 655.      (2) [1968] 3 S. C. R. 655 @ 661. 355      In Mohd. Yaqub etc. v. the State of Jammu & Kashmir(1), a seven  Judge bench of this Court pointed out that, whereas Article 358,  by its  own force,  suspends the guarantees of Article 19,  Article 359(1) has the effect of suspending the operation of specified fundamental rights (strictly speaking it is  enforcement only  which is  suspended) so  that these concepts cannot  be used  to test  the legality of executive action. Now, much of what Dicey meant by the Rule of Law was certainly  sought   to  be  embodied  in  Part  III  of  our Constitution. If,  however, the  application of Articles 14, 19, 21  and 22  of the  Constitution  is  suspended,  it  is impossible to  say that  there is  a Rule of Law found there which is  available for  the  Courts  to  apply  during  the emergency to test the legality of executive action.      Makhan Singh  v. State  of  Punjab(2),  a  seven  Judge decision of  this Court was sought to be made a foothold for several arguments  on behalf  of the  detenus. It,  however, seems to  me to  have  laid  down  more  propositions  which demolish various  contentions  advanced  on  behalf  of  the detenus  than  those  which  could  assist  them.  One  main question  considered   in  that  case  was  whether  Section 491(1)(b) of  the Code  of Criminal Procedure could afford a statutory remedy,  by an order or direction in the nature of a writ of Habeas Corpus, at a time   when enforcement of the fundamental right  to personal  liberty was suspended by the Presidential order  of  1962  already  set  out  above.  The suggestion that a Common Law remedy by way of writ of Habeas Corpus exists,  even after Section 491 was introduced in the Criminal Procedure Code in 1923, was negatived. The sweep of Article  359(1)   of  the   Constitution,  taking   in   the jurisdiction of  "any Court", was  held wide enough to cover any  kind   of  relief  claimed  by  a  petitioner  for  the enforcement of a specified fundamental right. Inter alia, it

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was held (at p. 821-822):           "If Art.  359(1) and the Presidential order issued      under  it   govern  the   proceedings  taken  under  s.      491(1)(b)   the fact  that the  court can  act suo motu      will not  make any difference to the legal position for      the simple  reason that  if a  party is  precluded from      claiming his  release on  the ground  set out by him in      his petition,  the Court  cannot, purporting to act suo      motu, pass  any order  inconsistent with the provisions      of Art.  359(1) and the Presidential order issued under      it. Similarly,  if the  proceedings under  s. 491(1)(b)      are hit  by Art. 359(1) and the Presidential order, the      arguments based  on the  provisions of Art. 372 as well      as Arts.  225 and 375 have no validity. The obvious and      the necessary  implication of  the  suspension  of  the      right of  the citizen  to move  any court for enforcing      his specified  fundamental rights  is  to  suspend  the      jurisdiction of the Court pro tanto in that behalf" This is  exactly the  interpretation which  I  have  adopted above of Sree Mohan Chowdhury’s case (supra).      (1) [1968] 2 S. C. R. p. 227 @ 234.      (2) [1964] 4 S. C. R. 797 @ 821-822 356      It was  also held  in Makhan Singh‘s case (supra) that, as no  attack on the validity of the Defence of India Act of 1962 and  the Rules  framed thereunder,  on  the  ground  of violation  of   fundamental  rights,  was  open  during  the emergency, no  petition was  maintainable on  the ground  of such alleged invalidity. It was held (at p. 825-826) there:           "Therefore, our conclusion is that the proceedings      taken on behalf of the appellants before the respective      High Courts  challenging their  detention on the ground      that the  impugned Act  and the  Rules are void because      they contravene  Arts. 14,  21 and  22, are incompetent      for the  reason that  the fundamental  rights which are      alleged to  have been  contravened are specified in the      Presidential order  and all citizens are precluded from      moving any  Court  for  the  enforcement  of  the  said      specified rights".      After having decided the questions actually calling for determination in that case, Gajendragadkar, J., speaking for the majority,  ex pressed  some views  on the possible pleas which may still be open to petitioners in hypothetical cases despite the  Presidential order  of  1962,  set  out  above, passed under Article 359(1). He said (at page 828):           "If in  challenging the  validity of his detention      order, the  detenu is  pleading any  right outside  the      rights specified  in the  order, his  right to move any      court in  that behalf  is not  suspended, because it is      outside  Art.   359(1)  and  consequently  outside  the      Presidential Order  itself. Let  us take a case where a      detenu has  been detained in violation of the mandatory      provisions of  the Act.  In such a case, it may be open      to the  detenu to contend that his detention is illegal      for the reason that the mandatory provisions of the Act      have been  contravened. Such  a plea  is  outside  Art.      359(1) and  the right  of the  detenu to  move for  his      release on  such a  ground cannot  be affected  by  the      Presidential order."      Again, it was observed (at page 828-829):           "Take also a case where the detenu moves the Court      for a  writ of  habeas corpus  on the  ground that  his      detention has  been  ordered  malafide.  It  is  hardly      necessary to  emphasis that  the exercise  of  a  power      malafide  is  wholly  outside  the  scope  of  the  Act

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    conferring the  power and  can always  be  successfully      challenged. It  is true that a mere allegation that the      detention or  malafide would  not be enough, the detenu      will have to prove the malafides. But in the mala fides      are  alleged,  the  detenu  cannot  be  precluded  from      substantiating his  plea  on  the  ground  of  the  bar      cleated by Art. 359(1) and the Presidential order. That      is another kind of plea which is outside the purview of      Art. 359(1)" The two  passages set  out above,  stating what  may be  the position in purely hypothetical cases, are the mainstrays of some of the argu 357 ments for  the petitioners  But, none of the Counsel for the petitioners has stated how these observations are applicable to facts  of the  case to the particular petitioner for whom he appears.  Assuming, however,  that the hypothetical cases indicate good  grounds on  which a  Habeas  Corpus  petition could be  allowed even in an Emergency, it was certainly not decided in  Makhan Singh‘s  case (supra)  what  the  process could be  for ascertaining  that one of these grounds exist. if that  process involves  a consideration  of  evidence  in support of a plea, such as that of mala fides in proceedings under Article  226" the  most important,  evidence would  be grounds of  detention. These  grounds constituted  the lever which could  have been and was used in the past by Courts to reach decisions  on various pleas, such as the plea that the order was  not passed  after due  application of mind to the facts of the detenu’s case or that the’ satisfaction reached was not  with regard  to legally relevant grounds at all. No such means  are available now. This difficulty was certainly not in the way at the time of the decision in Makhan Singh‘s case (supra).      I am therefore, of the opinion that pleas which involve any adduction  of’ evidence  would, at any rate, be entirely excluded  by  the  combined  effect  of  the  terms  of  the Presidential order of 27th June, 1975, read with the amended provisions of  Section 16A(9)  of the  Act. A  perusal of S. Pratap Singh  v. State  of Punjab,(1)  will show the kind of evidence which  often becomes necessary to justify a plea of "malice in  fact". Pleas  about vires of the detention order itself e.g.  whether it  is based  on, irrelevant grounds or was not  passed after due application of mind) often require investigation or  questions of  fact involving  scrutiny  of actual grounds  of detention  which is  hit by  the  embargo against an  assertion of  a right to move for enforcement of the  right   to  personal‘freedom  and  prohibition  against disclosure of  grounds. So long as the executive authorities of  the   State  purport   to  act  under  the  Act,,  their preliminary objection  against further  hearing will prevail unless, of  course, the officer purporting to detain had, in fact, not  been invested at all with any authority to act in which case  the detention  would, in  my opinion,  be on the same footing  as one  by a  private person  who has no legal authority whatsoever to detain. But, such a defect has to be apparent either  on the face of the order or admitted in the return. Moreover,  it can  be cured  by an  adoption of  the order by the State.      Detentions which not only do not but could not possibly have  ally  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

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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. All the cases before us are, as far as I know. OF detentions by  duly empowered  official under,  prima facie, good orders.  The possibility,  however, of  so  unlikely  a hypothetical case      (1)[1964] 4 S. C. R. 733. 358 where there  is a lack of legal power to act, which could be easily removed  by the  executive authorities  of the  State concerned themselves, whenever they desire to do so, is only mentioned to  illustrate my  view that the test of legality, applied by  Courts, is  not entirely abrogated and abandoned in the  current emergency.  But, it  can be  only one. which should be  applicable without  going into facts lying behind the  return.   The  presumption   of  validity   of  a  duly authenticate order.  of an  officer authorized to pass it is conclusive in Habeas Corpus proceedings during   the current emergency      State  of  Madhya  Pradesh  &  Anr.  v.  Thakur  Bharat Singh,(1) was  another decision of the Constitution Bench of this Court  relied upon  strongly on  behalf of  detenus. In that case, an order prohibiting  petitioner from residing in a specified area under section 3(1)(b) of the Madhya Pradesh Public Security  Act, 1959,  which was  found  to  be  void, because  the   provision  infringed   Article  19   of   the Constitution,  was   held  to  be  challengeable  during  an Emergency  despite   the  provisions  of  Art.  358  of  the Constitution. The  ground  of  the  decision      was  that, although, the  empowering  provision  could  not  have  been challenged if  it was  contained in an enactment made during the emergency,  yet as  the provision  was made  by  an  Act passed  at   a  time  when  Article  19  was  operative  the invalidity of  the provision  could be  demonstrated despite the existence of the emergency. I do not think that there is any such  case before  us. It  seems to me to he possible to distinguish the  case on  the ground  that it  was a case of patent voidness of the order passed so that the principle of legality, which  is not  suspended, could  be affirmed  even apart from  enforcement of  a specified fundamental right. I think it  was placed  on such a footing by Shah J., speaking for this Court.      State of Maharashtra v. Prabhakar Pandurang Sangzgiri & Anr.,(2) another  decision of the Constitution Bench of this Court, was  also cited.  There, an illegal order prohibiting the sending  out of jail by a detenu of a book on matters of scientific interest  only, for publication, was quashed by a High Court,  under Article  226 of the Constitution" despite the  Presidential   order   under   Article   359   of   the Constitution, on  the ground  that there was no condition at all in  the Bombay  Conditions  of  Detention  order,  1951, authorising the  Government of  Maharashtra to  prohibit the publication of  a book  of purely  scientific interest  just because the  petitioner happened  to be  detained under  the Defence of  India Rules,  1962. The  High Court’s  view  was affirmed by  this Court.  This case  has nothing  to do with preventive detention.  It is a case in which this Court held that an  ultra vires order could be set aside. This could be done under  the residuary  jurisdiction of  the High  Court, which could  operate  for  "any  other  purpose".  The  mere existence of  the emergency  could not, it was held, suspend this power.  The test applied was of bare illegality outside Article 19 of the constitution  .

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    (1) 11967] 2 S. C. R. 454.      (2) [1966] Supp S. S. C. R 702. 359      In Dr.  Ram Manohar  Lohia v. State of Bihar & ors.,(1) this Court  did, in  a petition  under  Article  32  of  the Constitution apply  the test  of a  satisfaction required on relevant grounds,  by Rule  30, subrule  1, Defence of India Rules, 1962,  as a condition precedent to detention, because the grounds  of detention  were mentioned  in the  detention order itself so that they could be used to determine whether the detention order fell within the purposes of the Act. The writ petition  was allowed.  The alleged satisfaction of the District Magistrate,  who was  the detaining  authority, was found, on  the ground  given for  detention, to fall outside Rule 30.  It was  held that  the  Presidential  order  under Article 359  was not  intended to  condone violations of the defence of  India Act  or the  rules made thereunder and did not authorise  ultra vires  or mala  fide detentions. It was pointed out  here that satisfaction about the need to detain in the  interests of "law and order ’ was not the same thing as one  in the  interests of "public order". In this case, a well-known distinction  between ‘’public order" and "law and order", was  drawn by  Hidayatullah, J.,  in  the  following terns:           "It will  thus appear  that just as "public order"      in the rulings of the Court (earlier cited) was said to      comprehend  disorders   of  less   gravity  than  those      affecting "security  of State",  "law and  order"  also      comprehends  disorders   of  less  gravity  than  those      affecting "public  order". One  has  to  imagine  three      concentric  circles.   Law  and  order  represents  the      largest  circle   within  which   is  the  next  circle      representing  public  order  and  the  smallest  circle      represents security  of State.  It is  then easy to see      that an  act may  affect law  and order  but not public      order just  as an  act may  affect public order but not      security  of   the  State.   By  using  the  expression      ’maintenance of law and. Order" the District Magistrate      was widening  his own  field of action and was adding a      clause to the Defence of India Rulers.      I take  the decision  of this Court in Dr. Lohia‘s case to mean  that if  the order,  on the face of it., is bad and does not  satisfy the  requirements of  the law  authorising detention, the  detenu may  be released. Sarkar, J., pointed out there:           "The  satisfaction   of   the   Government   which      justifies the  order under  the rule  is  a  subjective      satisfaction. A  court cannot  enquire whether  grounds      existed which  would have  created that satisfaction on      which alone  the order could have been made in the mind      of a  reasonable person.  If that is so-and that indeed      is what  the respondent  State contends  it seems to me      that when an order is on the face of it not in terms of      the  rule   a  court   cannot  equally  enter  into  an      investigation whether  the order  of detention  was  in      fact, that is to say, irrespective of what is stated in      it, in  terms of  the rule.  In other  words. in such a      case the State cannot be heard to say or prove that the      order was  in fact  made for  example, to  prevent acts      prejudicial to public. Order which would      (1) [1966] 1 S. C. R. 709. 360      bring it  within the rule though the order does not say      so. To  allow that  to be  done would  be to  uphold  a      detention without a proper order".

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    The  case  was  also  decided  on  a  consideration  of evidence on  the ground  that there  was an  area of enquiry opened up  by the grounds given for entry by the Court. I do not know  how any  decision could  have been  given  in  Dr. Lohia’s case  if grounds  of detention  were not found to be bad on the very face of the order stating those grounds, or, if there  was no door left open for judicial scrutiny due to a provision  such a  Section 16A(9)  of the  Act before  us. Thus, the law considered and applied in Dr. Lohia‘s case was different from  the law  we have  to apply under a different set of circumstances as explained above.      In K.  Anandan  Nambiar  &  Anr.  v.  Chief  Secretary, Government of Madras & ors.(1) a writ petition under Article 32 of  the Constitution by a Member of Parliament during the currency of  an emergence  and  a  Presidential  order,  was dismissed although his locus standi to maintain the petition was affirmed on the following ground:           "The petitioners  contend that  the relevant  Rule      under which  the impugned orders of detention have been      passed is  invalid on grounds other than those based on      Arts. 14,  19, 21  and 22"  and if  that plea  is well-      founded, the  last clause  of the Presidential order is      not satisfied  and the bar created by it suspending the      citizens’ fundamental  rights under Articles 14, 21 and      22 cannot be pressed into service".      Apparently, the  view adopted in Nambiar’s case (supra) was that  to question  the validity  of the  provision under which the  detention order is made could not be equated with an allegation  of infringement  of procedure  established by law. Moreover, this decision was also in a different context with a  different set  of applicable provisions. None of the cases before  us involves the assertion that the power under which the detention order purports to be made itself did not exist in the eye of law.      In Durga  Dass Shirali  v. Union  of  India  &  ors.  a Habeas     Corpus  petition against  a detention order under Rule 30  of the  Defence of  India Rules,  1962,  was  again dismissed. But,  it  was  held  that  Article  358  and  the Presidential order  under Article  359(1) did  not debar the petitioner from  assailing his  detention on  the ground  of mala fides  or  on  the  ground  that  any  of  the  grounds mentioned in the order of detention is irrelevant. This case is also distinguishable on the ground that the context" from the point of view of the applicable law, was different.      In Jai  Lal v.  State of  West Bengal,  (8) this Court, after  taking   evidence  by  affidavits  into  account  and considering  the   pleas  of   mala  fides,   rejected   the petitioner’s case  although the  petitioner was  held on the strength of  earlier decisions  of this  Court, entitled  to raised the      (1) [1966] 2 Sr C. R. 406.      (2) [1966] S. C. R. 573.      (3) [1966] Supply. S. C. R. p. 4, 64. 361 pleas of  mala fides  despite the  Proclamation of emergency and the  Presidential order.  Again,  the  context  and  the applicable law there were different      We, however,  see that,  despite  the  Proclamation  of emergency and  a Presidential  order under  Article  359(1), this Court  has held  that High Courts, in exercise of their supervisory  jurisdiction,  could  entertain  Habeas  Corpus petitions and  enforce the principle of legality against the detaining authorities.  No  doubt,  the  executive  and  the legislative organs  of the  State were  fully aware  of  the nature and  effect of  the decisions  of this  Court. It is,

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therefore., not  surprising that,  by means of a differently phrased Presidential  order of  17th  Junc.  1975,  and  the amendment in  the Act, introducing rather drastic provisions of Section 16A of the Act, the intention has been made clear that preventive  detention should  be  a  matter  controlled exclusively by the executive departments of the State.      It was  contended by  Mr. Tarkunde that the Rule of Law under our  Constitution is  embodied  in  the  principle  of Separation of Powers. It is very difficult for me to see the bearing of  any such  doctrine on a pure and simple question of  determination  of  the  meaning  of  constitutional  and statutory provisions  couched in  words which  leave few  D’ doubts unresolved.  However,  as  arguments  based  on  this doctrine were  advanced, I  will deal  with  the  manner  in which, I think, laws relating to preventive detention fit in with the  extent to  which our  constitution recognises  the doctrine.      In Rai  Sahib) Ram  Jawaya Kapur & ors. v. The Stale of Punjab,(1) Mukherjea, C.J., speaking for this Court, said: E           "The Indian Constitution has not indeed recognised      the doctrine  of separation  of powers  in its absolute      rigidity but  the functions  of the  different parts of      branches of  the Government    have  been  sufficiently      differentiated and  consequently it  can very  well  be      said  that   our  Constitution   does  not  contemplate      assumptions, by  one organ  or part  of the  State,  of      functions  that  essentially  belong  to  another.  The      executive   indeed   can   exercise   the   powers   of      departmental or  subordinate    legislation  when  such      powers are delegated to it by the legislature". He further added:          "Our Constitution, though federal in its structure,      is modelled  on the  British Parliamentary system where      the  executive       is  deemed  to  have  the  primary      responsibility  for  the  formulation  of  Governmental      policy  and   its  transmission  into  law  though  the      condition   precedent   to   the   exercise   of   this      responsibility is  its retaining  the confidence of the      legislative branch of the State".      If an  order of  preventive  detention  is  not  quasi- judicial, as  it cannot  be because  of the impossibility or applying any objective      (1) A. I. R 1955 S. C. 549. 362 standards to  the need  for it  in a  particular case, there could  be   no  question   of  violating  any  principle  of separation  of   powers  by   placing  preventive  detention exclusively within  the control  of executive authorities of the State  for the  duration of the Emergency. That seems lo me to    the  effect of  the emer  ency  provisions  of  the Constitution and  the amendments  of the  Act already  dealt with by me.      Commenting upon  Liversidge’s case  (supra) in "The Law Quarterly Review"  (1942) (Vol.  58-p. 2).,  the  celebrated jurist and  authority on  English Constitutional history and law, Sir  William Holdsworth,  supporting majority  decision there, opined:            "The question  turns not, as Lord Atkin says upon      whether  the   common  law   or  the  statute  law  has      postulated a ’reasonable ’ cause  for a  decision or an      action, but  upon  the  question  whether  or  not  the      decision or  the action  to be  taken on  a  reasonable      cause raises  a justifiable issue. Clearly the question      whether a  person is  of hostile origin or associations      so that  it is  necessary to exercise control over him,

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    raises,  not   a  justifiable,,   but  a  political  or      administrative issue". He added            "On principle  this distinction seems to me be he      clearly right.  If the  issue is  justifiable, if, that      is, it  raises an  issue within the legal competence of      the Court  to try,  the Court  can decide  on the facts      proved before  it whether  a cause  or a  suspicion  is      reasonable, for  it knows the law as to what amounts in      the circumstances  to a  cause or  a suspicion which is      reasonable. If,  on the  other hand,  the issue  is not      justifiable, if,  that is, it turns, not on a knowledge      of the law as to what amounts in the circumstances to a      reasonable cause  or suspicion,  but  on  political  or      administrative  considerations        it  can  have  no      knowledge of the weight to be attached to facts adduced      to prove  the reasonableness or unreasonableness of the      cause or  suspicion.. for  it has neither the knowledge      nor the  means of acquiring the know ledge necessary to      adjudicate upon  the weight  to be  attach  ed  to  any      evidence which  might be  given as  to the existence of      circumstances of  suspicion or as to the reasonableness      of belief  Since, therefore,  it is impossible to apply      an objective    standard  through  the  agency  of  the      Courts? the  only possible  standard to  be applied the      subjective standard,  so that  the Secretary of State’s      statement that  he had  a reason  able  cause  for  his      belief must be conclusive".      If the  meaning of  the  emergency  provisions  in  our Constitution and  the provisions  of the Act is clearly that what lies  in the  executive  field,  as  indicated  above., should not  be subjected  to judicial  scrutiny or judged by judicial standards  of correctness,  I am  unable to see how the Courts  can arrogate unto themselves a power of judicial superintendence which  they do not, under the law during the emergency , possess. 363      Dean Roscoe  Pound, in the Green Foundation Lectures on "Justice h  According to  Law" (Yale University Press, 1951) begins his answer to the question as to what justice is by a reference to  the jesting Pilate, who would not stay for the answer because  he knew that philosophers disagreed so much, in  their   answers,  that  there  could  be  no  completely satisfactory answer.  He divides  justice itself  into three heads according  to the three types of bodies or authorities which could  administer it, and discusses the advantages and disadvantages of  each: Legislative, Executive, Judicial. He rejects "Legislative Justice", said to be most responsive to popular will,  as too  "uncertain, unequal, and capricious’. He said  that its  history, even in modern times, was filled with "legislative  lynchings"" and that this kind of justice was  ton   susceptible  to   "the  influence   of   personal solicitation, lobbying, and even corruption", and subject to guests of  passion, prejudice,  and partisanship. He thought that executive  or  administrative  justice,  which  becomes inevitable in carrying out vast schemes of modern socialistic control and  planning of economic, social, and cultural life of the  people by  the  State  was  also,  despite  its  own mechanisms of  control against misuse of power" fraught with serious dangers  indicated by him. Finally, Dean Pound finds judicial justice, though not entirely immune from error-and, sometimes, grievous  and costly  error-to be superior to the other  two   types  of  justice  despite  its  own  inherent shortcomings as  compared with  executive or  administrative justice for special types of cases.

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    Now ,  the question  before us  is not  whether  Courts should apply the high standards of "judicial justice" to the facts of  each individual  case which  are not before us for consideration at  all. The  question before us is purely one of the  interpretation of  laws as  we find  them. If.  on a correct interpretation of the legal provisions, we find that the jurisdiction  of Courts  was itself  meant to be ousted, for the  duration af  the emergency, to scrutinise the facts or reasons  behind detention  orders purporting to have been made under  the Act.  because the  judicial process  suffers from inherent  limitations in  dealing with  cases  of  this type, we  are bound,  by the  canons of  "judicial  justice" itself  to declare that this is what the laws mean.      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 af  the return  itself, it  is demonstrate 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.      A maxim  of justice  is sometimes  said to  be :"Let the heavens fall  but justice  must be  done ".  As  applied  to judicial justice, it means 364 that justice  must accord  with  the  highest  standards  of objective, impartial   ,  unruffled dictates        a  clear judicial conscience  working  "without  t  fear  or  favour, affection or  ill-will". It does not mean that the object of "judicial justice"  is either  to make  the heavens fall’ or that it  should be  oblivious to  consequences  of  judicial verdicts on  the fate of the nation. It fully recognises the legal validity of the principle adopted by the English House of Lords  in both  Sadiq‘s case (supra and Liversidge’s case (supra): "Salus  Populi Est  Supreme Lex"  (regard  for  the public welfare  is the  highest law). This is the very first maxim given  Broom’s Legal Maxim under the first head "Rules founded on public policy" (See Broom’s ’legal Maxims" p. 1).      It is not my object to animadvert here at length on any weakness in  our legal  or judicial system. I would however, like to point out that judicial justice can only be "justice according to  law". It tends more often to accord with legal justice than  moral justice.  Not only  are the fact finding powers of Courts limited by rules of evidence and procedure, but the  process of  fact finding  and adjudication can miss their objects  due to  the buying  power of money over venel witnesses and the capacity of the wealthy to secure the best forensic talents  in the country even if we do not take into account the  liability of  judges. like  the rest  of  human beings, to  err. Ends  of justice  can be  frustrated by all kinds of abuses of the processes of Courts      The machinery  of executive  justice, though  not hide- bound by technical rules of evidence and procedure, can also be and  often is  inordinately dilatory.  Its wheels  can be clogged by  red-tape and  by corrupt  clerical underlings if their palms  are not  greased by honest citizens. Even those

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in the  upper echelons  of the  bureaucracy can be sometimes hopelessly  unable   to  see   the  true   objects   of   an administrative  scheme  or  of  the  policy  embodied  in  a statute. They  tend to  be  more  anxious  to  please  their superiors than  to do  justice  so  that  matters  in  which executive heads  may not  get interested  are liable  to  be neglected for  years and  even forgotten, whereas others, in which they  are interested,  received speedy attention. They are not even aided by lawyers who, whatever else may be said about   them,   have   undoubtedly   imagination,   courage, independence, and  devotion to  their client’s interests. In any  case,   executive  justice   lacks  the  appearance  of detachment. Justifiable  disputes between  the State and the citizen.  On   principles  of   natural   justice?   require independent authorities for their resolution. It is for this reason  that   Article  226   of  the   Constitution  places administrative action  and inaction,  even  at  the  highest levels, under  judicial superintendence, when it impinges on rights of  persons, although  this may  have given  rise  to problems of its own either due to misuse by litigants of the powers of  High Courts under Article 226 of the Constitution or want  of clarify  in the  drafting of our statutes or the difficulties  experienced   by  the  executive  officers  of Government in  understanding the laws or the manner in which their own duties are to be carried out.      Considerations, such  as those mentioned above, arising out of  alleged carelessness  with which,  according to  the learned Counsel  for the  detentes, detentions are sometimes ordered, were placed before us so 365 that we  may not  deny powers  of rectification  of apparent errors of  detaining officers  to High Courts. It was stated by one  learned Counsel  that a  detention  order  was  once issued  against   a  person  who  was  dead.  Obviously,  no detention order  could be executed against a dead person and no writ  petition could be moved on behalf of such a person. I have,  however., no  doubt,  that  the  machinery  of  the preventive detention  is not  so  defective  as  to  prevent executive authorities  at  the  highest  levels  from  doing justice in  appropriate cases  where real  injustice due  to misrepresentations or  mis-apprehensions of  fact is brought to  their.  notice.  Not  only  are  the  highest  executive authorities, under  whose supervision  the administration of preventive detention  laws is expected to take place, better able than  the High  Courts, acting under Article 226 of the Constitution, to go into every question of fact and are in a much better  position to  know all relevant facts, but their knowledge f  the meaning  of laws to be administered and the policies underlying them could not be less, even if they are not better,  known to them than to the High Courts on such a matter as  preventive detention.  As already  indicated,  it raises essentially  matters of  policy. Courts cannot decide what  individuals   with  what   kind  of  associations  and antecedents  should   be  detained.   In  some  cases,,  the associations and  affiliations of individuals with groups or originations may  certainly  be  matters  of  common  public knowledge. But, it is only the membership                and associations of  persons which  may  be  matters  of  public knowledge. The  nature of  information, and  the  manner  in which  individuals   or  organisations   concerned  may   do something, which  may constitute a danger to the security of the State,  are matters  of appraisement  of situations  and policies  on   which  information  could  certainly  not  be broadcast.      I, therefore, think that a challenge to the validity of

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Section 16A(9)  based either  on the submission that grounds for detention  do not call for secrecy or that the provision is an  unwarranted invasion  of judicial  power, even  in an emergency, is  not well-founded.  I will  indicate below the safeguards which  exist in  the  Act  itself  for  obtaining redress on  the  executive  side  in  cases‘  of  preventive detention. As  was held  by this Court in Ram Jawaya Kapur’s case (supra),  there is  no such strict separation of powers under  our   Constitution  as  one  finds  in  the  American Constitution. No  particular provision  of the  Constitution could be  pointed out  in support  of the  proposition  that preventive  detention   is  a   matter  in   which  judicial superintendence must  necessarily be  preserved as a part of the doctrine of separation of powers.      Section 3.  sub. sec.  3 of  the  Act  shows  that  the detaining officer has to submit a report forthwith on a case of preventive  detention, to ether with grounds of detention and particulars  of the  case, for the approval of the State Government. The  detention order  itself unless  approved by the State Government, lapses automatically after 12 days. In special cases,  covered by Section 8 of the Act, the proviso to Section  3, sub. sec. 3, makes the initial order, subject to the  approval of  the State  Government" operative for 22 days. In cases covered by Section 16A(2) and (3) of the Act, in which  no grounds  of detention are to be supplied to the detenu, the  State Government  has to review and confirm the order if the detention is to continue beyond 15 days. 366 Section 14  of the  Act provides for revocation of detention orders without  prejudice to the provisions of Section 21 of the General  Clauses Act,  1897. The power of revocation may be exercised  not only  by the  detaining officer concerned, but by  the State Government or the Central Government  also Temporary release  of persons  detained is also provided for by Section  15 of  the Act  on the  order of the appropriate Government as  to prevent undue hardship and to Meet special con contingencies.  The provisions  of Article 353(a) of the Constitution also  the Union  Government to issue directions to a  State Government  relating to  the manner  in which  a State’s executive  power  is  to  be  exercised  during  the Emergency. Means  of redress,  in cases  such  as  those  of mistaken identity  or misapprehension of facts or detentions due to  false and  malicious reports  circulated by enemies, are thus  still open  to a  detenu by  approaching executive authorities. There  is no  bar against  that.  What  is  not possible is  to secure  a release  by an order of a Court in Heabeas Corpus  proceedings after  taking the Court behind a duly authenticated prima facie good return.      An argument  before us,  to which  would like to advert here, was  that, notwithstanding  the emergency provisions., some undefined  or even  defined principles  of Rule of Law, outside the  emergency provisions,    can be enforced by the High Courts in exercise of their powers under Article 226 of the Constitution  because the  Rule of  Law has been held by this Court  to be a part of the inviolable ’basic structure" of the  Constitution. It  was submitted  that, as this basic structure was  outside even  the powers  of amendment of the Constitution under Article 368 of the Constitution, it could not be  affected by emergency provisions or by provisions of the Act.  We were  asked to  atleast interpret the emergency provisions and  the Act  in such  a way  as to preserve what was‘represented to  be the  "Rule of  Law" as  a part of the basic structure of the Constitution.      It seems  to me  that the theory of a "basic structure" of the  Constitution  cannot  be  used  to  build  into  the

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Constitution an imaginary part which may be in conflict with Constitutional provisions.  The Constitution  cannot have  a base cut away from the super-structure. Indeed, as explained above, it  seems to  me that  the emergency provisions could themselves be regarded as part of the basic structure of the Constitution. At  any rate,  they are meant to safeguard the basis of all orderly Government according to law.      Speaking for myself, I do not look upon the theory of a basic structure  of the constitution an anything more than a part of a well recognised mode of construing a document. The constitution, like  any other  document, has  to be read and construed as  a whole.    This is the common principle which was applied,  though in  different ways  and with  differing results, both  by Judges  taking the  majority as  well   as minority views in Kesavananda Bharti‘s case (supra). Some of the learned  Judges thought  that, by an application of this rule, the  scope of  the power  of amendment,  contained  in Article 368  of the  Constitution   , was limited by certain principles which,  though not expressly laid down in Article 368, could  be read  into the  word "amendment"  as  implied limitations upon powers under Article 368. On the other 367 hand other  learned Judges  (including myself) took the view that, considering  the provisions  of the  Constitution as a whole, the  powers  of  amendment  of  the  Constitution  in Article 368, which operated on all parts of the Constitution itself and  embraced even  the power of amending Article 368 of the Constitution, could not reasonably be so limited. The theory,  therefore,  was  nothing  more  than  a  method  of determining the intent behind the constitutional provisions. It could  not and  did not  build and  add a new part to the Constitution      It was then urged that want of bona fides was expressly left open  for determination  by Courts even in an emergency in Liversidge‘s  s case.  It must not, however, be forgotten that Liversidge‘s  case was  not a  decision upon  a  habeas corpus proceeding,  but, it came to the House of Lords at an interlocutory  stage   of  a  suit  for  damages  for  false imprisonment  when   Liversidge   was   denied   access   to particulars  of  grounds  of  his  detention.  The  question considered there  was whether  he could  ask for  them as  a matter of right. The House of Lords denied him that right.      In  Greene’s   case  (supra)"   which  was  heard  with Liversidge’s  case  (supra)  by  the  House  of  Lords,  the decision was that the return made on behalf of the Secretary of State  could not  be questioned.  It is true that even in Greene’s case  (supra), a  theoretical  exception  was  made for a  case of  want of  bona fides. I call it "theoretical" because    such a case is perhaps not, easily conceivable in England. It  also requires some explanation as to what could be meant  by holding  that a return is "conclusive", but the bona fides  of the  order can be challenged. The explanation seems to  me to  be that  want of  bona fides  or "malice in fact" was  placed  on  the  same  footing  as  fraud,  which nullifies and  invalidates the  most solemn  proceedings. It may, however, be pointed out that, in Greene‘s case (supra), it was  not held  that mala  fides or any other invalidating fact could  be proved  during the emergency in habeas corpus proceedings. An  explanation of  an almost  formal exception for a  case  of  want  of  bona  fides  could  be  that  the reservation  of   such  a  plea  was  meant  only  for  such proceedings in  which "malice  in fact"  could reasonably be gone into  and adjudicated  upon. The  position  before  us, however., is  very clear. Section 16A(9) imposes a bar which cannot  be   overcome  in   Habeas  Corpus  proceedings.  In

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addition, a  specific suspension or enforcement of the right of personal freedom against executive authorities places the presumption arising  from a  duly authenticated  order of  a legally authorised  detaining officer  on a  higher  footing than a  merely ordinary  rebuttable presumption for purposes of proceedings  under Article 226 of the Constitution. These are, as already indicated summary proceedings.      I may point out here that the term "mala fide" is often very loosely  used. Even  in England, the scope of malice is wide enough  to include  both "malice in law" and "malice in fact". Lord Haldane in Shearer v. Shields,(1) said:          "Between ’malice in fact’ and ’malice in law’ there      is a  broad distinction  which is  not peculiar  to any      system of  jurisprudence. The  person  who  inflicts  a      wrong or  an injury upon any person in contravention of      the law is not allowed      (1) [1914] A.C. 808. 368      to say  that he  did so  with an  innocent mind.  He is      taken to  know the law and can only act within the law.      He may,  therefore,  be  guilty  of  ’malice  in  law’,      although. so far as the state of his mind was concerned      he acted  ignorantly, and  in  that  sense  innocently.      ’Malice in  fact’ is  a different  thing. It  means  an      actual malicious  intention on  the part  of the Person      who has done the wrongful act".      Now, applying  the broad  concepts of "malice in law‘’, as stated  t above,  it has  often been argued before us, in cases of  preventive detention,  that the burden is upon the executive authorities of proving   the strict  legality  and correctness of  every step  in the  procedure adopt  ed in a case of  deprivation  of  personal  liberty.  To  ask    the executive authorities  to satisfy  such  a  requirements  in accordance with  what  has  been  called  the  principle  in Eshuqbayi Eleko’s  case (supra))  would be in my opinion, to nullify the  effect of  the suspension of the enforceability of the  procedural  protection  to  the  right  of  personal freedom. To  do so  is really to make the Presidential order under  Article   359(1)  of  the  Constitution  ineffective. Therefore, no  question of  "malice in  law’  can  arise  in Habeas  Corpus   proceedings  when   such  a  protection  is suspended. 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 suit the object of which is not be 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 by detaining officers.      Mr.  Mayakrishnan,  learned  Counsel  for  one  of  the detenus, con  tended that state of emergency, resulting from the Presidential order of 27th June, 1975, cannot be equated with a  situation in  which Martial Law has been proclaimed. The argument  seems to be that if the jurisdiction of Courts to enforce the right ht to personal freedom is affected, the resulting position  would be  no different  from that  which prevails when Martial Law is declared.      There  is  no  provision  in  our  Constitution  for  a declaration of  Martial Law. Nevertheless, Article 34 of the Constitution recognises  the possibility  of Martial  Law in this country. It provided:            "34 notwithstanding  anything  in  the  foregoing      provisions  of   this  Part,   Parliament  may  by  law      indemnify any  person in the service of the Union or of

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    a State  or any  other t  person in  respect of any act      done by  him in  connection  with  the  maintenance  or      restoration of  order in  any area within the territory      of India where martial law was in force or validate any      sentence  passed,   punishment  inflicted,   forfeiture      ordered or  other act  done under  martial law  in such      area?’      As there  is no separate indication in the Constitution of conditions in which Martial Law could be "proclaimed", it could be urged that a Presidential order under Article 359(1) has a similar effect and 369 was intended  to provide for situations in which Martial Law may have  to be  declared in any part of the country. But, a Presidential order  under Article 339(1) of the Constitution would, ordinarily,  have a wider range and effect throughout the country  than  the  existence  of  Martial  Law  in  any particular   part   of   the   country.   The   Presidential Proclamations are  meant generally to cover the country as a whole. "Martial  Law" is  generalIy of  a locally restricted application. Another  difference is that conditions in which what is  called "Martial  Law" may  prevail result in taking over by Military Courts of powers even to try offences; and, the ordinary  or civil  Courts will  not interfere with this special jurisdiction  under extraordinary conditions. Such a taking over  by Military  Courts is  certainly  outside  the provisions of  Article 359(1)  of the  Constitution taken by itself. lt  could perhaps  fall  under  Presidential  powers under Articles  53 and  73 read  with Article  355.  Article 53(2) lays down:           "53 (2) Without prejudice to the generality of the      foregoing provision  the supreme command of the Defence      Forces of  the Union  shall be  vested in the President      and the exercise thereof shall be regulated by law".      And, Article 355 provides:           "355. It shall be the duty of the Union to protect      every State  against external  aggression and  internal      disturbance and  to ensure that the government of every      State is  carried on  in accordance with the provisions      of this Constitution." A similarity  in results  however between  Martial  Law  and conditions,  resulting   from  a  Presidential  order  under Article 359(1) is that, if no provision is made by an Act of Indemnity  the   civil  liabilities  of  military  or  civil officers, acting  mala fide  and outside  the law,  are  not removed ipso facto by either Martial Law or the Proclamation of Emergency.      In Halsbury’s  Laws of  England (4th  Edn. vol. 8, para 982, page  625), an  explanation of  Martial Law,  as it  is known in British Constitutional Law, is given as follows:           "The Crown  may not  issue commissions  in time of      peace to try civilians by martial law; but when a state      of actual  war, or  of insurrection,  riot or rebellion      amounting to war exists, the Crown and its officers may      use the  amount of force necessary in the circumstances      to restore order. This use or force is sometimes termed      "martial law".  When once  a state of actual war exists      the civil  courts have no authority to call in question      the actions  of the military authorities, but it is for      the civil  courts to  decide, if  their jurisdiction is      invoked, whether  a state of war exists which justifies      the application  of martial  law. The  powers. such  as      they are,  of the  military authorities cease and those      of  the  civil  courts  resumed  ipso  facto  with  the      termination of  the State of war. and in the absence of

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    an act  of Indemnity, the civil courts may inquire into      the 24-833SCI\76 370      legality of  anything done  during the  state  of  war.      Even if  there is  an Act  of Indemnity  couched in the      usual terms,  malicious acts  will  not  be  protected.      Whether this  power of  using extraordinary measures is      really a  prerogative of  the Crow,  or whether  it  is      merely an  example of  the common law right and duty of      all, ruler  and subject  alike, to  use the  amount  of      force necessary to suppress disorder, is not quite free      from  doubt.  it  is,  however,  clear  that  so-called      military courts set up under martial law are not really      courts at  all, and So an order of prohibition will not      issue to  rest rain  them. Probably the correct view to      take of’  martial law  itself is  that it  is no law at      all.      It is  not at  all necessary  for the  purposes of  the decision of  cases before  us to determine how proclamations of emergency  are related  to the more drastic conditions in which "Martial  Law" if  it is  "law"  at all, may come into existence due  to the very necessities of a situation. It is evident that  the emergency  provisions of  our Constitution arc very comprehensive. They are intended not merely to deal with situations  when actual  out-break of  hostilities with another country  try has  taken place  and a war is going on but also when the country’s   peace, progress, security  and independence are  threatened by  dangers either  internal or external or  both. Whether  there is  a  "grave  emergency", falling within  Article 352(1), is a matter entirely for the President to determine.      Attempts were  made by  some learned  Counsel to  paint very gloomy  pictures of possible consequences if this Court held  that   no  relief  was  open  to  petitioners  against deprivation of their personal freedoms by executive officers in an  emergency of  indefinite duration,  when a  number of cases of  serious misuse  of their  powers by  the detaining officers were said to be in evidence. I do not think that it is either  responsible advocacy  or the  performance of  any patriotic  or   public  duty   to  suggest  that  powers  of preventive  detention  are  being  misused  in  the  current emergency when  our attention  could not  be  drawn  to  the allegations in  a single case even by way of illustration of the alleged  misuse  instead  of  drawing  upon  one  s  own imagination      to conjure up  phantoms. In  fact, I  asked some learned  Counsel to  indicate the  alleged facts of any particular case before us to enable us to appreciate how the power of  preventive detention had been misused. Mostly, the answers given  were that  the facts  of the  cases were  not before  us   at  this  stage  which  is  true.  But,  it  is significant that  no case  of alleged "malice in fact" could be even brought to our notice.      It seems  to me  that Courts  can  safely  act  on  the presumption that  powers of  preventive  detention  are  not being abused.  The theory that preventive detention serves a psycho-therapeutic purpose  may not  be  correct.  But,  the Constitutional duty  of every  Govt. faced  with threats  of wide-spread disorder  and chaos  to meet it with appropriate steps cannot be denied. And, if one can refer to a matter of common knowledge, appearing from newspaper reports, a number of detenus  arrested last  year have  already been released. This shows  that  whole situation  is periodically reviewed. Furthermore, we under- 371

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stand that  the care  and  concern  bestowed  by  the  State authorities   upon the  welfare  of  detenus  who  are  well housed, well fed, and well treated. is almost maternal. Even parents have  to take  appropriate preventive action against those children  who May threaten to burn down the house they live in.      If there  are, under  our  Constitution,  some  supreme obligations  or  overriding  powers  or  duties,  vested  in superior Court-s,  as learned Counsel for the detenus seemed to  be   contending  for,   to   enforce   the   claims   of constitutionality, quite apart from the suspended powers and duties of  Courts to  enforce  fundamental rights, I am sure that the  current emergency, justified not only by the rapid improvement. due  to it in the seriously dislocated national economy and  discipline but  also by  the rapid  dangers  of tomorrow, apparent  to those  who have the eyes to see them, averted by  it, could  not possibly provide the occasion for the discharge  of such obligations towards the nation or the exercise of such powers, if any, in the Courts set up by the Constitution. Where  there are  such great  obligations  and powers they  must always  be guided by the principle already indicated: "Sauls  Populi Est  Suprema Lex".  Indeed,  as  I understand  even  the  majority  view  in  Golaknath‘s  case (supra),  it   was   that,   despite   the   invalidity   of constitutional   amendments    of   provisions    containing fundamental 1)  rights, to  give effect to the view would be contrary to  this principle. The case for the detenus before us, however, fails on preliminary hurdles. Despite strenuous efforts, their learned Counsel were quite unable to show any constitutional invalidity, directly or indirectly, in any of the measures  taken, whether legislative or executive, by or on behalf of the State.      The real  question for determination by us relates only to  the   meaning  and  effect  of  the  Constitutional  and statutory provisions  indicated above  which are  applicable during the  current  Emergency.  A  large  number  of  other questions including  even some quite remotely connected with the real question involved, were permitted      Court to  be argued because  of the  great concern  and anxiety  of  this Court when problems relating to personal liberty are raised. On the  interpretation of the relevant provisions adopted by me, the validity of detention orders purporting to be passed under  the  Act  cannot.  be  challenged  in  Habeas  Corpus proceedings. Judicial  proceedings in  criminal Courts,  not meant for  the enforcement  of fundamental  rights, are not, either at  the initial  or appellate  or revisional  stages, covered by  the Presidential  order of  1975. Habeas  Corpus petitions are  not maintainable  in such  cases  on  another ground. It  is that  the prisoner  is deemed to be in proper custody under orders of a Court.      My answer to the two questions set out in the beginning of this  judgment   which  I  compressed  into  one,  is  as follows:      A prima  facie valid  detention order,  that is to say, one duly  authenticated and  passed by an officer authorised to make  it, recording  purported satisfaction to detain the petitioner under  the maintenance  of Internal Security Act, which is  operative either  before or after its confirmation by the  Government, is a complete answer to a petition for a writ of Habeas Corpus. Once such an order is shown 372 to exist  in response  to a  notice for  a  writ  of  Habeas Corpus, the  High Court  cannot inquire into its validity or vires on  the ground  of either mala fides of any kind or of non-compliance with  any provision  of  the  Maintenance  of

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Internal Security  Act in  Habeas  Corpus  proceedings.  The preliminary objection  of the State must be accepted in such a case.      The result  is that  the appeals  before us are allowed and the judgment and order of the High Court in each case is set aside.  The High Court concerned will itself now pass an order on  each petition  in accordance with law as laid down by this  Court and  the provisions  of Article 359(1) of the Constitution.      CHANDRACHUD,  J.  During,  the  last  few  years,  many questions of  far-reaching  constitutional  importance  have engaged the  attention of  this  Court  but  these  appeals, perhaps, present  problems of  the gravest  magnitude.  They involve    an    adjustment    between    two    conflicting considerations, the  liberty of  the individual  on one hand and exigencies  of the State on the other. This balancing of the most  precious of  human freedoms  the  liberty  of  the subject as  against  the  most  imperative  of  the  State’s obligations the  security of  the State gives rise to multi- dimensional problems  quite beyond  the scope and compass of each right  considered separately  and in isolation. Can the freedom of  the individual be subordinated to the exigencies of the  State and  if so,  to what extent ? The Constitution concedes to the Executive the power of Preventive detention, but in  the  name  of      national  security      can  that jurisdiction of  suspicion be  so exercised as to reduce the guarantee of  personal liberty  to a  mere husk  ? Detention without trial is a serious inroad on personal freedom but it bears the  sanction of  our  Constitution.  The  Constituent Assembly composed  of politicians.  statesmen,  lawyers  and social workers  who had  attained a  high  status  in  their respective specialities and many of whom had experienced the travails of  incarceration owing  solely to  their political beliefs resolved  to put Article 22, clauses (3) to (7) into the Construction.  may be as a necessary evil. But does that mean that,  more as  a rule than as an exception, any person can be  detained without disclosing the grounds of detention to him  or to  the Court which may be called upon to try his Habeas Corpus  petition ?  And  can  such  grounds  and  the information on  which the  grounds are  based be deemed by a rule of  evidence to  relate to  the affairs  of the  State, therefore, confidential  , and therefore privileged ? Blind, unquestioning obedience  does not  flourish on English soil, said Lord  Simonds in  Christie v.  Leachinsky(1).  Will  it flourish one  Indian soil  ? These broadly are the sensitive questions for  decision and  importantly, they  arise in the wake of Proclamations of Emergency issued by the President.      Part  XVIII  of  the  Constitution,  called  "Emergency provisions", consists of Articles 352 to 360. Article 352(1) provides that  if the  President is  satisfied that  a grave emergency exists whereby the secu-      (1) [1947] A. C. 573. 591. 373 rity of  India or  of any  part of  the territory thereof is threatened,  whether   by  war  or  external  aggression  or internal  disturbance,  he  may,  by  Proclamation,  make  a declaration to  that effect.  A  Proclamation  issued  under clause (1)  is required  by clause (2) (b) to be laid before each House  of Parliament and by reason of clause (2) (c) it ceases to  operate at  the expiration  of two  months unless before the expiration of that period it has been approved by resolutions of  both Houses  of Parliament. By clause (3) of Article 352,  a Proclamation of Emergency may be made before the actual  occurrence of  war or  of external aggression or internal disturbance,  if the  President is  satisfied  that

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there is  imminent danger  thereof. Clause (5) (a) makes the satisfaction of  the President  under clauses  (1)  and  (3) final, conclusive  and non-justiciable.  By clause  (5) (b), neither  the   Supreme  Court   nor  any   other  court  has jurisdiction, subject  to the  provisions of  clause (2), to entertain any  question on any ground regarding the validity of a  proclamation issued  under clause (1) or the continued operation thereof.      Article 358 provides that:          "While a Proclamation of emergency is in operation,      nothing in  Article 19  shall restrict the power of the      State as defined in Part III to make any law or to take      any executive  action which the State would but for the      provisions contained  in that Part be competent to make      or to take, but any law so made shall, to the extent of      the incompetency,  cease to  have effect as soon as the      Proclamation ceases  to  operate,  except  as  respects      things done  or omitted  to be  done before  the law so      ceases to have effect."      Article  359(1)   empowers  the   President,  while   a Proclamation of  emergency is  in operation  to  declare  by order that:          "...the right to move any court for the enforcement      of such  of the  rights conferred by Part III as may be      mentioned in  the order  and all proceedings pending in      any  court   for  the  enforcement  of  the  rights  so      mentioned shall  remain suspended for the period during      which the  Proclamation is in force or for such shorter      period as may be specified in the order." Clause (1A),  which was  inserted retrospectively in Article 359 by   section 7 of the Thirty-eighth Amendment Act, 1975, provides:            "While an  order made under clause (1) mentioning      any  of   the  rights  conferred  by  Part  III  is  in      operation, nothing in that Part conferring those rights      shall restrict the power of the State as defined in the      said Part  to make  any law  or to  take any  executive      action which  the State  would but  for the  provisions      contained in that Part be competent to make or to take,      but any  law so  made  shall,  to  the  extent  of  the      incompetency, cease to have effect as soon as the order      aforesaid    ceases  to  operate,  except  as  respects      things done  or omitted  to be  done before  the law so      ceases to have effect." 374 Clause (3)  of Article  359 requires  that every  order made under clause  (1) shall, as soon as may be after it is made, be laid before each house of Parliament.      Article 352  was resorted  to for  the first  time when hostilities broke  out with  China. On  October 26, 1962 the President issued  a  Proclamation  declaring  that  a  grave emergency  existed   whereby  the   security  of  India  was threatened by  external aggression.  This  proclamation  was immediately followed by the defence of India ordinance, 4 of 1962, which  was later replaced by the Defence of India Act, 1962. on November3, 1962 the President issued an order under Article 359(1)  of the Constitution, which was later amended by an order dated November I 1, 1962 stating that:           "the right of any person to move any court for the      enforcement of  the rights  conferred  by  Article  14,      Article 21  and Article  22 of  the Constitution  shall      remain  suspended  for  the  period  during  which  the      proclamation of  emergency issued  under clause  (1) of      Article 352  thereof on  the 26th  October, 1962, is in      force, if  such person  has been  deprived of  any such

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    rights under the Defence of India ordinance, 1962 (4 of      1962) or  any rule  or order  made  thereunder(Emphasis      supplied). Article 14 was added to the order of November 3, 1962 by the amendment dated November 11, 1962. The emergency declared on October 26, 1962 was revoked by a Proclamation dated January 10, 1968 issued under Article 352(2)(a) of the Constitution.      The Defence  of India  Act, 1962 was to remain in force during the  period  of  operation  of  the  Proclamation  of Emergency issued on October 26, 1962 and for a period of six months thereafter      . The Act of 1962 expired on July 10, 1968.      The maintenance  of Internal  Security Act, 26 of 1971, (MISA)  was brought into force on July 2, 1971 in the shadow of hostilities  with Pakistan.  Section  3(1)  of  that  Act provides as follows:          "3.(1)     The  Central  Government  or  the  State                     Government may,-           (a)  if  satisfied  with  respect  to  any  person                (including a  foreigner) that  with a view to                preventing him  from  acting  in  any  manner                prejudicial to-                (1)  the defence  of India,  the relations of                     India  with   foreign  powers,   or  the                     security of India, or                (ii) the  security   of  the   State  or  the                     maintenance of public order, or                (iii)the maintenance of supplies and services                     essential ll to the community, or           (b)  if satisfied  with respect  to any  foreigner                that with a view 2to regulating his continued                presence in India or 375                With a  view to  making arrangements  for his                expulsion from India.      It is  necessary so  to do make an order directing that      such person be detained."      Section   8 of  the Act  requires that  the grounds  on which the  order of  detention is made shall be communicated to the detenu within a certain period but that the authority making the  order may  not disclose facts which it considers to be against the public interest to disclose      Consequent on  the Pakistani  aggression, the President issued a  Proclamation of  Emergency on  December 3, 1971 on the ground  that the  security of  India was  threatened  by external aggression.  By on.  Order dated  December S,  1971 issued under  Article 359(1)  of the Constitution, the right of ’foreigners’  to move  any court for the enforcement   of rights conferred by Articles 14, 21 and 22 was suspended.      In September  1974 the  MISA was  amended by  ordinance 11 of  1974 to  include sub-section  (c) in section 3(1), by which the right to detain was given as against smugglers and offenders under  the Foreign  Exchange Regulation Act, 1947. On November  16, 1974  the President  issued  a  Declaration under  Article   359(1)  suspending  the  right  of  persons detained under  section 3  (1) (c)  of the  MISA lo move for enforcement of  tile rights conferred by Article 14, Article 21 and  clauses (4),  (5), (6)  and (7) of Article 22 of the Constitution      On June  25, 1975  the President  issued a Proclamation under  Article  352(1)  declaring  that  a  grave  emergency existed whereby  the security  of India  was  threatened  by internal disturbance.  On June 27, 1975 The President issued an order under Article 359(1) which reads as follows:           "G.S.R. 361 (E)-In exercise of powers conferred by

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    clause (1)  of Article  359 of  the  Constitution,  the      President hereby  declares that the right of any person      (including a  foreigner) to  move  any  court  for  the      enforcement of  the rights  conferred  by  Article  14,      Article 21  and Article  22 of the Constitution and all      proceedings pending in any court for the enforcement of      the above  mentioned rights  shall remain suspended for      the period during which the proclamation   of emergency      made  under   clause  (1)   of  Article   352  of   the      Constitution on  the 3rd December, 1971 and on the 25th      of June, 1975 are both in force.      The order shall extend to the whole of the territory of India.            This order  shall be  in addition  to and  not in      derogation of  any order  made before  the date cf this      order  under   Clause  (1)   of  Article   359  of  the      Constitution."      Various persons detained under section 3(1) of the MISA filed petitions  in different  High Courts  for the issue of the writ of Habeas  Groups. When those petitions can. up for hearing, the Government 376 raised a  preliminary objection  to their maintainability on the ground  that in  asking for release by the issuance of a writ  of  habeas  corpus,  the  detenus  were  in  substance claiming that  they had  been  deprived  of  their  personal liberty in  violation of  the procedure  established by law, which plea  was available  to them  under Article  21  f  he Constitution only.  The right to move for enforcement of the right conferred by that Article having been suspended by the Presidential  order  dated  June  27,  1975  the  petitions, according to  the Government, were liable to be dismissed at the threshold.  The preliminary  objection has been rejected for one  reason or  another by the High Courts of Allahabad, Bombay,  Delhi,   Karnataka,  Madhya   Pradesh,  Punjab  and Rajasthan. Broadly,  these High  Courts have  taken the view that despite  the Presidential  order  it  is  open  to  the detenus to  challenge their  detention on the ground that it is ultra  vires, as  for example,. by showing that the order on the face of it is passed by an authority not empowered to pass it,  or it  is in  excess of the power delegated to the authority, or  that the power has been exercised in breach 0 the conditions  prescribed in  that behalf  by the Act under which the  order is  passed, or  that the  order is  not  in strict conformity  with the  provision of  the Act.  Some of these High  Courts have  further held  that the  detenus can attack the  order of  detention on  the grounded  that it is malafide, as  for example,  by showing  that  the  detaining authority  did   not  apply   its  mind   to  the   relevant considerations, or  that the  authority  was  influenced  by irrelevant  considerations,   or  that   the  authority  was actuated by improper motives. Being aggrieved by the finding recorded by these High   Courts on the preliminary point the State Governments  and the  Government of  India have  filed these appeals,  some under  certificates granted by the High Courts and  some by special leave granted by this Court. The High Courts of Andhra Pradesh, Kerala and Madras have upheld the preliminary objection.      During the  pendency of  these appeals  and   while the hearing was in Progress, the President issued an order dated January 8,  1976 under  Article 359(1)  declaring  that  the right to  move any  court for  the enforcement of the rights conferred by  Article 19  and the proceedings pending in any court for  the enforcement  of those  rights shall suspended during the operation of the Proclamations of Emergency dated

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December 3, 1971 and June 25, 1975.      On behalf of the appellants, the appeals were argued by the learned  Attorney-General  and  the  learned  Additional Solicitor-General. The  learned Advocates-General of various States argued  in support  of their contentions. A string of counsel appeared  on behalf of the respondents, amongst them being Shri  Shanti Bhushan,  Shri V. M. Tarkunde, Shri R. B. Jethmalani, Shri  S. J.  Sorabji, Shri A. B. Dewan,  Shri C. K. Daphtary,  Dr. N.  M. Ghatate,  Shri G.  C. Dwivedi. Shri Santokh Singh,  Shri Sharad  Manohar, Shri Daniel Latifi and Shri Mayakrishnan.  The learned  Advocate-General of Gujarat generally supported their submissions.      The learned  Attorney-General contended that Article 21 is the  sole repository  of the  right to  life and personal liberty  and  if  the  right  to  move  any  court  for  the enforcement of that right is suspended by 377 the Presidential  order issued  under  Article  359(1),  the detenus have  no locus standi to file the writ petitions and therefore these  petitions must  be  dismissed  without  any further inquiry  into the relevance of the material on which the grounds  of detention  are based or the relevance of the grounds or the bona fides of the detaining authority. If the MISA  permits  the  non-disclosure  of  grounds  and  indeed prevents their disclosure, there is no question of inquiring into the  reasons or  grounds of  detention and  courts must accept at  its face value the subjective satisfaction of the detaining authority  has recorded in the order of detention. "There is  no half-way house" asserted the Attorney-General. But, not  inconsistently with  the basic submission that the detenus have  no locus  standi to  file  the  petitions  for habeas corpus,  he conceded  that the court may grant relief if the  detention order  is on  the face  of it  bad, as for example, if  it is passed by a person not authorised to pass it, or if it is passed for a purpose outside those mentioned in section  3(1) of  the MISA  or if  it does  not bear  any signature at all.      The  learned   Additional  Solicitor-General  indicated during the  course of  his argument  the limits  of judicial review  in  the  event  of  the  court  rejecting  the  main submission  of   the  Attorney-General.  He  contended  that section 16A(9)  of MISA contains but a rule of evidence  and is therefore  not open  to attack  on  the  ground  that  it encroaches upon  the jurisdiction  of the  High Court  under Article 226 of the Constitution. Since section 16A(9) is not unconstitutional, no  court can  ask for  the prosecution of the file  relating to a detente or ask for the disclosure of the grounds of detention. If such disclosure is not made, no adverse inference can be raised by holding that by reason of non-disclosure,  the  detenu  case  stands  unrebutted.  The learned Additional  Solicitor-General contended  that  there was no  warrant for  reading down  section 16A(9)  so as  to permit disclosure  to the  court to  the  exclusion  of  the petition and  if any  inquiry is  permissible at  all into a habeas corpus  petition, the  inquiry must be limited to the following points:  (1) Whether the order is made in exercise or purported  exercise of  power conferred by a law; (ii) If such law  was pre-emergency  law, is  it a  valid law; (iii) whether  the  authority  which  passed  the  order  is  duly empowered to  do so  by the  law. (iv)  Whether  the  person sought to  be detained  is the  person named in the order of detention; (v)  Whether the  stated purpose of the detention is one  that comes  within the law; (vi) Have the procedural safeguards enacted by the law been followed; and (vii) Where grounds are  furnished (i.e.  when 16-A  does not  apply) do

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such  grounds  ex-facie  justify  the  apprehension  of  the detaining authority  or is  it vitiated  by a  logical  non- sequitur  ?  Such  an  inquiry,  according  to  the  learned counsel, can  never extend  to an objective appraisal of the material and  the information for the purpose of testing the validity of  the subjective  satisfaction of  the  detaining authority.      The arguments  advanced on  behalf of  the  respondents covered a evidence   but they may be summarized thus: H      1.   The object  of Article 359(1) and the effect of an           order issued  under it  is  to  remove  restraints           against the 378           Legislature so  that during  the emergency,  it is           free to  make laws in violation of the fundamental           rights mentioned in the Presidential   order.      2.   Under a Constitution which divides State functions           into  Executive,  Legislative  and  Judicial,  the           executive    functions    must    be    discharged           consistently with  the valid    laws passed by the           Legislature and  the orders  and decrees passed by           the Judiciary.  The suspension  of  the  right  to           enforce fundamental rights cannot confer any right           on the  Executive to  flout the law by which it is           bound as  much in   times of emergency as in times           of peace.  Since there  is a  valid law regulating           preventive  detention,  namely,  the  MISA,  every           order of  detention passed  by the  Executive must           confconfirm to  the conditions  prescribed by that           law.      3.   Article 359(1)  may remove fetters imposed by Part           Ill but  it cannot  remove those  arising from the           principle or  rule of law or from The principle of           the limited  power  of  the  Executive  under  the           system of  checks and balances based on separation           of powers  .      4.   The obligation  cast on  the Executive  to act  in           accordance    with the law does not arise from any           particular Article  of the  Constitution but  from           the  inherent  com  compulsion  arising  from  the           principle of  rule  of  law  which  is  a  central           feature      our constitutional  system and   is a           basic feature  of the Constitution. The suspension           of the  right  to  enforce  Article  21  does  not           automatically entail the suspension of the rule of           law. Even during emergency, the rule of law is not           and cannot be suspended.      5.   The Presidential order under Article 359(1)may bar           the enforcement of fundamental rights mentioned in           the order  by a  petition under  Article 32 before           the Supreme  Court. But,  the  Presidential  order           cannot bar  the enforcement  of rights  other than           fundamental  rights  by  a  petition  filed  under           Article 226 in the High Court.      6.   Common law  rights as  well as statutory rights to           personal liberty  can  be  enforced  through  writ           petitions filed  under Article  226,  despite  the           Presidential order  issued under  Article  359(1).           Similarly, contractual  rights, natural rights and           non-fundamental constitutional  rights like  those           under  Articles   256,  265   and  361(3)  of  the           Constitution, can  be enforced  under Article 226.           Article 226  empowers the  High  Courts  to  issue           writs  and   directions  for  the  enforcement  of           fundamental rights" "and for any other purpose".

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    7.   The essence  of the  inquiry in  a  Habeas  Corpus           petition ;9  whether the detention is justified by           law or is ultra 379           vires the  law. Such an inquiry is not shut out by           the suspension of the right to enforce fundamental           rights.      8.   If the Presidential order is construed as a bar to           the maintainability  of the  writ petitions  under           Article 226  of  the  Constitution,  that  Article           shall have  bee amended without a proper and valid           constitutional amendment.      9.   Article 21  of the  Constitution is  not the  sole           repository  of  the  right  to  life  or  personal           liberty. There is no authority for the proposition           that on  the conferment  of fundamental  rights by           Part III,  the corresponding,  pre-existing rights           merged with  the fundamental  rights and that with           the  suspension   of  fundamental  rights,  the  c           corresponding  pre-existing  rights      also  got           suspended.      10.  Suspension of  the right  to  enforce  Article  21           cannot put  a citizen  in a worse position than in           the  pre-constitution         period.   The   pre-           Constitution right  of liberty  was a right in rem           and was totally dissimilar from the one created by           Article  21.   ’The  pre-constitution  rights  was           merely a  right not to be detained, save under the           authority of law.      11.  Civil  liberty   or  personal  liberty  is  not  a           conglomeration  of   positive  rights.   It  is  a           negative concept and   constitutes an area of free           action because  no law  exists  curtailing  it  or           authorising its curtailment.      12.  Section 16A(9)  of the MISA is unconstitutional as           it encroaches  upon the  High Courts’ powers under           Article 226  of the  Constitution  by  creating  a           presumption that the grounds on which the order of           detention is made and any information or materials           on which the grounds are based shall be treated as           confidential and  shall  be  deemed  to  refer  to           matters of  State, so  that it will be against the           public interest to disclose the same.      13.  Section 18  of MISA  as amended  by Act 39 of 1975           which came  into force  with effect  from June 25,           1975 cannot  affect  the  maintainability  of  the           present petitions  which  were  filed  before  the           Amendment.      14.  The dismissal of writ petitions on the around that           such  petitions   are  barred  by  reason  of  the           Presidential order  issued  under  Article  359(1)           would necessarily  mean that  during the emergency           no person  has  any  right  to  life  or  personal           liberty; and      15.  If the  detenus  are  denied  any  forum  for  the           redress of  their grievances,  it would be open to           the Executive  to whip  the detenus to start them,           to keep  them in  solitary confinement and even to           shoot  them, which would 380           be a  startling state  of  affairs  in  a  country           governed by  a written Constitution having in it a           chapter    on Fundamental Rights. The Presidential           order  cannot   permit  the  reduction  of  Indian           citizens into slaves.

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The validity  of the  38th and 39th Constitution (amendments Acts was not challenged by the respondents.      The key  to these rival contentions can be found in the emergency provisions  contained  in  Chapter  XVIII  of  the Constitution. The  Presidential declaration  of emergency is made final,  conclusive and non-justiciable by clause (5) of Article 352,  which was  introduced by  the  38th  Amendment retrospectively.  But   apart  from   the  fact   that   the Constitution itself  has given  Finality to  declarations of emergency made  by the President, it is difficult to see how a Court of law can look at the declaration of emergency with any mental reservations. The facts and circumstances leading to the declaration of emergency are and can only be known to the  Executive,   particularly  when  an  emergency  can  be declared, as  provided in  Article 352(3), before the actual occurrence  of   war,  external   aggression   or   internal disturbance, so  long as  the President  is  satisfied  that there is  imminent danger  thereof. The actual occurrence of war or  external aggression  or internal  disturbance can be there for  anyone to  see but  the imminent  danger of these occurrences depends  at any  given moment  On the perception and evaluation  of the  national or international situation, regarding which  the court  of law can neither have full and truthful information  nor the  means  to  such  information. Judge and Jury alike may form their personal assessment of a political situation  but whether  the  emergency  should  be declared or  not is  a  matter  of  high  State  policy  and questions of  policy are  impossible to examine in courts OF law. The High Courts whose judgements are under appeal have, with  the   greatest  respect,   failed  to   perceive  this limitation on  the  power  of  judicial  review,  though  in fairness to  them it  must be  stated that  none of them has held that  the declaration  of emergency is open to judicial scrutiny. But  at the  back of  one’s  mind  is  the  facile distrust of  executive declarations  which recite  threat to the  security  of  the  country,  particularly  by  internal disturbance. The  mind then  weaves cobwebs of suspicion and the Judge,  without the  means to  knowledge of  full facts, covertly weighs the pros and cons of the political situation and substitutes  his personal  opinion for the assessment of the Executive,  which, by  proximity and  study,  is  better placed to  decide whether  the security  of the  country  is threatened by  an imminent danger of internal disturbance. A frank and  unreserved  acceptance  of  the  Proclamation  of emergency, even  in the  teeth of one’s own pre-disposition, is conducive  to a more realistic appraisal of the emergency provisions.      A  declaration   of  emergency   produces  far-reaching constituencies. While it is in operation the executive power OF the  Union, by  reason of Article 353, extends the giving of directions  to any  State as  to the  manner in which the executive power  thereof is  to be  exercised. Secondly, the power of  Parliament to  make laws  with respect     to  any matter includes,  during emergency,  the power  to make laws conferring powers  and imposing  duties or  authorising  the conferring of powers 381 and imposition  of duties  upon the  Union or  Officers  and authorities  of   the  Union   as  respects   that   matter, notwithstanding that  the matter  is not  enumerated in  the Union List.  Article 354  confers  power  on  the  President direct that  the provisions  of Articles  268 to  279, which deal with distribution of revenues between the Union and the States, shall  have effect  subject to  such  exceptions  or modifications as the President thinks fit, but not extending

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beyond the  expiration of  the financial  year in  which the proclamation ceases  to operate. A Proclamation of emergency automatically curtails  the  operation  of  Article  19.  As provided in  Article  358,  while  the  Proclamation  is  in operation nothing  in Article 19 shall restrict the power of the State  to make  any law  or to take any executive action which the  Stale would  but for  the provisions contained in Part III  be competent  to make  or to take. Any law so made ceases to  have effect  to the extent of the incompetency as soon as the proclamation ceases to operate.      Then comes  Article 359  which is directly in point. It authorises the  President to  issue an  order declaring  the suspension  of   the  right   to  move  any  court  for  the enforcement of  such of  the rights conferred by Part III as the President  may specify  in his  order. Clause (1A) which was introduced  in Article  359 by  tile 38th  Amendment Act retrospectively has,  inter alia, transported the provisions of Article  358 into  Article 359 during the operation of an order made by the President under Article 359(1). The orders issued by  the President  in the  instant case under Article 359(1) provide  for the  suspension of the right to move any court  for  the  enforcement  of  the  rights  conferred  by Articles 14,  19, 21  and clauses  (4) to (7) of Article 22. Article 21 of the Constitution runs thus:           "No person shall be deprived of his life or person      liberty except  according to  procedure established  by      law."      The principal question for decision in these appeals is whether notwithstanding  the fact  that the  order issued by the President  under Article  359(1) suspends  the right  of every person  to move  any court  for the enforcement of the right to  personal liberty  conferred by  Article 21,  it is open  to  a  person  detained  under  a  law  of  preventive detention like  the MISA  to ask for his release by filing a petition  in  the  High  Court  under  Article  226  of  the Constitution for the writ of habeas corpus.      The writ  of habeas  corpus is  described by May in his ’Constitutional History  of England(1) as the first security of civil  liberty. Julius Stone in ’Social Dimensions of Law and  Justice(2)   calls  it   a  picturesque  writ  with  an extraordinary scope  and  flexibility  of  application.  The Latin term  "habeas corpus"  means ’you  must have the body’ and a writ for securing the liberty of the person was called habeas corpus ad subjiciendum. The writ affords an effective means of immediate release from an unlawful or unjustifiable detention whether  in prison or in private custody. The writ is of  highest  constitutional  importance  being  a  remedy available to  the lowliest subject against the most powerful government.      (1) Ed 1912, Vol. II, p. 130 (Chapter XI).      (2) Ed. 1966. p. 203. 382      The liberty  of the individual is the most cherished of human freedoms  and even in face of the gravest emergencies, Judges have  played a historic role in guarding that freedom with real  and  jealousy,  though  within  the  bounds,  the farthest bounds,  of constitutional  power.  The  world-wide interest generated by the lively debate in Liversidge v. Sir John Anderson and Anr.(1) has still not abated. And repeated citation has  not blunted  the edge  of Lord Atkin’s classic dissent where he said:           "I view  with apprehension  the attitude of judges      who on  a mere  question of  construction when  face to      face with  claims involving  the liberty of the subject      show  themselves   more  executing   minded  than   the

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    executive. In this country, amid the clash of arms, the      laws are  not silent.  They may  be changed,  but  they      speak the same language in war as in peace In this case      I have  listened to  arguments which  might  have  been      addressed acceptably  to the  Court of  King’s Bench in      the time of Charles I."      Sir William Blackstone in his ’Commentaries on the Laws of  England’(2)  says  that  the  preservation  of  personal liberty is  of great  importance to the public because if it were left  in the  power  of  ever  the  highest  person  to imprison anyone  arbitrarily there  would soon  be an end of all other  rights and immunities. "To bereave a man of life, or by  violence to confiscate his estate, without accusation or trial,  would  be  so  gross  and  notorious  an  act  of despotism, as  must at  once convey  the  alarm  of  tyranny throughout the whole kingdom; but confinement of the person, by secretly  hurrying him  to gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a  more dangerous engine of arbitrary government." The learned commentator goes on to add: "And yet, sometimes, when the  state is  in real  danger,  even  this  may  be  a necessary measure. But the happiness of our Constitution is, that it is not left to the executive power to determine when the danger  of the  state is  so great,  as to  render  this measure  expedient;  for  it  is  the  parliament  only,  or legislative  power,  that,  whenever  it  sees  proper,  can authorize the Crown, by suspending the Habeas Corpus Act for a short  and limited  time, to  imprison  suspected  persons without giving any reason for so doing.’’      May in  his Constitutional  History of  England(3) says that during the course of the last century every institution was popularise  and every  public liberty  was extended  but long before  that period  English   men had enjoyed personal liberty as  their birthright.  It was  more prized  and more jealously guarded  than and  other civil  right.  "The  Star Chamber had  fallen: the power of arbitrary imprisonment had been wrested  from the  Crown and Privy Council: liberty had been guarded by the Habeas Corpus Act ....". Speaking of the writ of  habeas corpus May says that it protects the subject from unfounded suspicions, from the aggressions of power and from abuses in the      (1) [1942] A. C. 206; Lord Atkin, p. 244.      (2) 4th Ed. Vol I. pp. 105 to 107.      (3) Ed. 1912, p. 124, 130. 383 administration or  justice. "Yet  this protective law, which gives every   man  security  and  confidence,  in  times  of tranquillity,  has  been  suspended,  again  and  again,  in periods of  public danger  or apprehension. Rarely, however, has this  been suffered  without jealousy,  hesitation,  and remonstrance; and whenever the perils of the State have been held  sufficient  to  warrant  this  sacrifice  of  personal liberty, no  Minister or  magistrate has  been  suffered  to tamper with  the law  at his  discretion. Parliament  alone, convinced of  the exigency  of each occasion, has suspended, for a  time, the  rights of individuals, in the interests of the State."      Dicey in  his Introduction  to the  Study of the Law of the Constitution(1) says that:           "During periods  of political excitement the power      or duty of the courts to issue a writ of habeas corpus,      and thereby  compel the  speedy  trial  or  release  of      persons  charged   with  crime,   has  been   found  an      inconvenient or  dangerous Limitation  on the authority      of the  executive  government.  Hence  has  arisen  the

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    occasion for situates which are popularly called Habeas      Corpus Suspension Acts."      E.C.S. Wade  and  Godfrey  Phillips  observe  in  their Constitutional   Law(2) that  in  times  of  grave  national emergency,  normal   constitutional   principles   must   if necessary give  way of  the overriding need to deal with the emergency. According to the learned authors:           "It has always been recognised that times of grave      national emergency  demand the  grant of special powers      to the  Executive. At  such times  arbitrary arrest and      imprisonment may  be legalised  by Act  of  Parliament.      Modern war  demands the abandonment of personal liberty      in  that   the  duty  of  compulsory  national  service      necessarily takes  away for the time being the right of      the individual to choose his occupation.’ The learned authors refer to the English practice of passing Habeas Corpus  Suspension Acts  in times  of danger  to  the State. These  Acts prevented the use of habeas corpus and as soon as the period of suspension was over anyone who for the time being  had been denied the assistance of the writ could bring an  action for  false imprisonment. Suspension did not legalise illegal  arrest, it  merely suspended  a particular remedy and  therefore, a  practice grew  under which  at the close of  the period of suspension an Indemnity Act would be passed in  order to  protect officials from the consequences or any  illegal acts  which they  might have committed under cover of the suspension of the prerogative writ.      Thomas M.  Cooley says  in the  "General Principles  of Constitutional Law"(3)  in the  U.S.A. that though the right to H      (1) 10th Edition.      (2) 8th Ed., Chapter 48, 717, 718.      (3) 4th Ed., Chapter XXXIV. pp. 360-361. 384 the writ  of habeas  corpus by  which  the  liberty  of  the citizens is  protected  against  arbitrary  arrests  is  not expressly declared  in  the  American  Constitution,  it  is recognised in Article I, section 9, cl. 2 which says that:           The privileges  of the writ of habeas corpus shall      not be  suspended, unless when in cases of rebellion or      invasion the public safety may require it." It would  appear that  in America  something similar  lo the passing of  Acts  of  Indemnity  has  been  done  by  making provisions in State Constitutions.      Thus, though  the liberty of the individual is a highly prized free  dom and  though the  writ of habeas corpus is a powerful weapon  by  which  a  common  man  can  secure  his liberty, there are times in the history of a Nation when the liberty of  the individual is required to be subordinated to the larger  interests  of  the  State.  In  times  of  grave disorders, brought  about by external aggression or internal disturbance, the stability of political institutions becomes a sine  qua non  of the  guarantee of  all other  rights and interests.   "To   assert   an   absolute   exemption   from imprisonment in  all cases,  is inconsistent with every idea of law  and political  society; and in the end would destroy all   civil    liberty,   by    rendering   its   protection impossible.(1) The "clear and present danger test" evoked by Justice Holmes  in Schenck  v. United Slates(-), may well be extended to  cases like  the present where there is a threat of external  aggression. On the heels of American entry into the first  World War  on June 15, 1917, the Congress adopted the Espionage  Act creating  three new  offences which  went beyond the prohibition of spying and sabotage. It prescribed punishment  of  a  fine  of  10,000  dollars  and  20  years

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imprisonment. A  year later,  the Act was amended by what is popularly called  the Sedition  Act  which  is  rendered  it illegal even  to say anything to obstruct the sale of United States bonds  or to  say anything contemptuous regarding the form of  Government of  the United States. A unanimous court upheld Schenck’s  conviction under  the Act  for propagating that compulsory service in the Armed Forces was "a monstrous wrong against  humanity in  the interest  of  Wall  Street’s chosen few". The judgment was delivered in 1919 when the war was already  over and Holmes J. held that things that can be said in  times of  peace will not be endured during times of war and  no court  will regard  them  as  protected  by  any constitutional right.      The emergency  provisions were  incorporated  into  our Constitution on the strength of experience gained in England and U.S.A.  But the object of Article 359 is to confer wider power on  the President than the power to merely suspend the right to  file a  petition for  the writ  if habeas  corpus. Article 359  aims at empowering the President to suspend the right to  enforce all  or  any  of  the  fundamental  rights conferred by Part III. It is in order to achieve that object that Article      (1) Blackston’s  Commentaries on  the Laws  of England, 4th Ed. Vol. III pp.125-126.      (2) 249 U. S. 47 (1919). 385 359 does not provide that the President may declare that the remedy   by way  of’ habeas corpus shall be suspended during emergency. Personal  liberty is  but one  of the fundamental rights conferred  by Part  III and the writ of habeas corpus is peculiar  to the  enforcement of  the right  to  personal liberty. lt  must follow that the suspension of the right to enforce the  right conferred by Article 21 means and implies the suspension of the right to file a habeas corpus petition or to  take any  other proceeding  to enforce  the right  to personal liberty conferred by Article 21.      But then  it is urged on behalf of the respondents that by their writ petitions, respondents did not seek to enforce the right  to personal  liberty conferred  by Article  21 or possessed by  them apart from it. They were really seeking a declaration that  the order of detention was illegal for the reason that  it did  not comply with the requirements of the law under  which it  was passed. In support of this argument reliance  is   placed  upon   a  passage  in  H.W.R.  Wade’s Administrative Law(1)  to the effect that habeas corpus is a remedy not only for the enforcement of the right to personal liberty but  is also  a remedy  for the  enforcement of  the principle of  ultra vires. This argument lacks substance and overlooks the realities of the situation. lt ay be open to a detenu by filing a petition for the writ of habeas corpus to contend that order under which he is detailed is ultra vires of the  statute to  which the  order owes its existence. But one must  have regard to the substance of the matter and not to mere  from the  real and  substantial  relief  which  the detention for  by a  writ of habeas corpus is that he should be freed  from detention  and the  reason for  the relief is that the  order of  detention is  ultra vires.  It is clear, apart from  the Form  in which  the relief may or may not be clothed, that  the respondents  through their writ petitions were moving  the High  Courts for  enforcing their  right to personal liberty.  The history  of the writ of habeas corpus which  is   succinctly  narrated  in  the  late  Mr.  M.  C. Setalvad’s ’The  Common Law in India’(1) shows that the writ of habeas  corpus  which  was  in  its  inception  a  purely procedural writ  gradually developed  into a  constitutional

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remedy furnishing  a most  powerful safeguard for individual freedom.  Mr.   Setalvad  quotes  that  the  writ  has  been described as  "the key  that unlocks  the door  to freedom". Respondents were  surely  not  interested  in  obtaining  an academic declaration  regarding the  ultra vires ’ character of their  detention. They  wanted the  door to freedom to be opened by the key of the habeas corpus writ.      Equally untenable  is the  contention that  article 226 which occurs in Chapter V, Part VI of the Constitution is an entrenched provision  and, therefore,  under Article  368 no amendment can be made to Article 226 without ratification by the Legislatures of not less than one-half of the States. It is true  that Article  220 is  an entrenched provision which cannot suffer an amendment except by following the procedure prescribed by  the proviso  to  Article  368  (2).  But  the Presidential order  is issued  under the Constitution itself and if  its true  construction produces a certain result, it cannot be said that some      (1) 3rd Ed., pp. 127, 128      (2) Pages 37-41 (Ed 1960, Hamlyn Lectures) 27-833 SCI/76 386 other Article  of the  Constitution stands  thereby amended. Article 359(1)  provides for  the passing of an order by the President declaring that the right to move for the enforcing of fundamental  rights  mentioned  in  the  order  shall  be suspended. That  may, in  effect, affect the jurisdiction of the High  Courts to entertain a petition for the issuance of the writ of habeas corpus. But that does not bring about any amendment of  Article 226 within the meaning of Article 368, which speaks  of  amendments  to  the  Constitution  by  the Parliament in  the exercise  of  its  constitutional  power. Article 226  and  Article  359(1)  are  parts  of  the  same fundamental instrument  and a  certain interpretation of one of these  Articles cannot  amount to  an  amendment  of  the other.      It is  also not  correct to  say  that  any  particular interpretation of  Article 359(1) will mean the abolition of the jurisdiction  and  power  of  the  Supreme  Court  under Article 32  and of  the High Courts under Article 226 of the Constitution. The true implication of the Presidential order is to  take away  the right  of any person to move any court for the enforcement of the rights mentioned in the order. In strict legal  theory the  jurisdiction  and  powers  of  the Supreme Court  and the High Courts remain the same as before since the  Presidential order  merely takes  away the  locus standi of  a person to move these Courts for the enforcement of certain  fundamental rights  during the  operation of the Proclamation of  Emergency. It  is important  to  appreciate that the  drive of  Article 359(1) is not against the courts but is  against individuals, the object of the Article being to deprive  the individual  concerned of his normal right to move The Supreme Court or the High Court for the enforcement of The  fundamental rights  conferred by  Part  III  of  the Constitution.  In   Sree  Mohan   Chowdhury  v.   The  Chief Commissioner, Union  Territory of  Tripura(1) a Constitution Bench of  this Court,  dealing with  an order  issued by the President  on   November  3,   1962  under  Article  359(1), observed:           "...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

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    suspend all  the rights  vested in citizen to move this      Court but  only his  right to enforce the provisions of      Arts. 21  and 22.  Thus, as a result of the President’s      order aforesaid,  the petitioner’s  right to  Move this      Court, but  not this  Court’s power  under Art.  32 has      been suspended  during the operation of Emergency, with      the result  that the  petitioner by  no locus standi to      enforce his right, if any, during the Emergency,      According to  the respondents,  the limited  object  of Article 359(1) is to remove restrictions on the power of the legislature so that during the operation of the emergency it would be  free to  make laws in violation of the fundamental rights specified  ;11 the  Presidential order. This argument loses sight of the distinction between the provisions or      (1) [1964] 3 S. C.R. 442, 451 387 Art. 358 and Art. 359(1A) on the one hand and of Art. 359(1) on the  other. Art.  358, of  its  own  force,  removes  the restrictions on  the power  of the  Legislature to make laws inconsistent with  Art. 19 and on the power of the executive to take  action under  a law which may thus violate Art. 19. Article 358  does not  suspend any right which was available under Art.  19 to  any person  prior to  the Proclamation of Emergency. Under  Art. 359(1)  the President is empowered to suspend the right of an individual to move any court for the enforcement of  the rights  conferred by  Part III as may be mentioned in  the order.  Consequent upon  such  order,  all proceedings pending  in any court for the enforcement of the rights so  mentioned remain suspended during the period that the Proclamation  is in  force or such shorter period as the order may  specify. Article  359 (1)  is thus wider in scope than Art.  358. This distinction has an important bearing on the main  point under consideration because it shows that it was not  enough to  provide that  nothing in  Art. 19  shall restrict the  power of  the State to make any law or to take any executive  action which  the State  would, but  for  the provisions contained  in Part  III, be  competent to make or take. In  order to  effectuate the purposes of emergency, it was necessary  further to  provide that no person would have any right  to move  for the  enforcement of  his fundamental rights mentioned  hl the Presidential order and that pending proceedings in that behalf shall remain suspended during the operation of  the emergency.  It  seems  elementary  that  a fundamental right can be enforced as much in regard to a law which takes  away that  right contrary  to the provisions of the Constitution  as  against  the  Executive,  if  it  acts contrary to the provisions of a law or without the authority of’  law.  In  view  of  he  language  of  Art.  359(1)  and considering the distinction between it and the provisions of Art. 358,  there is  no justification  for  restricting  the operation of  Art. 358  (1) as  against  laws  made  by  the Legislature in violation of the fundamental rights.      Reliance was placed by the respondents on the decisions of  this   Court  in  Sree  Mohan  Chowdhury  v.  The  Chief Commissioner, Union Territory of Tripura(1) and Makhan Singh v. State  of Punjab(2)  in support  of their contention that Art. 359(1)  operates in  the legislative  and  not  in  the executive field.  These decisions  do  not  support  such  a proposition. On  the contrary,  it  is  clear  from  the  to decisions that  the effect  of the  Presidential order under Art. 359(1)  is to take away the locus standi of a person to move any court for the enforcement or his fundamental rights which are  mentioned in  the order. Neither of the two cases deals directly  with the question G whether the operation of Art. 359(1)  is restricted  to the legislative field but, if

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at all,  the ratio  of those cases may be logically extended to cover  executive acts also. During times of emergency, it is the  Executive which  commits encroachments  on  personal liberties and  the object  of Art.  359(1) is to empower the President to  suspend the  right to  move any  court for the enforcement of  a right  to complain  against the actions of the Executive, no less than against the      (1) [1964] 3 S. C. R. 142.      (2) [1964] 4 S. C. R. 797. 388 laws passed  by The  Legislature, if  either the  one or the other contravenes any of the fundamental rights mentioned in the order.      This position  was controverted by the respondents from several angles.  It was  contended that  in  a  Constitution which divides  State functions  into Executive.  Legislative and Judicial.  the executive  functions must  be  discharged consistently with  the laws passed by the    Legislature and the  orders   and  decrees  passed  by  the  judiciary.  The suspension of the right to enforce fundamental rights cannot confer any  privilege on  the Executive  to flout the law by which it  is bound as much in times of emergency as in times of peace.  Therefore, the  argument proceeds,  there being a valid law  regulating preventive detention, namely the MISA, every order  of  detention  passed  by  the  Executive  must conform to  the  conditions  prescribed  by  that  law.  The current of  thought underlying this argument was highlighted by a  learned counsel  for the respondents by saying that it is strange  that  in  the  face  of  a  law  passed  by  the Parliament, which  in passing  the law  must assume  that it will be  obeyed,  the  Executive  can  flout  the  law  with impunity by  relying on  the Presidential order issued under Article 359(1).  Yet another point of view presented on this aspect of the case was that permitting the Executive to defy and-disobey the law made by the Legislature is tentamount to destroying one  of  the  important  basic  features  of  the Constitution that the Executive is bound by the laws made by the Legislature.  Finally, it was urged that the Preamble to the Constitution  speaks of  a Sovereign Democratic Republic and, therefore,  the Executives  which is subordinate to the Legislature cannot  act to the prejudice of the citizen save to  the  extent  permitted  by  laws  validly  made  by  the Legislature which   is  the  chosen  representative  of  the people.      In view of the true scope and object of Article 359(1), which has  already been  dealt with  above, these  arguments have to  be rejected. In the first place, it is difficult to appreciate the  argument of  ’basic features’ because we are not  concerned   to  pronounce  upon  tile  validity  of  an amendment  made  to  the  Constitution  by  a  parliamentary measures. We  are  concerned  to  understand  the  scope  of Article 359(1)  and what it implies. That Article is as much a basic  feature of  the Constitution  as any  other and  it would be  inappropriate to hold that because in normal times the Constitution  requires the  Executive to  obey the  laws made by  the Legislature, therefore, Article 359(1) which is an emergency  measure, must  be construed  consistently with that position.  The argument  of basic  feature is wrong for yet another reason that Article 359(1) does not provide that the Executive  is free  to disobey  the  laws  made  by  the Legislature. Al  the cost of repetition it must be said that what Article 359(1) achieves is merely the suspension of the right of an individual to move a court for the assertion of’ his fundamental  rights which  have been  mentioned  in  the Presidential order, even if such rights are contravened

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either  by the Legislature or by the Executive. To permit a challenge in  a court of law to an order of detention, which is an  executive  action,  on  the  ground  that  the  order violates a  fundamental right  mentioned in the Presidential order, is  to permit  the detenu  to enforce  a  fundamental right during emergency in a manner 389 plainly contrary  to Article  359(1). The  language of  that Article,  it   is  admitted  on  all  hands,  is  clear  and unambiguous.      The constitutional  consequences of  a Proclamation  of Emergency are  grave  and  far-reaching.  Legislatures  can, during emergency,  make  laws  in  violation  of  the  seven freedom guaranteed by Article 19 the President has the power to suspend  the right  to move for the enforcement of all or any of  the fundamental rights mentioned in the order issued under Article  359(1); the  Executive  power  of  the  Union extends during emergencies to giving directions to any State or to  the manner in which the executive power thereof is to be exercised.  This particular  power conferred on the Union Executive is in total violation of the provisions of Article 162 of  the Constitution and indeed of the federal structure which is  one of the principal features of our Constitution; in any  State Executive  fails to comply with the directions given by  the Union  Executive  under  Article  353(a),  the "President’s rule"  can  be  imposed  on  that  State  under Article 356, in which event the Parliament is entitled under Article 357(1)  to confer  on the President the power of the Legislature of  that State  to make  laws The Parliament can even authorize  the President  to delegate  such legislative power to  any other  authority. The  democratic structure of the Constitution stands severely eroded in such a situation. Finally, Parliament acquires during emergencies the power to make laws  on matters which are numerated in the State List. If consequences  so fundamentally  subversive of  the  basic federal structure  of the  Constitution  can  ensure  during emergencies, it  is not  as revolting  as may  be appear  at first sight  that even  if the  Executive does  not obey the mandate of the Legislature, the citizen is powerless to move any court  for the  protection of his fundamental rights, if these rights are mentioned in the Presidential order.      A facet of the same argument was presented on behalf of the respondents  with even  greater force. It was urged that Art. 359(1)  may remove  fetters imposed  by Part III but it cannot ever remove the fetters arising from the principle of rule of  law or  from the  principle of the limited power of the Executive under a system of checks and balances based on separation of  powers. The  obligation cast on the Executive to act  in accordance  with law  does not,  according to the respondents,  arise  from  any  particular  article  of  the Constitution but  it arises  from the inherent compulsion of the rule  of law  which is  a central  basic feature  of our constitutional  system.  The  suspension  of  the  right  to enforce  Article   21  cannot   automatically   entail   the suspension of  the  rule  of  law  because  even  during  an emergency the  argument proceeds, the rule of law is not and cannot be  suspended. The  Executive has a limited authority under the  Indian Constitution  and it  can act  within  the residual area  as it  pleases, so long as it does not act to the prejudice  of the citizen. It is always incumbent on the Executive to  justify its  action on  the basis  of law  and this, according  to the  respondents, is  the  principle  of legality or the rule of law.      The respondents’  argument that  all  executive  action which operates  to the  prejudice of  a person must have the

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authority of  law to  support it  is indisputably  valid  in normal  situations.   In  the  absence  of  Proclamation  of Emergency and in the absence of a Presidential order 390 Article 359(1) of the kind that we have in the instant case, the I  executive is  under an obligation to obey the law and if it acts to the prejudice of anyone by disobeying the law, its action  is liable  to be  challenged by  an  appropriate writ. That  the rule  of law must prevail in normal times is the rule  of law  under the  Indian Constitution.  But it is necessary  to   clear  a   misconception.  Even  though  the compulsion to  obey the law is a compulsion of normal times, Article 358 takes in those cases only in which the executive purports to  act under  the authority  of a law. It does not envisage that  the executives  can’ act without the apparent authority of  law. In  other words,  Article 358 enables the Legislature to  make laws in violation of Article 19 and the Executive to act under those laws, despite the fact that the laws constitute  an infringement  of the  fundamental rights conferred by Article 19.      The argument  of the  respondents that the Presidential order under  Article 359(1)  cannot ever suspend the rule of law requires  a close  examination, particularly  in view of some of the decisions of this Court which apparently support that contention.      In State  of Madhya  Pradesh &  Anr. v.  Thakur  Bharat Singh(1) the  State Government,  on April  24, 1963  made an order under  section 3 of the Madhya Pradesh Public Security Act, 1959  directing that the respondent shall not be in any place in  Raipur District, that he shall immediately proceed to and reside in a named town and that he shall report daily to a  police station  in that town. The order was challenged by the  respondent by a writ petition under Articles 226 and 227 of  the  Constitution  on  the  ground  that  section  3 infringed  the  fundamental  rights  guaranteed  by  Article 19(1)(d)  and   (e)  of  the  Constitution.  The  respondent succeeded in  the High  Court which  declared a  part of the order invalid  on the  ground that  section 3 (1) (b) of the Act was  violative of  Article 19(1)(d) of the Constitution. In appeal.  it was  contended in this Court on behalf of the State Government  that so  long as  the state  of  emergency declared on  October 20,  1962 was  in force, the respondent could not  move the  High Court  by a petition under Article 226 on  the plea  that by the impugned order his fundamental right guaranteed  under Article  19(1)(d) was  infringed. It was further contended on behalf of the State Government that even if  section 3(1)(b)  was held  to be  void. Article 358 protected legislative  as well  as  executive  action  taken after the  Proclamation of Emergency and therefore the order passed by  the Government  after the  emergency was declared could not be challenged as infringing Article 19. Describing this latter  argument  as  involving  "a  grave  fallacy"  a Constitution Bench  of  this  Court  dismissed  the  State’s anneal holding,  that for  acts done to the prejudice of the respondent after  the declaration of emergency under Article 352. no  immunity from"  the process  of the  Court could be claimed under  Article 358  of the  Constitution  since  the order was  not supported  by and,  valid legislation. Shah J who spoke  on behalf  of the  Bench observed in his judgment that an  executive action which operates to the prejudice of any person  must have the authority of law to support it and that the      (1) [1967] 2 S.C.R.454 391 terms of  Article 358 do not detract from that rule. Article

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358,  according to this Court, did not purport to invest the State  with  arbitrary  authority  to  take  action  to  the prejudice of citizens and others but it merely provides that so long  as the Proclamation of Emergency subsists, laws may be enacted and executive action may be taken in pursuance of lawful authority, which if the provisions of Article 19 were operative would have been invalid.      It is  important to  bear in  mind that  Bharat Singh’s case was  concerned with  a pre-emergency  law,  though  the impugned order was passed thereunder during the operation of emergency. The  law having  been passed  in 1959,  which was before the  declaration of  emergency, it had to comply with Article 19  and if  it did not, it was void to the extent of the inconsistency. Since the law was held to be violative of Article 19  it could  not claim any protection under Article 358. That  article lifts  restrictions on  legislative power "while a proclamation of Emergency is in operation," that is to say,  it enables  laws to  be made  during the emergency, ever if they conflict with Article 19. The executive is then free to  act under  those laws.  But, if the law is void for the reason  that having  been made prior to the emergency it violates Article  19, or if there is no law at all under the purported authority  of which  the executive  has acted, the executive action  is not  protected by  Article 358.  Bharat Singh’s case  is distinguishable  for the  additional reason that it  was only  concerned with  the effect of Article 358 and no  question arose  therein with regard to any executive action  infringing   a  fundamental  right  mentioned  in  a Presidential order  issued  under  Article  359(1).  I  have already indicated  the vital  difference between Article 358 and Article  359(1). The  latter bars the enforcement of any fundamental  right  mentioned  in  the  Presidential  order, thereby rendering  it incompetent for any person to complain of its violation whether the violation is by the Legislature or by the Executive. In other words, Article 359(1) bars the remedy by  depriving an   grieved  person of  his  locus  to complain of the violation, of such of his fundamental rights as are mentioned in the Presidential Order.      Respondents  also   relied  in   support  of  the  same submission on  the  decisions  of  this  Court  in  District Collector of Hyderabad & ors. v. M/s. ’Ibrahim & Co. etc.(1) Bennett Coleman  & Co. and ors. v. Union of India & ors.,(2) and Shree  Meenakshi Milk  Ltd. v. Union of India. (3) These decisions are  founded  on  the  same  principle  as  Bharat Singh’s case and are distinguishable for the same reason. In Ibrahim case. the existing licences of recognised dealers in sugar were  cancelled by the State Government and a monopoly licence was given to a Cooperative Stores thereby preventing the dealers by a mere executive order from carrying on their business. A  question arose  in the appeal whether the order of the  State  Government  canceling  the  licences  of  the dealers was protected under Articles 358 and      (1) [1970] 3 S. C. R. 498.      (2) [1973] 2 S. C. R. 757, 773 775.      (3) [1974] 2 S. C. R. 398, 405, 406 and 428 392 359 the  Constitution as  the President had declared a state of emergency on October 20, 1962. This question was answered in the negative on the ground that the executive order which was immune  from attack  is only  that order which the State was competent  to make  but for  the provisions contained in Article  19.   Since  the  executive  action  of  the  State Government was  invalid apart  from Article  19, it  was not immune  from   attack  merely   because  a  Proclamation  of Emergency  was   in  operation.   The  important   point  of

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distinction is  that in  Ibrahim’s case,  the impugned order was not  made under the authority reserved by the Defence of India ordinance  or the rules made thereunder but was issued merely in  pursuance of  the policy laid down by the Central Government  in   entrusting  the   distribution   of   sugar exclusively to  co-operative societies.  In Bennett  Coleman Company’s case  the impugned Newsprint Control Policy was an emanation of  the old  policy which  was enunciated prior to the Proclamation of Emer ency. Relying on Ibrahim’s case and Bharat Singh’s  case, this  Court held that Article 358 does not authorise  the taking  of detrimental  executive  action during the emergency without any legislative authority or in purported exercise of power conferred by a pre-emergency law which was  invalid when  enacted. The  decision  in  Bennett Coleman Company’s case was followed in Meenakshi Mills’ case where the  executive action  taken during  the emergency did not have  the authority  of any  valid law  and the impugned orders having  been made  under a pre-emergency law were not immune from attack under Article 358.      Respondents relied  on a  passage in  the  judgment  of Ramaswami who  spoke  on  behalf  of  the  Court  in’  Chief Settlement Commissioner, Rehabilitation Department, Punjab & Ors etc.  v. Om  Parkash & ors. etc.,(1) to the. effect that whatever  legislative  Power  the  executive  administration possesses must  be derived  directly from  the delegation of the legislature and exercised validly only within the limits prescribed. The  Court emphatically  rejected the  notion of inherent or  autonomous law-making  power in  the  executive administration of  the country and observed that the rule of law rejects  the conception  of  the  Dual  State  in  which governmental action  is placed  in a  privileged position of immunity from  control by  law on  the ground  that  such  a notion is  foreign to  our  basic  constitutional  connects. Respondents also  relied upon  the  decision  of  the  privy council in  Eshuqbayi Eleko  v.  Officer  Administering  the Government of  Nigeria (2) where Lord Atkin observed that in accordance with  the British  jurisprudence no member of the Executive can  interfere with  the liberty  or property of a British subject  except on the condition that he can support the legality  of his  action before  a Court of Justice. Our attention was repeatedly drawn to a further observation made by Lord Atkin that it is a tradition of British justice that judges should  not shrink  from deciding  such issues in the face  of   the  executive.   These  observations  have  been considered by  this court  in Makhan  Shingh’s  case  where, speaking of behalf of the majority, Gajendragad-      (1) [1968]3 S. C. R. 655. 661.      (2) [1931] A. C. 662, 670. 393 kar J. said that the sentiments expressed by Lord Aktin were noble and  eloquent but  it was  necessary to have regard to the provision of our Constitution by which were governed and which has  itself made  emergency  provisions  in  order  to enable  the   nation  to  meet  the  challenge  of  external aggression or internal disturbance. The principle enunciated in  Eleko’s   case,  however  lofty  and  stirring,  has  no relevance here  because we  have to consider the meaning and effect of  Article 359  (1) which  has no  parallel  in  the English law.  Eleko’s principle is unquestionably supreme in times of  peace and  so is  the validity of the observations made by  Ramaswami J.  in Om  Prakash’s case.  Both of those cases were  concerned with  a totally different problem, the problem of peace, not of war or internal disturbance.      The ’Rule  of Law’  argument like  the ’Basic  Feature’ argument is  intractable. Emergency  provisions contained in

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Part XVIII  of  the  Constitution  which  Lure  designed  Lo protect the  security of  the State  are as important as any other  provision   of  the   Constitution.   If   the   true constriction and  effect of  article 359(1)  is  as  I  have stated it  to be,  it is  impossible to  hold  that  such  a construction violates  the rule  of law.  The rule  of  law, during an  emergency, is  as one  finds it in the provisions contained in Chapter XVIII of the Constitution. There cannot be a  brooding and  omnipotent rule  of law  drowning in its effervescence the emergency provisions of the Constitution.      The Advocate  General of  Gujarat had peculiar problems to voice.  arising out  of the fluid and uncertain political situation in  his State. He was unable to appreciate how the Executive Government of the State could defy a parliamentary mandate  contained  in  the  MISA,  either  as  regards  the procedural or the substantive part of that law. Whatever may be the  requirements of  emergency he seemed to contend, the Gujarat Government  could not,  save at  grave peril  to its existence,  defy  the  provisions  of  a  law  made  by  the Parliament. The  anguish and  embarrassment of  the  learned Advocate General is understandable, but the short, answer to his contention  is that,  on the  record. the  Government of Gujarat has  not been  asked to flout the MISA and indeed no one can  dispute the right of the State Government to ensure compliance with  the laws  of the  land. Indeed  that is its plain and foremost duty. The important consideration is that in the  event of State Government coming to pass an order of detention in violation of MlSA the detenu will have no right to enforce  his Corresponding  fundamental right  if  it  is mentioned in  the Presidential  order. The  learned Advocate General built  his argument  as if.  during emergencies, the executive is  under an  obligation to flout the law or the h ind.  Article   359(1)  neither  compets  nor  condones  the breaches  by   the  executive   of  the  laws  made  by  the legislature. Such  condonation is  the function of an Act of Indemnity.      I must  now take  up for consideration a very important plank of  the respondents’  argument that  Article 21 is not the sole  repository of  the  right  to  life  and  personal liberty This  argument has  been presented  before  us  from aspects too numerous to mention and scores of instances have been  cited   to  buttress  it.  This  was  to  some  extent inevitable because quite a few counsel argued the same point and each 394 had his  peculiar, favourite  accent. I will try to compress the arguments  without, I  hope, sacrificing  their thematic value      The respondents’ arguments may be put thus:      (1) Article  21 is not the sole repository of the right to personal  liberty because  that right  can  be  found  in Articles 19(1)  (b), 20 and 22 also. In view of the decision in  the   Bank  Nationalisation(1)   case,  which  overruled Gopalan’s case,  these rights are not mutually exclusive and therefore the  suspension of the right to enforce Article 21 cannot affect the right conferred by Articles 19, 20 and 22.      (2) Article  21 is not the sole repository of the right to personal  liberty because,  (i) an  accused convicted  of murder and  sentenced to  death can assert his right to life by challenging  the conviction  and sentence  in appeal,  in spite of  the Presidential  order under Article 359(1); (ii) if a  person is  wrongfully confined.  he can  ask  for  his personal liberty by prosecuting the offender in spite of the Presidential order;  and (iii)  if a  money-decree is passed against the  Government, the decree can lie enforced even if

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the right  to enforce  the right to property is suspended by the ’Presidential order.      (3)  Prior   to  the   enactment  of  the  Constitution statutory,  contractual   and  common  law  rights  were  in existence and  those rights  can be  taken away  only by the Legislature. They  cannot be  affected by  the  Presidential order. The  pre-Constitution common law and statutory rights to personal  liberty continued in force by reason of Article 372  of  the  Constitution,  since  those  rights  were  not repugnant to  any provision  of  the  Constitution.  If  the fundamental right  to personal  liberty is  suspended by the Presidential order,  the pre-Constitution laws will begin to operate by  reason of  the their  of eclipse.  There  is  no authority for  the proposition  that on  the  conferment  of fundamental rights  by the  Constitution, the  corresponding pre-existing rights  Merged in  the fundamental  rights  and that  with   the  suspension   of  fundamental  rights,  the corresponding  pre-existing   rights  also   got  suspended. Article 21 is different in content from the common law right to personal  liberty which  was  available  against  private individuals also. Since Article 21 merely elevates the right of personal  liberty to  the status  of a fundamental right, the pre-Constitution  rights  cannot  be  suspended  by  the Presidential order.  The object of Article 21 is to give and not to  take. In  fact, the  very language  of that  Article shows that  instead of  conferring  the  right  to  personal liberty, it  assumed its  existence in  the first  place and then proceeded  by a  negative  provision  to  prohibit  its deprivation. Examples of such pre-Constitution rights are:      (1) rights  available under  the Indian  Penal Code and the Criminal Procedure Code; (ii) rights available under the law of  torts. especially  the rights to sue for damages for false imprisonment.  and (iii)  the remedy  of habeas corpus available under  section 491, Criminal Procedure Code, since the year 1923.      (1) [1970] 3 S. C. R, 530, 578.      (2) [1950] S. C. R. 88, 395      (4) Non-fundamental  constitutional rights  like  those arising under Articles 256, 265 and 361(3) or natural rights or contractual  rights or  the statutory  rights to personal liberty  are   not  affected   by  the  Presidential  order. Statutory rights  can only  be taken  away in  terms of  the statute and  not by  an executive flat. By reason of Article 256.  the   executive  power  of  every  state  must  ensure compliance  with  the  laws  made  by  the  Parliament.  The executive power  of the  States must  therefore comply  with section 56  and 57  of the  Criminal Procedure  Code  and  a person aggrieved  by the  violation of  those provisions can enforce his  statutory right to personal liberty in spite of the Presidential  order. By Article 265 no tax can be levied or collected  except by  authority of law. A person affected by the  violation of this provision can enforce his right to property even  if Article  19 is  suspended.  If  a  process happens to  be issued  against the  Governor of  a State  in contravention of  Article 361(3),  the Governor can exercise his right to personal liberty despite the Presidential order under Article  359(1) .  Similarly, in  cases not covered by section 16A  of the  MISA, if the Advisory Board opines that the detention  is unjustified,  the detenu  can  compel  the Government  to   accept  that   opinion,  in  spite  of  the Presidential order.      (5) Even  after the  passing of  a Presidential  order, Parliament may  create new  rights to  personal liberty  and such rights  can be  enforced in  spite of  the Presidential

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order.      (6)  Civil   liberty  or  personal  liberty  is  not  a conglomeration of position rights. It operates in an area of free action and no law can possibly curtail it.      (7)  If  a  law  affecting  the  fundamental  right  to personal  liberty   is  void   for   want   of   legislative competence.,  it   can  be   challenged  in   spite  of  the Presidential order      (8) The  suspension of  the right  to enforce  personal liberty cannot  confer a  licence on  executive officers  to commit offences  against the law of the land, and if they do so, they can be brought to book in spite of the Presidential order.      I look  at the question posed by the respondents from a different   angle.   The   emergency   provisions   of   the Constitution are  designed to  protect the  Security of  the State and  in order  to achieve that purpose, various powers have been  conferred on  the Parliament and the President by Chapter XVIII  of the Constitution. One of such powers is to be found in Article 359(1) under which the President, during the  operation   of  the   emergency,  can  issue  an  order suspending the  right to  move any court for the enforcement of all  or any  of the  fundamental rights conferred by Part III. Proceedings  commenced prior to the issuance of such an order, including proceeding s taken prior to the declaration of the  emergency  itself,  automatically  remain  suspended during the  emergency or  for such  shorter  period  as  the President may in his order specify. The object of empowering the  President  to  issue  an  order  under  Article  359(1) suspending the  enforcement of the right to personal liberty conferred by Part III of the 396 Constitution cannot  be to save all other rights to personal liberty except  the one  conferred by Part III, which to the seems totally  devoid  of  meaning  and  purpose.  There  is nothing peculiar  in the  content of  the right  to personal liberty conferred  by Part  III  so  that  the  Constitution should provide  only for  the suspension  of  the  right  to enforce that  particular kind  of right,  leaving all  other rights to personal liberty intact and untouched. In times of emergencies    the    executive,    unquestionably    though unfortunately, is  constrained  to  take  various  forms  of action in  derogation of  the rights of citizens and others, including the  cherished  right  to  personal  liberty.  The Constitution aims  at protecting  the executive,  during the operation of  emergency, from attacks on the action taken by it in  violation of  the rights of individuals. Accordingly, in so  far as the right to personal liberty, for example, is concerned one of the objects of the emergency pro visions is to ensure  that no  proceeding will be taken or continued to enforce  that   right  against   the  executive  during  the operation of  the emergency. The executive is then left free to devote  its undiluted  attention to meeting the threat to the security  of the  State. This  purpose  cannot  ever  be achieved by  interpreting Article  359(1) to mean that every right to  personal liberty  shall be  enforceable and  every proceeding involving  the enforcement  of such  right  shall continue during the emergency, except to the extent to which the right  is conferred by Part III of the Constitution, The existence of  the right  to personal  liberty  in  the  pre- Constitution period  was surely  known to  the makers of the Constitution. The  assumption  underlying  the  respondent’s argument is that in spite of that knowledge, the Constituent Assembly decided that all those rights will reign supreme in their pristine glory even during the emergency and what will

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remain in  abeyance is  only the enforcement of the right to personal  liberty  conferred  by  Part  III.  The  right  to personal liberty  has no  hallmark and  therefore  when  the right is  put in action it is impossible to identify whether the right  is one  given by the Constitution or is one which existed in the pre-Constitution era. If the arguments of the respondents is  correct no  action to  enforce the  right to personal liberty  can at all fall within the mischief of the presidential order  even if  it mentions  Articles19, 20, 21 and  22   because,  every   preliminary  objection   by  the Government to  a petition  to enforce  the right to personal liberty can  be effectively answered by contending that what is’ being  enforced is  either the natural right to personal liberty or generally, the pre-Constitution right to personal liberty. The  error of the respondents’ argument lies in its assumption, and  in regard  to the  argument of  some of the counsel  in   the  major   articulate  premise,   that   the qualitative  content   of  the  non-constitutional  or  pre- constitutional right  to personal  liberty is different from the content  of the  right to  personal liberty conferred by Part III  of the Constitution. The right to personal liberty is the  right or the individual to personal freedom. nothing more and  nothing less.  That right along with certain other rights was  elevated to the status of a fundamental right in order that  it may  not be tinkered with and in order that a mere majority should not be able to trample over it. Article 359 (1)  enables the  President to  suspend the  enforcement even of  those rights  which were sanctified by being lifted out of the common morass of human rights. If the enforcement of the fundamental 397 rights can  be suspended  during an emergency, it is hard to accepts   That the  right to  enforce non-fundamental rights relating to the same subject matter should remain alive.      Article 359(1)  contains three  important clauses:  (1) The Proclamation  of Emergency  must be  in operation at the time when  the President issues his order; (2) The President must issue an order declaring the suspension of the right to move any  court; and  (3) The  power  of  the  President  to declare such  suspension can  extend to  such rights only as are conferred  by Part  III. If  these three  conditions are satisfied, no  person can move any court for the enforcement of such of the rights conferred by Part III as are mentioned in the Presidential order.      The  first   and  foremost   question  to  ask  when  a proceeding is  filed to  enforce  a  right  as  against  the Government while a Proclamation of Emergency is in operation is, whether the right is mentioned in the Presidential order and whether  it is  the Kind of right conferred by Part III. Article 21,  for example,  confers the  right  to  life  and personal liberty.  The  power  of  the  President  therefore extends under  Article 359(1) to the suspension of the right to move  any court  for the enforcement of the right to life and personal  liberty.  The  President  cannot  suspend  the enforcement of  any right  unless that  right is included in Part III which confers fundamental rights. The President, in my opinion,  would be acting within the strict bounds of his constitutional power if, instead of declaring the suspension of the right to enforce the right conferred by Article 21 he were to  declare that  "the right not to be deprived of life and  personal   liberty  except   according   to   procedure established  by   law"  shall   remain  suspend  during  the emergency.      Article 359  (1) does not really contemplate that while declaring the suspension of the right to move any court, the

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President must or should specify the Article or the Articles of the  Constitution the  enforcement of rights conferred by which shall  be suspended. What Article 359 (1) contemplates is that  the President  can declare  the suspension  of  the right to  move any  court for  the enforcement cf the rights mentioned in  Part III.  The words  "conferred by  Part III" which occur in Article 359(1) are not intended to exclude or except from the preview of the Presidential order, rights of the same  variety or  kind as  are mentioned in Part III but which were  in existence prior to the Constitution or can be said to  be in existence in the post Constitution era, apart from the  Constitution. The  emphasis of  the Article is not the right  to suspend  the enforcement of the kind of rights mentioned in  Part III and not on the fact that those rights are conferred  by Part III. To put it differently. the words ’’conferred by  Part III" are used only in order to identity the particular  rights  the  enforcement  of  which  can  be suspended by  the President  and not  in order  to impose  a limitation on the power of’ the President so as to put those rights  which   exist  or   which  existed  apart  from  the Constitution, beyond  the reach  of’ the Presidential order. The respondents by their petitions are enforcing their right to personal  liberty and  that right is a right conferred by or mentioned in Part III or the Consti 398 tution. As  I have said above, if instead of saying that the right to  enforce the right conferred by Article 21 shall be suspended the President were to say that the right not to be deprived of  life or  personal liberty  except according  to procedure established  by  law  will  remain  suspended,  no argument of  the kind  made before  us could reasonably have been made. The true effect of the Presidential order, though worded in  the way it is, is the same as it would have been, had it been worded in the manner I have indicated.      It therefore  does not  make any difference whether any right to  personal liberty  was in  existence prior  to  the enactment of  the Constitution,  either by  way of a natural right,  statutory   right,  common  law  right  or  a  right available under the law of torts. Whatever may be the source of the  right and  whatever may  be its  justification,  the right in  essence and  substance is  the right  to  personal liberty. That  rights having  been included in Part III, its enforcement will  stand suspended  if it is mentioned in the Presidential order issued under Article 359(1).      The view  which I have taken above as regards the scope and meaning  of Article  359(1)  affords  in  my  opinion  a complete answer  to the  contention of  the respondents that since Article  21 is not the 1) sole repository of the right to personal  liberty, the suspension of the right to enforce the right  conferred by that Article cannot affect the right to enforce the right of personal liberty which existed apart from that Article. I have held that on a true interpretation of the  terms of  the Presidential  order read  with Article 359(1), what  is suspended  is the  right to  move  for  the enforcement of  the right  to personal  liberty whether that right is  conferred by Constitution or exists apart from and independently of  it. Otherwise,  the Constitution  has only done much ado about nothing.      All the  same I  would like,  briefly, to deal with the argument of  the respondents  on its own merit, particularly the illustrations cited in support of that argument.      It is  true that  in view  of the  decision in the Bank Nationalisation case,(1)  the right conferred by Articles 21 and 19  cannot be  treated as  mutually exclusive.  But  the suspension of  the right  to enforce  the right  of personal

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liberty means  the suspension  of that  right wherever it is found unless  its content  is totally  different as from one Article to  another-. The "right conferred by Article 21" is only a description of the right of personal liberty in order to  facilitate   its  exact   identification  and   such   a description cannot  limit the  operation of the Presidential order to  those cases  only  where  the  right  to  personal liberty is claimed under Article 21.      The  circumstance   that  the  pre-Constitution  rights continued in  force after  the enactment of the Constitution in view  of Article 372 does not make any difference to this position because,  even  assuming  that  certain  rights  to personal  liberty   existed  before   the  Constitution  and continued thereafter  as they  were  not  repugnant  to  any provision      (1) [1970] 3 S. C. R. 530, 578 399 of the  Constitution, all  rights to personal liberty having the same  content as the right conferred by Article 21 would fall within the mischief of the Presidential order.      The theory  of ’eclipse’  has no  application  to  such cases  because;   that  theory  applies  only  when  a  pre- Constitution law  becomes  devoid  of  legal  force  on  the enactment of the Constitution by reason of its repugnancy to any provision  of the  Constitution. Such  laws are not void but they  are under  an eclipse  so long  as the  repugnancy lasts. When  the repugnancy  is removed, the eclipse also is removed and he law becomes valid.      As regards  the doctrine  of ’merger’ it is unnecessary to go  to the  length of  saying that  every prior  right to personal liberty  merged in  the right  to personal  liberty conferred by  Part III.  Whether it merged or not, it cannot survive the  declaration of suspension if the true effect of the Presidential  order is  the suspension  of the  right to enforce all  and every  right to  personal liberty.  In that view, it  would also make no difference whether the right to personal liberty arises from a statute or from a contract or from a constitutional provision contained in some Part other than Part III.      As regards  the illustrations, it is neither proper nor possible to  take each  one of  them separately  and  answer them. Hypothetical  illustrations cannot  establish a  point and practical  difficulties have  to be  solved as  and when they arise.  But some  of the  more important  illustrations taken by  the respondents’  counsel seem  to me  to  have  a simple answer.  For example,  when an accused challenges his conviction for  murder and  the sentence of death imposed on him for  that offence, his remedy by way of an appeal is not barred by  the Presidential  order because he is only trying to get  rid of  a judgment which holds him guilty of murder. It is  not he  who moved  the court for his personal liberty but it  is the prosecution which dragged him to the court to prove the  charge of  murder against  him. The  accused only defends the charge of criminality whether it is in the trial court or  in a  higher court.  Similarly,  if  a  person  is wrongfully confined,  the prosecution of the offender is not intended or calculated to secure the personal liberty of the victim he  court may in proper cases pass an order releasing the complainant  from  wrongful  confinement  but  the  true object of  the prosecution  is to  punish the person who has committed an  offence against  the penal law of the land. As regards decretal  rights against  the Government,  what  the decree-holder enforces  in execution  is not  his  right  to property. The  original cause of action Merges in the decree and therefor  what is  put  into  execution  is  the  rights

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arising under  the decree.  The illustration  regarding  The issuance of  a process  against the Governor of a State need not be  pursued seriously  because such  an event  is hardly ever likely  to happen  and id  it does,  the  gubernatorial rights may  possibly withstand  the Presidential order under Article 359(1)  . As  regards the flouting of the opinion of the Advisory  Board by  the Government,  a writ  of mandamus compelling the Government to obey the mandate of the law may perhaps stand  on a  different hooting as the very nature of such a  proceeding is  basically different.  Lastly,  it  is unrealistic  to  believe  that  after  the  passing  of  the Presidential order suspending the 400 existing constitutional  rights, Parliament would create new rights to  personal liberty  so as  to nullify the effect of the Presidential  order. The  easier way  for the Parliament would be to disapprove of the Proclamation of emergency when it is  placed before  it under  Article 352(2)  (b)  of  the Constitution or  to disapprove  of  the  Presidential  order issued under  Article 359(1)  when it  is placed  before  it under Article 359(3) of the Constitution. But as I have said earlier, it  is difficult  to furnish  a  clear  and  cogent answer to  hypothetical illustrations.  In  the  absence  of necessary facts  one can  only make  an ad  hoc answer, as I have attempted  to do  regarding the  possible issuance of a process against  the Governor  of a State. Actually, Article 361(3) speaks  of a "Process" for the arrest or imprisonment of a Governor issuing from any court. Fundamental rights can be  exercised   as   against   judicial   orders   but   the circumstances in which such  a process may come to be issued, if at all, may conceivably affect the  decision of  the question whether a presidential order issued  under Article  359(1) can bar the remedy of an aggrieved Governor.      In so far as the illustrative cases go, I would like to add that  Article 256 which was chosen by the respondents as the basis  of an  illustration cases  not seem to confer any right on  any individual.  That Article  appears in  Part XI which deals with relations between the Union and the States. A failure  to comply  with Article  256 may  attract serious consequences  but   no  court   is  likely  to  entertain  a grievances at the instance of the private party that Article 256 has  not been  complied with  by a  State Government. As regards the claim to personal liberty founded on a challenge to an  order on the ground of excessive delegation, I prefer to express no firm opinion though the greater probability is that such  a challenge  may fail  in face  of a Presidential order of the kind which has been passed in the instant case.      I have  held above  that the  existence of  common  law rights prior  to  the  Constitution  will  not  curtail  the operation of  the  Presidential  order  by  excepting  those rights from  the purview  of the  order. I  may add that the decision of  this Court  in Dhirubha  Devisingh Gohil v. The State of  Bombay(1) is an authority for the proposition that if  any  pre-Constitution  right  has  been  elevated  as  a fundamental right by its incorporation in Part III, the pre- existing  right   and  the   fundamental  right  are  to  be considered as  having been  grouped together  as fundamental rights "conferred"  by the  Constitution.  The  decision  in Makhan Singh  v. State of Punjab) also shows that once right to obtain  a direction in the nature of habeas corpus became in 1923 a statutory right to a remedy after the enactment of section 491  of the  Code of  Criminal Procedure, it was not open to  any party  to ask  for a writ of habeas corpus as a matter of common law.

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    It was  contended for  the respondents  that  the  High Court have jurisdiction under Article 226 to issue writs and directions not  only  for  the  enforcement  of  fundamental rights but  "for any  other  purpose"  and  since  by  their petitions they had really asserted their non-      (1) [1955] 1 S. C. R. 691.      (2) [1964] 4 S. C. R. 797, 818-819. 401 fundamental rights  the High  Courts had the jurisdiction to issue appropriate writs or directions upholding those rights in spite  of the Presidential order. This argument cannot be accepted because  the entire  claim of the resonants is that the order  of detention  are in violation of the MISA, which in substance  means that  the respondents have been deprived of their  personal liberty in violation of Article 21 of the Constitution. By  that Article, no person can be deprived of his life  or personal  liberty except according to procedure established by law. The grievance of the respondents is that they  have  been  deprived  of  their  personal  liberty  in violation of  the procedure established or prescribed by the MISA. In  substance therefor  they are  complaining  of  the violation of  a fundamental  right, which  it is not open to them to  do in  view of  the Presidential order by which the right to  move any  court for  the enforcement  of the right conferred by Article 21 has been suspended.      This judgment,  long  as  it  is,  will  be  incomplete without least  a brief  discussion of  some of the important decisions of  this Court  which were  referred to during the course of  arguments time  and again.  Before  doing  so,  a prefatory observation seems called for. The Earl of Halsbury L. C. said in Quinn v. Leathem(’) that the generality of the expressions which  may  be  found  in  a  judgment  are  not intended to be expositions of the whole law but are governed and qualified  by the  particular facts of the case in which such expression  are to be found. This Court in the State of orissa v.  Sudhansu  Sekhar  Misra  &  Ors.(2)  uttered  the caution that  it is  not a  profitable  task  to  extract  a sentence here and there from a judgment and to build upon it because the  essence of  the decision  is its  ratio and not every observation  found therein.  Counsel have not done any such shearing  but I  thought I  might beging  the study  of cases with I se1f-admonition.      A decision of this Court on which the greatest reliance was placed  by the  respondents is  Makhan Singh v. State of Punjab (3)  The appellants  therein were detained under Rule 30(l ) (b) of the Defence of India Rules made by the Central Government  under   section  3   of  the  Defence  of  India Ordinance, 1962.  They applied  for  their  release  to  the Punjab and  Bombay High Court under section 491(1)(b) of the Code of  Criminal Procedure?  their  contention  being  that certain section  of the  Defence of India Act and Rule 30(l) (b) of  the Defence  of India  Rules  were  unconstitutional since  they   contravened  their  fundamental  rights  under Articles 14,  21 and  22(4) (5) and (7) of the Constitution. The High  Court held  that in view of the Presidential order which was  issued on  November 3,  1962 under Art. 359(1) of the Constitution, the petitions of habeas corpusfiled by the appellants  were  barred.  Being  aggrieved  by  the  orders dismissing their  petitions, the  detenus filed  appeals  in this  Court   which  were  heard  by  a  Constitution  Bench consisting of  7 Judges.  The judgment  of the  majority was delivered  by  Ganjendragadkar  J.  Sulbba  Rao  J.  gave  a dissenting judgment.  (1) [1901] A. C. 495, 506.  (2) [1968] 2 S. C. R. 154, 163.

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(3) [1964l 4 S. C. R. 797.  28-833 Supr Cl/76 402      Both the majority and the minority judgments agree that the Presidential order would take away the right to move the Supreme Court  under Art.  32 and  the High Court under Art. 226 for  the enforcement  of the  rights  mentioned  in  the order. But  while  the  majority  took  the  view  that  the petition under  section 491  of the  Criminal Procedure Code was also  barred, Subha  Rao J.  held that  the petitioners’ right to  ask for  relief by  filing  an  application  under section 491 was not affected by the Presidential order. This difference in  the view  of the majority and the minority is now of no consequence as section 491 has ceased to be on the Statute Book  after April  1, 1974  when  the  new  Code  of Criminal Procedure came into force.      The conclusion  of the Court in Makhan Singh’s case may be summed up thus:      1.   Art.  359   is  reasonably  capable  of  only  one           construction  as   its  language   is  clear   and           unambiguous.      2.   The suspension of Art. 19 contemplated by Art. 358           removes during  the pendency  of the emergency the           fetters created  on the  legislative and executive           powers by  Art. 19  and if  the legislatures  make           laws or  the  executive  commits  acts  which  are           inconsistent with  the rights  guaranteed by  Art.           19, their validity is not open to challenge either           during the  continuance of  the emergency  or even           thereafter.      3.   As soon as the Proclamation ceases to operate, the           legislative enactments  passed and  the  executive           actions  taken  during  the  course  of  the  said           emergency shall  be inoperative  to the  extent to           which they  conflict with  the  rights  guaranteed           under Art.  19 because as soon as the emergency is           lifted,  Art.   19  which   was  suspended  during           emergency is  automatically revived  and begins to           operate.      4.   Art. 359,  on the  other hand,  does  not  purport           expressly  to   suspend  any  of  the  fundamental           rights. What the Presidential order purports to do           by virtue  of the power conferred of the President           by Art.  359 (  1 )  is to  bar the  remedy of the           citizens to  move any court for the enforcement of           the specified rights.      5.   The Presidential  order cannot widen the authority           of the  legislatures or  the executive;  it merely           suspends the  rights to  move any court to claim a           relief on  the ground that the rights conferred by           Part III  have been  contravened if the said right           are specified  in the  order. If at the expiration           of the  Presidential order,  Parliament passes any           legislation  to  protect  executive  action  taken           during the  pendency of the Presidential order and           afford indemnity  to the executive in that behalf,           the validity  and the  effect of  such legislative           action may have to be carefully scrutinised. 403      6.   The words  "the right  to move  any  court"  which           occur Art.  359(1) refer  to the right to move any           court of  . competent  jurisdiction including both           the Supreme Court and the High Court.      7.   In  determining  the  question  as  to  whether  a           particular proceeding falls within the mischief of

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         the Presidential  order or  not, what  has  to  be           examined  is  not  so  much  the  form  which  the           proceeding has  taken, or  the words  in which the           relief is  claimed, as the substance of the matter           and whether  before granting the relief claimed by           the citizen it would be necessary for the Court to           enquire into  the  question  whether  any  of  his           specified    fundamental    rights    have    been           contravened. If  any relief  cannot be  granted to           the citizen  without determining  The question  of           the alleged  infringement of  the  said  specified           fundamental rights  that  is  a  proceeding  which           falls under  Art. 359(1)  and would, therefore, be           hit by  the Presidential  order issued  under  the           said Article.      8.   The right  to ask  for a  writ in  the  nature  of           habeas cor  pus which could once have been treated           as matter  of Common  Law has  become a  statutory           right  after  1923,  and  after  section  491  was           introduced in  the Cr.  P. C.,  it was not open to           any citizen  in India  to claim the writ of habeas           corpus on  grounds recognised  by Common Law apart           from the provision of s. 491(1)(b) itself.      9.   Whether or  not the proceedings taken under s. 491           (1)  (b)   fall  within   the   purview   of   the           Presidential   order,   must   depend   upon   the           construction of  Art. 359 ( 1 ) and the order, and           in dealing  with this  point, one must look at the           substance of the matter and not its form.      10.  It is  true that  there are two remedies open to a           party whose  right of  personal freedom  has  been           infringed; he  may move the Court for a writ under           Art. 226(1)  of Art. 32(1) of the Constitution, or           he may take a proceeding under s. 491(1)(b) of the           Code. But  despite the fact that either of the two           remedies can  be adopted by a citizen who has been           detained improperly  or illegally, the right which           he claims  is the same if the remedy sought for is           based on  the ground  that there has been a breach           of his  fundamental rights;  and that  is a  right           guaranteed to the citizen by the Constitution, and           so, whatever  is the form of the remedy adopted by           the detenu,  the right  which  he  is  seeking  to           enforce is  the same.  Therefore  the  prohibition           contained in  Art.  359(1)  and  the  Presidential           order will  apply as  much to proceedings under s.           491(])(b) is  to those  under Art.,  226(1) & Art.           32(1).      11.  If the  detenu is  prohibited from  asking for and           order of  release on  account of  the Presidential           order, it would not 404           be open  to him to claim a mere declaration either           under A  s. 491  or under  Articles 32 or 226 that           the detention unconstitutional or void.      12.  The right  specified in  Art. 359(1)  includes the           relevant   right,   whether   it   is   statutory,           constitutional or constitutionally guaranteed.      After recording these conclusions the majority judgment proceeded to consider the question as to which are the pleas which are  open to  a person  to  take  in  challenging  the legality or  the propriety  of his  detention, either  under section 491  (  I  )  (b)  or  under  Art.  226(1  )  .  The conclusions of the Court on this question are as follows:-           (a)  "If  in   challenging  the  validity  of  his

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              detention order,  the detenu  is pleading any                right outside  the rights  specified  in  the                order, his  right to  move any  court in that                behalf  is   not  suspended,  because  it  is                outside Art.  359(1) and consequently outside                the  Presidential  order  itself."  (Emphasis                supplied) Accordingly if a detenu is detained                in violation  of the  mandatory provisions of                the Act  it would  be open  to him to contend                that his  detention is  illegal. "Such a plea                is outside  Art. 359(1)  and the right of the                detenu to  move for  his release  on  such  a                ground cannot be affected by the Presidential                order.’‘           (b)  The exercise  of a  power malafide  is wholly                outside the  scope of  the Act conferring the                power  and‘   can  always   be   successfully                challenged.           (c)  It is  only in  regard to that class of cases                falling under s. 491(1)(b) where the legality                of the  detention is  challenged  on  grounds                which  fall   under  Art.   359(1)  and   the                Presidential order that bar would operate. In                all other  cases falling  under s. 491(1) the                bar would  be  inapplicable  and  proceedings                taken on behalf of the detenu will have to be                tried in accordance with law.           (d)  If  a  detenu  contends  that  the  operative                provision  of  the  law  under  which  he  is                detained suffers  from the  vice of excessive                delegation and  is, therefore. ill valid, the                plea thus  raised by the detenu cannot at the                threshold  be   said  to  be  barred  by  the                Presidential order.  In terms, it is not plea                which is  relatable to the fundamental rights                specified in  the said  order. lt  is a  piea                which is  independent of  the said rights and                its validity  must be  examined. (The  Court,                however, rejected  the  contention  that  the                impugned provisions  of the Act suffered from                the vice of excessive delegation.) 405      No judgment  can be  read as if it is a statute. Though the judgment of the majority contain the conclusions set out in (a)  to (d)  above, I see no doubt that these conclusions owe their  justification to  the  peculiar  wording  of  the Presidential order  which was issued in that case. The order dated November  3, 1962,  which was  the subject  matter  of Makhan Singh’s  case, has  been set  out at the beginning of this judgment.  That order suspends the right of a person to enforce the  rights conferred by Articles 14, 21 and 22 "if. such person  has been  deprived of any such rights under the Defence of  India Ordinance, 1962 (4 of 1962) or any rule or order made  thereunder". The  Presidential order  dated June 27, 1975  with which  we are  concerned in  the instant case docs not  contain ally  clause similar  to the one extracted above from  the order  dated November 3, 1962. The inclusion of that  clause ill  the earlier  order  has  a  significant impact on  the question  under consideration  because, under the earlier  Presidential order  the right to Move the court was taken  away only i-f a person was deprived of his rights under the  Defence of  India ordinance  or under any rule or order made under the ordinance. A petition for habeas corpus file(l during  the operation of the Presidential order dated November 3,  1962   was not  barred at the threshold because

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the detenu was entitled to satisfy the court that though his detention  purported  to  be  under  the  Defence  of  India Ordinance or  the Rules  it was  in fact  not so. The detenu could establish  this  by  satisfying  the  court  that  the detaining authority  had no power to detain him, which could be shown  by pointing  out that  the pre-conditions  of  the power to  detain were not fulfilled. It was also open to the petitioner to  establish that the order was vitiated by mala fides because  a mala fide order has no existence in the eye of law  and mala  fides would  take the  order  out  or  the statute.      The same  state of  affairs  continued  under  the  two subsequent Presidential  orders dated November 16, 1 974 and December 23  , l974.  All the  three orders were conditional and were  dependent for their application on the fulfillment of the  condition that  the person concerned was deprived of his rights  under the Defence of India ordinance or any rule or order  made under  it. The Presidential order of June 27, 1975 makes  a conscious  and deliberate  departure from  the three earlier  orders, the object obviously being to deprive the detenu  of the  argument that he has been detained under an  order   only  purports  to  have  been  passed  under  a particular Act  but is  ill fact  n derogation  thereof, the terms of the Act having not been complied with. The order of June 27, 1975 is not subject to ally condition-precedent for its application  and, therefore, there is no question of the detenu satisfying  the court  that any  pre-condition of the power  of   detention  has   not  fulfilled.   Some  of  the observations in  Makhan Singh case may appear to support the argument that  certain pleas  which are refferred to therein are outside  the scope of Article 359(1) itself. Which great respect, those  observations really  mean that the pleas are outside the  Presidential order.  Article 359(1)  is only an enabling provision  and the  validity of  a plea  cannot  be tested which  reference to that Article. The right to move a court for  the enforcement  of the  rights conferred by Part III is not taken away by Article 359 (1) 406 It is  the Presidenial  order passed  in  pursuance  of  the powers  conferred   by,  that   Article  by   which  such  a consequence can be brought about.      It would  be useful  in this connection to refer Lo the decision of  this Court in Dr. Ram Manohar Lohia v. State of Bihar &  ors.(’) The  appellant therein  was  also  detained under rule 30(l)(b) of the Defence of India Rules, 1962, and he moved this Court under Article 32 of the Constitution for his release.  the petition  was argued  on the basis that it was filed  for the  enforcement of  the  right  to  personal liberty under  Articles 21  and 22  of the  Constitution.  A preliminary objection was raised on behalf of the Government that the  petition was  barred by reason of the Presidential order dated  November 3, 1962, the same as in Makhan Singh’s case  (supra)  Sarkar  J.,  who  shared  the  majority  view repelled  the  preliminary  objection  by  saying  that  the petition could  have been  dismissed at the threshold if the order of  November 3,  1962 were  to take away all rights to personal liberty  under Articles 21 and 22. According to the learned Judge,  the particular Presidential order did not do so in  that, it  was a  conditional order  which deprived  a person of his right to move a court for the enforcement of a right to  personal liberty  only if he was deprived of it by the Defence of India Act or any rule or order made under it. "If he  has not  been so  deprived, the  order does not take away his  right to  move a  court." This  shows that  if the first Presidential order was unconditional like the order in

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the instant  case, Dr.  Lohia’s  petition  would  have  been rejected by  this Court  at the  threshold. The  judgment of Hidayatullah J.,  who on  behalf of  himself and Bachawat J. concurred with  the view  of Sarkar  J., also shows that the conditional Presidential  order left an area of inquiry open as to  whether the action was taken by a competent authority and was  in accordnce  with the Defence of India Act and the rules made thereunder.      Yet another  case arose  under  rule  30(l)(b)  of  the Defence of India Rules, 1962 involving the interpretation of the first  Presidential order  dated November  3, 1962. That case is  K.  Anandan  Nambiar  &  Anr  v.  Chief  Secretary, Government of  Madras &  ors.(2) Gajendrgadkar  C.  J.,  who delivered the judgment of the Constitution Bench referred to Makhan Singh’s  case and pointed out that the sweep of the.. Presidential order dated November 3, 1962 was limited by its last clause  and, therefore,  it was  open to  the detenu to contend that  the order  of detention  was contrary  to  the conditions prescribed in that behalf by the Defence of India Act or the rules made thereunder      In  State   of  Maharashtra   v.  Prabhakar   Pandurang Sangzgiri &  Anr.(3) the  respondent, who was detained under an order  passe under  section 30(l)  (b) of  the Defence of India  Rules,   1962,  sought   permission  from  the  State Government for  publishing a book which he had written while ill jail. On the Government refusing the per-  (1) [1966] 1 S. C. R.709  (2) [1966] 2 .S.C.R.406.  (3) [1966] 1 S.C.R.702 407 mission, he  filed a  petition  under  Article  226  of  the Constitution for  an appropriate  direction and  after  that petition was  allowed by the A High Court, the Government of Maharashtra filed an appeal in this Court. Subba Rao J., who delivered  the   judgment  of   the  Bench,  observed  while dismissing the  appeal  that  the  President’s  order  dated November 3,  1962 was a conditional order and, therefore, if a person  was deprived of his personal liberty not under the Act or  a rule or order made thereunder but in contravention thereof, his  right to  move the  court in that regard would not be suspended.      These judgments  bring out  clearly the ratio of Makhan Singh’s case which arose out of the first Presidential order dated November 3, 1962. The Presidential order with which we are concerned in The instant case is not subject to the pre- condition that  the detenu  should have been deprived of his rights under  any particular Act and, therefore, there is no scope for  the inquiry whether the order is consistent or in conformity  with   any  particular   Act.   This   important distinction has  not been  fully appreciated  in some of the judgments under appeal.      The observations  contained in the majority judgment in Makhan Singh’s  case that  the exercise of a power mala fide is wholly  outside the scope of the Act conferring the power and can always be successfully challenged at once raises the question whether  in spite  of the  Presidential order dated June 27, 1975 it is open to the respondents to show that the order of  detention in  any particular  case is  vitiated by mala fides.  The proposition  that a  mala fide order has no existence in  the eye  of law  is  not  peculiar  to  Makhan Singh’s case  but has  been accepted in various decisions of this Court,  two of them being Jaichand Lall Sethia v. State of West  Bengal   or.(2), and  Durgadas Shirali  v. Union of India &  ors.(2) A  mala fide  exercise of  power  does  not necessarily imply  ’any moral  turpitude and  may only  mean that the  statutory power  is exercised  for purposes  other

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than those  for which  the power  was intended  by law to be exercised.  In  view  of  the  fact  that  an  unconditional Presidential order  of the  present kind  affects the  locus standi  of   the  potitioner  to  move  any  court  for  the enforcement of  any of  his fundamental  rights mentioned in the order,  it would  not be  open to  him to  show that the statutory power  has been exercised for a purpose other than the one  duly appointed under the . So long as the statutory prescription can  be seen  on the  face of the order to have been complied  with, no further inquiry is permissible as to whether the order is vitiated by legal mala fides.      As regards  mala fides  in the sence of malice-in-fact, the same  position must  hold good  because the Presidential order operates  as a  blanket ban  on any and every judicial inquisition into the validity of the detention order. Makhan Singh’s case  as also  Jaichand Lall  Sethia’s and  Durgadas Shirali’s arose  under the  Defence of India Rules, 1962 and the relevant  Presidential order  which applied  was the one dated November  3, 1962 which, as stated above, was a condi- H  (1)[1966] Supp.S.C.R.464.  (2)[l966] 2 S.C.R.573. 408 tional order.  If in  any given  case an  order of detention appears on the very face of it to be actuated by an ulterior motive, the  court would  have jurisdiction  to set it aside because no  judicial inquiry  of any  sort is required to be undertaken in  such a  case.  But  short  of  such  ex-facie vitiation, any challenge to a detention order or. the ground of actual mala fides is also excluded under the Presidential order dated June 27, 1975.      Section 16A(9)  of the MISA which was introduced by the Third Amendment Ordinance, 16 of 1975, with effect from June 29, 1975  must make a significant difference to the question whether in  spite of the Presidential order, it is open to a detenu to  challenge hi  detention on  the  ground  of  make files.  Prior  to  the  enactment  of  section  16A(9),  the detaining authority  was under  an obligation  by reason  of section 8(1)  of the  MISA to  communicate to the detenu the grounds of  detention. The  only exception  was as stated in section 8  (2 ),  that  the  detaining  authority  need  not disclose facts  which it  considers to be against the public interest to  disclose. Section  16A(l) provides that the pro visions of  section 16A  shall have effect during the period of operation of Proclamation of Emergency issued on December 3, 1971  and on  June 25,  1975 or for a period of 12 months from June 25, 1975 whichever period is the shortest. By sub- section (2) of section l6A, the case of every person against whom an  order of  detention was  made under  the MISA on or after June  25, 1975  but before the commencement of section 16A on  June 29,  1975 is  required to  be reviewed  by  the appropriate  Government   for  the  purpose  of  determining whether the  detention  of  such  person  is  necessary  for dealing effectively with the emergency. the answer be in the affirmative,  the   Government  is   required  to   make   a declaration to  that effect  By sub-section (3), whenever an order of detention is made under the Act after June 29, 1975 the officer making the order of detention or the appropriate Government is  similarly required  to consider  whether  the detention  of   the  persons   is  necessary   for   dealing effectively with  the emergency.  If  so  a  declaration  is required to  be made  to that  effect. Sub-section (9)(a) of section 16A  provides that  the grounds on which an order of detention is  made against  any person  in respect of whom a declaration is made under sub-section (2) or sub-section (3)

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of section  16A and  any information  or materials  on which such grounds are based "shall be treated as confidential and shall be  deemed to  refer to  matters of  State and  to  be against  the   public  interest  to  disclose  and  save  as otherwise provided  in this Act, no one shall communicate or disclose any  such grounds,  information or  material or any document containing  such ground,  information or material." Clause (b)  of section  16A  (9)  provides  that  no  person against whom an order of detention is made under sub-section (1) of  section 3  shall be entitled to the communication or disclosure of  any such  ground, information or material, as is referred  to in  clause (a)  or the  production to him of ally  document   containing  such   ground,  information  or material. 409      I will  deal  with  the  constitutionality  of  section 16A(9) later  but on  the assumption that it is valid, it is plain that  not only  is a  detenu in  regard  to  whom  the necessary declaration  is made  not entitled to be furnished with the grounds of detention or the material or information on which  the grounds  are based, but neither the Government nor  the   officer  passing   the  order  of  detention  can communicate or disclose the grounds, material or information they are deemed to refer to matters of State and against the public interest  to  disclose  In  view  of  this  cast-iron prohibition, it  is difficult  to see  how, at  least  those detenus falling  within sub-sections  (2) and (3) of section 16A can  possibly establish,  even prima  facie a  charge of factual mala fides It is the grounds of detention from which generally a plea of mala fides is spelt out and if the court has access to the grounds, the material and the information, it becomes possible to unravel the real motive of detention. on the absence of these aids, a charge of fides can only The a  fling  in  the  air  and  cannot  hope  to  succeed.  The observation in  Makhan Singh’s  case,  therefore,  that  the exercise, of  a power  mala fide  can always be successfully challenged could  not apply  to  cases  falling  under  sub- sections (2)  and (3)  of section  16A,  by  reason  of  the provisions contained in sub-section (9) of that section.      Turning  to  the  constitutional  validity  of  section 16A(9), the contention of the respondents is that clause (a) of section  16A(9) by which the grounds of detention and the information and  materials on  which the  grounds are  based shall be  treated as  confidential and  shall be  deemed  to refer to  matters of  State and  to be  against  the  public interest to  disclose is  not a genuine rule of evidence but is designed  to encroach  upon the  jurisdiction of the High Courts  under  Article  226  of  the  Constitution  and  is, therefore, void.  It is urged that the amendment made by the Parliament in the exercise of its ordinary legislative power comes  into   direct  conflict   with   the   High   Court’s jurisdiction  under   Article  226   because  it   would  be impossible for any High Court to consider the validity of an order of  detention when  a petition for habeas corpus comes before it,  if the  law  prohibits  the  disclosure  of  the grounds  of  detention  and  the  necessary  information  or materials to the High Court.      It is a relevant consideration for examining the charge that the  true purpose  of section  16A(9) is to encroach on the powers  of the  High Court  under Article  226, that the operation of  section 16A  itself is  limited to  the period during  which  the  two  proclamations  of  emergency  dated December 3, 1971 and June 25, 1975 are in operation or for a period of  12 months  from June 25, 1975 whichever period is the shortest.  Following the proclamations of emergency, the

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President has  issued orders  under Article  359 (1)  By the order dated  Junc 27,  1975 the  very locus  standi  of  the detenu to enforce any of his fundamental rights mentioned in the Presidential order is taken away and consequently, there is no  matter of substance into which the High Courts in the exercise  of   their  writ   jurisdiction  can  legitimately inquire. The  injunction contained in section 16A(9) is from this point  of view  innocuous, for  it purports to create a check 410 on a power which for all practical purposes has but a formal existence. Section  16A(9) is  in aid  of the constitutional power conferred  by Article  359(1) and  further effectuates the purpose  of the  Presidential order  issued  under  that Article. If so it cannot be declared unconstitutional.      Quite apart  from this  position, I  am unable to agree that the  rule enunciated in section 16A(9) is not a genuine rule of  evidence. It is true that grounds of detention used to be  disclosed before  the emergence of section 16A(9) but that does  not mean  that the  grounds on which the order of detention is  based or the information or materials on which the grounds are based are not or cannot be of a confidential nature. More  likely than  not, such  grounds, material  and information would  be of  a confidential  nature relating to matters of  State which would be against the public interest to disclose. Instead of leaving each individual matter to be judged under  section 123 of the Evidence Act by the Head of the Department  concerned, who  can  give  or  withhold  the permission as he thinks fit, Parliament would appear to have considered that  since the grounds, material and information in detention cases are of a confidential nature, it would be much more  satisfactory to provide that they shall be deemed to refer to matters of State.      If section 16A(9) is unconstitutional so would sections 123, 124  and 162 of the Evidence Act. Section 123 gives the necessary  discretion   to  the   Head  of   the  Department concerned. By  reason of  section 124, the High Court cannot compel any public officer to disclose communications made to him in official confidence if the officer considers that the public interest  would suffer  by the disclosure. By section 162, the  High Court  cannot inspect a document if it refers to matters  of State. But these provisions do not constitute an invasion  of the  High Court’s jurisdiction under Article 226. The  writ jurisdiction  of the  High Court  under  that Article has  to be exercised consistently with the laws made by  competent   legislatures  within   the  area   of  their legislative power.  I do  not think  that it  is open to any High Court  to say  that the  law may be otherwise valid but since it interferes with the High Court’s power to undertake the fullest  enquiry into  the matter  before  it.  the  law becomes unconstitutional. The principles of res judicata and estoppel, the  conclusive presumptions  of law  and  various provisions of  substantive law deny a free play to courts in the exercise  of their  jurisdiction. These are not for that reason unconstitutional  qua the  High Court’s  jurisdiction under Article 226.      Counsel for  the  respondents  cited  the  parallel  of section 14  of the  Preventive Detention Act, 1950 which was struck down  by this Court in A. K. Gupalan v. The State(1). Sub-section (1)  of that section provided, in substance,that no court  shall, except  for  certain  purposes.  allow  any statement to  be made  or any evidence to be given before it of the  substance of  any communication  of the  grounds  on which a  detention order  was made  against any person or of any representation  made by  him. Sub-section (2) of section

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14 made it an offence for  (1) [1950] S.C. R. 88. 411 any person  to disclose  or  publish  without  the  previous authorization of  the  Government  any  contents  or  matter purporting  to   be  contents   of  any   communication   or recpresentation referred to in sub-section (1). The right to enforce Article  22 of the Constitution was not suspended by any Presidential  order when  Gopalan’s ease was decided and therefore the  court  was  entitled  to  find  whether  that Article was  complied with.  The limits  of judicial  review have to  be co-extensive  and commensurate with the right of an aggrieved  person to  complain of  the inversion  of  his rights. Since  in Gopalan’s  case, it was open to the detenu to contend  that the  grounds of  detention did not bear any connection with  the  order  of  detention,  the  Court  was entitled to  examine  the  grounds  in  order  to  determine whether the  plea of the detenu was well-founded. As section 14 debarred  the court  from examining the material which it was entitled  under the  Constitution  to  examine,  it  was declared ultra vires. (See pages 130-131, 217- 218, 244, 285 and  333).  In  the  instant  ease  the  Presidential  order deprives the  respondents of  their very  locus  standi  and therefore section  16A(9) cannot  be said  to  shut  out  an inquiry which  is other  wise within the jurisdiction of the High Court to make.      Reliance WAS  also placed  by the  respondents  on  the decision of  this Court in Mohd. Maqbool Danmool v. State of Jammu and  Kashmir(’) in  which it  was  observed  that  the proviso to  section 8,  which was  inserted by the Jammu and Kashmir Preventive  Denotation (Amendment)  Act, 1967, would have been  unconstitutional if  it had  the same  effect  as section 14 of the Preventive Detention Act was found to have in Gopalan’s case Damnoo’s case did not involve any question of privilege  at all  and in  fact  the  relevant  file  was produced by  the Government  for the  perusal  of  the  High Court. The  case also  did not  involve any  question  under Article 359(1)  and the  effect of  a provision like section 16A(9) was not even hypothetically considered the Court.      The view  of the  Bombay High Court that section 16A(9) may be  read down  so as  to enable the court to examine the forbidden material  is impossible to sustain. What use can a court make  of material  which it  cannot  disclose  to  the detenu and how can it form a judicial opinion on matters not disclose to  a party  before it?  The  High  Court,  at  the highest,  could   satisfy  its   curiosity  by  tasting  the forbidden fruit  but its  secret scrutiny of the grounds and of the file containing the relevant information and material cannot enter into its judicial verdict. G      I am,  therefore of the opinion that the challenge made by the  respondents  to  the  constitutionality  of  section 16A(9) must fail.      Section 18  need not  detain me  long because it merely declares that  no person who is detained under the Act shall have any  right to personal liberty by virtue of natural law or common  law,  any. the ’natural law’ theory was discarded in Kesavanadun Bharati’s(’)  (1) [1972] 2 S. C. R. 1014.  (1) [1973] Supp. S. C. R. I. 412 case and  likewise the  common law  theory was  rejected  in Makhan Singh’s  case. The section only declares what was the true law  prior to  its enactment  on  June  25,  1975.  The amendment of section 18 by the substitution of the words "in respect of  whom all  order is  made on purported to be made

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under section  3" in place of the words ’detained under this Act" does  not render the section open to a challenge on the ground of  excessive delegation.  The words "purported to be made" have  been inserted  in order to obviate the challenge that the  detention is  not in  strict conformity  with  the MISA. Such  a challenge  is even  otherwsie barred under the Presidential order. The object of the added provision is not to encourage  the passing of lawless orders of detention but to protect  during emergency orders which may happen to be S in  less   than  absolute  conformity  with  the  MISA.  The executive is  bound at  all times to obey the mandate of the legislative but the Presidential order bars during a certain period the  right to  complain of  any deviation  from  that rule.      In numerous  cases detenus  have been  released by this Court and by the High Courts on. the ground that there is no nexus between the grounds of detention and the object of the law under  which the  order of detention is made or that the acts complained of are too distant in point of time to raise an apprehension  that the  past con  duct of  the detenu  is likely to  project itself into the future or that the ground are  too   vague  for   the  formation  even  of  subjective satisfaction   or    that    irrelevant    and    extraneous considerations have  materially influenced  the mind  of the detaining authority.  On some few occasions detention orders have also  been set  aside on  the ground  of  factual  mala fides. An  unconditional Presidential order obliterates this jurisprudence by  striking at  the very  root of the matter. locus of  the detenu  is its chose in target and it deprives him of  his  legal  capacity  to  move  any  court  for  the vindication of  his rights  to  the  extant  that  they  arc mentioned in  the Presidential  order. In  their passion for personal  liberty   courts  had   evolved,   carefully   and laborously, a  sort of  "detention jurisprudence"  over  the years with  the sale  object of  ensuring that the executive does not  transcend its  duty under the law. In legal theory that obligation  still remains  but its  violation will  now furnish no  cause of action. at least to an extent. and to a significant extent. Amidst the clash of arms and conflict of ideologies, laws  will now  be silent  but in times when the Nation is  believed to  be going  through great  strains and stresses, it  may be necessary to entrust sweeping powers to the State.  And it is no smail comfort that those powers are granted with  the consent  of the  Parliament. The people of this country  are entitled  to expect  when they  go to  the ballot-box  that   their  chosen  representatives  will  not willingly suffer an erosion of the rights of the people. And the Parliament.  while arming  the executive  with great and vast powers of Government, may feel fairly certain that such powers will  be reasonably exercised. The periodical reviews of detention orders. the checks and counter-checks which the law provides and above all 413 the lofty  faith in democracy which ushered the birth of the Nation will,  h l hope, eliminate all fear that great powers are capable of the greatest abuse. Ultimately, the object of depriving a  few of their liberty for a temporary period has to be to give to many the perennial fruits of freedom.      I find  it not  so easy  to summarize my conclusions in simple, straightforward  sentences.  The  many-sided  issues arising before  us do  not admit  of a  monosyllabic answer- ’yes’,  or   ’no’.  All   the  same  these  broadly  are  my conclusions:           (1)  The order issued by the President on June 27,                1975 under Article 359(1) of the Constitution

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              does not  suspend the  fundamental  principle                that  all  executive  action  must  have  the                authority of  law to support it. Nor does the                Presidential order  give to  the executive  a                clatter to  disobey  the  laws  made  by  the                Parliament, which  is the  supreme law-making                authority.           (2)  The aforesaid  Presidential  order,  however,                deprives a person of his locus standi to move                any court,  be it  the Supreme  Court or  the                High  Court,   for  the  enforcement  of  his                fundamental rights which are mentioned in the                order. Such deprivation or suspension ensures                during the  period that  the Proclamation  of                Emergency is  in force  or for  such  shorter                period as may be specified in the order.           (3)  The dominant  purpose of  the petitions filed                by the  respondents in  the High Courts is to                obtain an  order of release from detention by                enforcing the  right to personal liberty. The                purpose is  not to  obtain a mere declaration                that the  order of  detention is  ultra vires                the Act  under which it is passed. The former                plea is  barred by reason of the Presidential                order. The latter plea is also barred because                regard must  be had  to the  substance of the                matter and  not to  the  form  in  which  the                relief is asked for.           (4)  The Presidential  order dated  June 27,  1975                baring  investigation  or  inquiry  into  the                question whether  the order  of detention  is                vitiated by  mala fides  factual or legal, or                whether   it    is   based    on   extraneous                considerations  or   whether  the   detaining                authority   had    reached   his   subjective                satisfaction validly  on proper  and relevant                material.           (5)  Whether or not Article 21 of the Constitution                is  the  sole  repository  of  the  right  to                personal liberty,  in a petition filed in the                High  Court   under  Article   226   of   the                Constitution for  the  release  of  a  person                detained under  the MISA, no relief by way of                releasing the  detenu can  be granted because                no person  has the legal capacity to move any                court to ask for such 414                relief. The  Presidential  order  takes  away                such legal  capacity by  including Article 21                within  it.   the  source  of  the  right  to                personal liberty  is immaterial  because  the                words" "conferred  by" which  occur i Article                359(1) and  in the Presidential order are not                words of limitation.           (6)  The Presidential  order does  not bring about                any amendment  of Article 226 and is not open                to challenge on that ground.           (7)  The Presidential order neither bars the right                of an  accused to defend his personal liberty                in the court of first instance or in a higher                court, nor  does  it  bar  the  execution  of                decrees passed  against the  Government,  nor                does it bar the grant of relief other or less                than  the   release  of   the   detenu   from                detention.

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         (8)  Section   16A(9)   of   the   MISA   is   not                unconstitutional  on   the  ground   that  it                constitutes  an   encroachment  on  the  writ                jurisdiction of  the High Court under Article                226. There  is no  warrant for  reading  down                that section  so as  to allow  the  court  to                inspect the  relevant files  to the exclusion                of all other parties.           (9)  Section 18  of the  MISA does not suffer from                the vice  of excessive  delegation and  is  a                valid piece of legislation.      And  so   we  go   back  to   The  Zamora(1)’,  Rex  v. Holliday(2), Liversidge  v. Anderson(3), Greene v. Secretary of State(’).  A jurisdiction of suspicion is not a forum for objectivity.  "These   who  are   responsible  for  national security must  be the  sole  judges  of  what  the  national security requires";  "However precious  the personal liberty of the  subject may  be, there is something for which it may well be,  to some  extent, sacrificed  by  legal  enactment, namely, national success in the war, or escape from national plunder or  enslavement". As  a  result,  perhaps  the  only argument which  the  court  can  entertain  is  whether  the authority which  passed  the  order  of  detention  is  duly empowered  to  pass  it,  whether  the  detenu  is  properly identified and  whether on  the face of the order the stated purpose of  detention is  within the  terms  of  law.  These questions, in almost all cases, will have an obvious answer.      Counsel after  counsel expressed  the fear  that during the emergency,  the executive  may whip and strip and starve the detenu and if this be our judgment, even shoot him down. Such misdeeds  have not  tarnished the  record of Free India and I  have a  diamond-bright, diamond-hard  hope that  such things will never come to pass.  (1) [1916] 2 A. C. 77  (2) [1917] A. C. 260, 271.  (3) [1942] A. 206.  (4) [l942] A. 284. 415      BHAGWATI,  J.-These  appeals  by  special  leave  raise issues of  gravest constitutional  importance.  They  affect personal liberty which is one of our most cherished freedoms and impinge  on the  rule of  law which  is one of the great principles that lies at the core of constitutional democracy and gives  content to  it. Does  a Presidential  order under Article 359,  clause (1)  specifying Article  21 silence the mandate of  the law and take away personal liberty by making it unenforceable  in  a  court  of  law,  or  does  judicial scrutiny  of  legality  of  detention  stand  untouched  and unimpaired, so  that, despite  such  Presidential  order,  a person who  is illegally  detained can  seek his  freedom by invoking  the   judicial  Process.  That  is  the  anodizing question before the Court.      The facts  giving rise to these appeals have been fully set out  in the judgment of my Lord the Chief Justice and it is not  necessary for  me to reiterate them as nothing turns on the  facts. None of the writ petitions out of which these appeals arise  has in  fact  been  finally  disposed  of  on merits. Barring the writ petitions before the Rajasthan High Court and  the Nagpur  Bench of the Bombay High Court, where one  additional  question  has  been  considered,  the  only question that has been decided in these writ petitions is as to their  maintainability. in view of the Presidential order dated 27th  June, 1975  issued under Article 359, clause (1) of the  Constitution. The  High Courts  of Allahabad, Madhya Pradesh, Andhra  Pradesh, Delhi, Karnataka and Rajasthan and

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the Nagpur  Bench of the Bombay High Court before whom these writ petitions  were heard  on the  preliminary issue  as to maintainability, took  the view that the Presidential order, dated  27th   June,   1975,   did   not   wholly   bar   the maintainability of  these petitions,  but left  open certain grounds of  challenge which  could yet  be urged against the validity of  the order  of detention.  These different  High Courts were  not  agreed  upon  what  were  the  grounds  of challenge which  were thus available to an applicant despite the Presidential  order dated  27th June,  1975. There  were differences of  opinion amongst them, but for the purpose of the present  appeals, it  is not necessary to refer to those differences as  they are  not material.  The Rajasthan  High Court and  the Nagpur  Bench of  the Bombay  High Court also considered the  interpretation and  validity of section 16A, sub-section (9) of the Maintenance of Internal Security Act, 1971  and  while  the  Rajasthan  High  Court  accepted  the interpretation of  that sub-section  canvassed on  behalf of the  Government   and  upheld  its  validity  even  on  that interpretation, the  Nagpur Bench  of the  Bombay High Court held the  sub-section to  be valid  by reading it down so as not to exclude the power of the High Court under Article 226 of the Constitution to call for the grounds, information and materials on  which the  order of detention was based. Since in the  view of  these High Courts, the writ petitions filed by the  detenus were maintainable, though on certain limited grounds  of  challenge,  each  of  the  writ  petitions  was directed to  be set  down for hearing on merits. There- upon each of  the aggrieved  State Governments  obtained  special leave to  appeal against  the decision of the concerned High Court and  that is  how the present appeals have come before this Court. 416      Two questions arise for consideration in these appeals. They have  been formulated  by the  learned Attorney General appearing on  behalf of  the Union of India in the following terms:           (1)  Whether, in  view of  the Presidential  order                dated June  27,  1975  under  clause  (1)  of                Article 359,  any writ petition under Article                226 before  a High Court for habeas corpus to                enforce the  right to  personal liberty  of a                person detained under MISA on the ground that                the  order  of  detention  or  the  continued                detention is  for any reason, not under or in                compliance With MISA is maintainable ?           (2)  If such  a petition  is maintainable, what is                the scope  or extent  of  judicial  scrutiny,                particularly,   in    view   of   tile   said                Presidential order  mentioning,  inter  alia,                clause (5)  of Article 22 and also in view of                sub-section (9) of section 16A of MISA?      So far  as the  second question is concerned, it may be pointed out  straightaway that  the learned Attorney General with his  usual candor conceded that if his first contention in regard  to maintainability  of a writ petition for habeas corpus is  not  accepted  and  the  writ  petition  is  held maintainable, the area of judicial scrutiny would remain the same as  laid down  in the  decisions of this Court, subject only to  the qualification that the grounds, information and materials, on  which the  order of detention is based, would not be  available either  to the detenu or to the High Court by  reason   of  suspension  of  enforcement  of  the  right conferred by  clause (S)  of Article 22 and the enactment of section 16A,  sub-section (9) of the Maintenance of Internal

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Security Act,  1971. The  only point which would, therefore, require to  be considered  under the  second question  is in regard to the interpretation and validity of sub-section (9) of section 16A.      Before we  proceed to consider the first question which turns  on   the  true   interpretation  and  effect  of  the Presidential order  dated 27th  June, 1975, it would help to place the  problem in  its proper  perspective if  we  first examine what  is  an  emergency  and  how  institutions  and procedures  different   from  those   in  normal  times  are necessary to  combat it.  It would  be both  profitable  and necessary to  embark upon this inquiry, because Article 359, clause (1)  under which  the Presidential  order dated  27th June, 1975  has been  issued is  a  consequential  provision which comes  into operation when a Proclamation of emergency is issued  by the President under Article 352. It is evident that a  national emergency  creates problems for a democracy no  less   than  for   other  governments.   A  totalitarian Government   may    handle   such    a   situation   without embarrassment. But the apparent necessities evoked by danger often conflict gravely with the postulates of constitutional democracy. The question arises-and that was a question posed by Abraham Lincoln on July 4, 1861: can a democ- 417 ratic  constitutional   government  beset   by  a   national emergency be  strong enough  to maintain  its own  existence without at  the same  time being so strong as to subvert the liberties of  the people  it has  been instituted to defend. This question is answered affirmatively by the incontestable facts of  history if  we have  regard to  the experience  of emergency governments  of three large modern democracies-the United States,  Great Britain and France. There is no reason why the  Indian experience should be otherwise, if the basic norms of constitutionalism in assumption of emergency powers are observed. What are these basic norms in a constitutional democracy and  what is  the  purpose  behind  assumption  of emergency  powers   are  matters  which  I  shall  presently discuss. But  before I do so, let me first consider what are the different  types  of  emergency  which  may  plague  the government of a country.      There are  three types  of crisis  in  the  life  of  a democratic  nation,   three  well  defined  threats  to  its existence both  as nation  and democracy. The first of these is war,  particularly a  war to repel invasion when "a State must convert  its peace-time political and social order into a war-time  fighting machine  and over-match  the skill  and efficiency of  the enemy". There may be actual war or threat of war  or preparations  to meet imminent occurrence of war, all of  which may  create a  crisis situation of the gravest order. The  necessity of  concentration of greater powers in the Government  and of  contraction of  the normal political and social  liberties cannot  be disputed  in such  a  case, particularly when the people are faced with a grim horror of national  enslavement.   The  second  crisis  is  threat  or presence of  internal subversion  calculated to  disrupt the life of  the country  and jeopardize  the  existing  of  the constitutional government.  Such activity  may stem  from  a variety of  causes. Perhaps the most common is disloyalty to the existing  form of  government, often  accompanied  by  a desire to effect changes by vio1ent means. Another cause may be strong  disaffection with  certain  government  policies. Communal demands for States within the Federal on linguistic or religious  lines may  fall within  this category.  Or the presence  of  powerful  lawless  elements  with  perhaps  no political motivation,  but for  various reasons  beyond  the

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scope of  ordinary machinery  of the  law, may  give rise to this problem.  The third crisis, one recognised particularly in  modern   times  as   sanctioning  emergency   action  by constitutional government,  is break down or potential break down of  the economy. It must be recognised that an economic crisis is  as direct  a  threat  to  a  nation’s  continuing constitutional existence  as a  war or  internal subversion. These are  three kinds  of emergencies  which may ordinarily imperil the existence of a constitutional democracy.      Now,  it   is  obvious   that  the  complex  system  of government  of   a  constitutional   democratic   State   is essentially  designed  to  function  under  normal  peaceful conditions and  is often  unequal to  the  exigencies  of  a national crisis. When there is an emergency arising out of a national  29-833 Sup CI/76 418 crisis, a  constitutional democratic  government has  to  be temporarily altered to whatever degree necessary to overcome the peril  and restore  normal conditions.  This  alteration invariably involves  government of a stronger character. The government has  to assume  larger power in order to meet the crisis situation  and that  means that the people would have fewer rights.  There can  be no doubt that crisis government means strong  and arbitrary government and as pointed out by Cecil Carr  in his  article on  "Crisis Legislation in Great Britain" published  during the  Second  World  War  "in  the eternal dispute between Government and liberty, crisis means more government  and less  library." In  fact Scrutton, L.J. never a  fulsome admirer of government departments, made the classic remark  in his  judgment in Ronnfeldt v. Phillips(’) that war cannot be carried on according to the principles of Magna Carta  and there  must be  same  modification  of  the liberty of  the subject  in the  interests of the State. The maxim salus populi suprema lex esto, that is publicsafety is the highest  law of all, must prevail in times of crisis and the people  must submit  to temporary  abdication  of  their constitutional liberties  in order  to enable the government to combat the crisis situation which might otherwise destroy the continued existence of the nation.      While dealing  with the  emergency powers  which may be assumed by  a constitutional  democracy to  deal effectively with a  national crisis,  it is  necessary to  refer to  the celebrated writ  of habeas  corpus. It  is the most renowned contribution of  the English common law to the protection of human liberty.  It is one of the most ancient writs known to the Common  Law of  England. It  is  a  writ  of  immemorial antiquity "throwing  its roots  deep into the genius" of the Common Law.  It is  not necessary to trace the early history of this  writ which  is to  be found in the decision of this Court in  Kanu Sanyal  v. District  Magistrate, Darjeeling & ors (2)  Suffice it  to state  that by the 17th Century this writ had assumed great constitutional importance as a device for impugning  the validity of arbitrary imprisonment by the executive and by invoking it, a person unlawfully imprisoned could secure  his release.  As pointed  out by Holdsworth in Vol. 1 of his "History of English Law", "its position as the most efficient  protector of  the liberty of the subject was unquestioned after  the great  Rebellion". It  was for  this reason that  men began  to assign as its direct ancestor the clauses of  the Magna  Carta which  prohibited  imprisonment without due  process  of  law.  This  may  not  be  strictly accurate, but there can be no doubt that, far more effective than any  other remedy,  this writ  helped to  vindicate the right of freedom guaranteed by the famous words of the Magna

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Carta. The  decision in  Darnel’s case(3)  was a set-back in the struggle  for liberty since it eroded to some extent the effectiveness of  the writ  by taking the view that a return that the arrest was "by the special command of the King" was a good and sufficient return to the writ, which meant that a lawful cause  of imprisonment was shown. But the Petition of Right. 1627 overruled this decision by declaring such a case of imprisonment to  (1) 35 Times Law Reports 46.  (2) [1973] 2 S.C C. 674.  (3) (1627) 3 ST 1. 419 be unlawful.  In the  same way, it was enacted in the Habeas Corpus A  Act, 1640  abolishing the  Star Chamber  that  any person committed  or imprisoned by order of the Star Chamber or similar  bodies or  by the  command of the King or of the Council should  have his  habeas  corpus.  There  were  also various other  defects which were revealed in course of time and with  a view  to remedying  those defects and making the writ more efficient as an instrument of securing the liberty of the  subject unlawfully detained, reforms were introduced by the  Habeas Corpus Act, 1679, and when even these reforms were found  insufficient, the  Habeas Corpus Act, 18 1 6 was enacted by which the benefit of the provisions of the Habeas Corpus Act,  1679 was  made  available  in  cases  of  civil detention and  the judges were empowered to inquire into the truth of  the facts  set out  in the return to the writ. The machinery of  the writ was thus perfected by legislation and it became  one of  the  most  important  safeguards  of  the liberty of the subject and, as pointed out by Lord Halsbury, L.C., in  Cox v. Hakes,(i) it has throughout "been jealously maintained by  courts of  law as  a check  upon the  illegal usurpation of  power by  the executive  at the  cost of  the liege .      Now, in the United States of America, the right to this important writ  of habeas  corpus  by  means  of  which  the liberty of  a citizen is protected against arbitrary arrest, is not  expressly declared  in the  Constitution, but  it is recognised in  Article I,  Placitum 9,  clause  (2)  of  the Constitution which  declares that "The privilege of the writ of habeas  corpus shall  not be  suspended, unless,  when in cases of  rebellion  or  invasion,  the  public  safety  may require  it".   Cooley  in   his  "General   Principles   of Constitutional Law  in the U.S.A." points out: The privilege of the  writ consists in this: that, when one complains that he is  unlawfully imprisoned  or deprived of his liberty, he shall be  brought without  delay before  the proper court or magistrate  for   an  examination  into  the  cause  of  his detention, and shall be discharged if the detention is found to be  unwarranted. The suspension of the privilege consists in taking  away this  right  to  an  immediate  hearing  and discharge, and in authorising arrests and detentions without regular process  of law." The suspension of the privilege of the writ  does not legalise what is done while it continues: it merely  suspends for  the time  being the  remedy of  the writ.      The  decision   of  Chief   Justice  Taney   in  ex  P. Merryman(2) contains  the leading American discussion of the suspension of  the writ  of habeas  corpus  in  a  temporary emergency. In  the spring  of 1861.  the eve of the American Civil War,  President Lincoln  was confronted  by a state of open insurrection  in the  State of  Maryland following  the fall of  Fort Sumter  on April 15. Railroad communication to the  northern   United  States   had  been  severed  by  the Marylanders on  April 20 and the Sixth Massachusetts Militia

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reached Washington  only after  fighting its way through the City of  Baltimore. In  these circumstances  and  under  the increasing threat  of secession,  President Lincoln issued a Proclamation on  April 27  authorising General Pinfield Scot to suspend H  (1) [1890] 15 A. C.506.  (2) 17 Fed. Cas. 144 (C. C. D. Md. 1861). 420 the writ  of habeas  corpus "at  any  point  on  or  in  the vicinity of the military line which is now, or shall be used between  the   City  of   Philadelphia  and   the  City   of Washington". Another  Proclamation of  July 2  extended this power to  a similar  area between  Washington and  New York. John Merryman  who  was  a  Marylander  openly  recruited  a company of  soldiers to  serve in  the Confederate  Army and became their drill master and in consequence he was arrested by the army of Lincoln and held prisoner in Fort McHenry. He applied for  a  writ  of  habeas  corpus  and,  despite  the Presidential authorisation  suspending the writ, the Supreme Court presided  over by Chief Justice Taney granted the writ on the  view that  the power to suspend the privilege of the writ  is  a  legislative  power  and  the  President  cannot exercise it  except as  authorised by  law. History tells us that President  Lincoln declined  to implement  the order of the Supreme  Court and  this  would  have  led  to  a  major constitutional crisis,  but the Congress hastened to resolve the controversy  by  enacting  legislation  authorising  the President to  suspend the  privilege of the writ whenever in his judgment  the  public  safety  requires  it.  It  would, therefore, be  seen that  even in  United States of America, where personal liberty is regarded as one of the most prized possessions of  man, the  Congress has  the power to suspend the writ  of habeas corpus and this power has been exercised in the past, though very sparingly.      So also  in Great  Britain the  writ of  habeas  corpus which, as  May points  out,  "is  unquestionably  the  first security of  liberty" and  which "protects  the subject from unfounded suspicions,  from aggressions  of power"  has been suspended, again  and again,  in periods of public danger or apprehension. Parliament, convinced of the exigencies of the situation, has  on several occasions suspended, for the time being, the  rights of  individuals in  the interests  of the State. This  of course  has had  the effect  of  arming  the executive with  arbitrary  power  of  arrest  by  making  it impossible for  a person detained to secure his release even if his  detention is  illegal.  It  has  resulted  in  great diminution  in   the  interest  of  personal  freedom,  for, suspension of  habeas corpus  is verily,  in  substance  and effect, suspension  of the right of personal liberty granted in Magna Carta, But it has been justified on the ground that whatever be  the temporary  danger of  placing such power in the hands  of the Government, it is far less than the danger with which  the constitution and the society are threatened, or to  put it  differently "when  danger  is  imminent,  the liberty of  the subject  must be sacrificed to the paramount interests of the State". Moreover, on each occasion when the writ of  habeas corpus has been suspended, the suspension of the writ has invariably been followed by an Act of Indemnity "in  order   to  protect   officials  concerned   from   the consequences of any incidental illegal acts which they might have committed  under cover of suspension of the propogative writ". During  the period  of emergency,  many  illegalities might have  been committed by the executive in order to deal with a  crisis situation and all such illegalities have been retrospectively legalised by an Indemnity Act.

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    I may  now turn  to consider  the emergency  provisions under  our   Constitution.  Unlike   many   of   the   older constitutions, our  Constitution speaks  in  detail  on  the subject of emergency in Part XVIII. That Part 421 consists of  a fasciculus  of Articles  from Article  352 to Article 360.  A Article  352 enacts that if the President is satisfied that a grave emergency exists whereby the security of India  or  of  any  part  of  the  territory  thereof  is threatened,  whether   by  war  or  external  aggression  or internal  disturbance,  he  may,  by  Proclamation,  make  a declaration to that effect and such Proclamation is required to be  laid before  each House of Parliament and approved by resolutions of  both Houses  before the  expiration  of  two months. It  is not  necessary that  there should  be  actual occurrence  of   war  or  external  aggression  or  internal disturbance in order to justify a Proclamation of Emergency. It is enough if there is imminent danger of any such crisis. It will  be seen  that this Article provides for emergencies of the  first two  types mentioned  above. The third type of emergency threatening  the financial  stability of  India or any part thereof is dealt with in Article 360 but we are not concerned with  it and hence it is not necessary to consider the provisions of that Article. So far as the emergencies of the  first  two  types  are  concerned,  the  constitutional implications of a declaration of emergency under Article 352 are much  wider than  in the United States or Great Britain. These are  provided for  in the  Constitution itself. In the first place,  Article 250 provides that while a Proclamation of Emergency  is in  operation, Parliament  shall  have  the power to  make laws  for  the  whole  or  any  part  of  the territory of  India with  respect  to  any  of  the  matters enumerated in  the State  List, which means that the federal structure based on separation of powers is put out of action for the  time being.  Secondly, Article  353  declares  that during the  time that Proclamation of Emergency is in force, the executive  power of  the Union  of India shall extend to the giving  of direction  to any  State as  to the manner in which the  executive power  thereof is  to be  exercised and this provision  also derogates  from the  federal  principle which forms  the basis of the Constitution. If there is non- compliance by  any State  with the  directions given  by the Union under Article 353, such non-compliance may attract the provisions of  Article 356  and ’President’s  rule’  may  be imposed under  that Article  and in  such event.  Parliament may, under  Article 357, clause (1), confer on the President the power  of the  legislature of the’ State to make laws or to delegate  such legislative  power to any other authority. This not  only contradicts the federal P principle, but also strikes at  the root  of representative  form of Government. Then there  are two  Articles, Article  358 and  Article 359 which set out certain important consequences of Proclamation of Emergency and they read as follows:           "358. While  a Proclamation  of  Emergency  is  in      operation nothing  in article  19  shall  restrict  the      power of  the State  as defined in Part III to make any      law or  to take  any executive  action which  the State      would but  for the provisions contained in that Part be      competent to  make or  to take,  but any  law  so  made      shall, to the extent of the incompetency. cease to have      effect as  soon as  the Proclamation ceases to operate,      except as  respects things  done or  omitted to be done      before the law so ceases to have effect.           "359. (1)  Where a Proclamation of Emergency is in      operation, the  President may by order declare that the

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    right to 422      move any  court for  the enforcement  of  such  of  the      rights conferred by Part III as may be mentioned in the      order and  all proceedings pending in any court for the      enforcement of  the rights  so mentioned  shall  remain      suspended for  the period during which the proclamation      is in  force or  for such  shorter  period  as  may  be      specified in the order.      (1A) While  an order  made under  clause (1) mentioning      any  of   the  rights  conferred  by  Part  III  is  in      operation, nothing in that Part conferring those rights      shall restrict the power of the State as defined in the      said Part  to make  any law  or to  take any  executive      action which  the State  would but  for the  provisions      contained in that Part be competent to make or to take,      but any  law so  made  shall,  to  the  extent  of  the      incompetency, cease to have effect as soon as the order      aforesaid ceases  to operate. except as respects things      done or  omitted to be done before the law so ceases to      have effect.           (2) An  order made  as aforesaid may extend to the      whole or any part of the territory of India.           (3) Every  order made  under clause  (1) shall, as      soon as  may be  after it  is made, be laid before each      House of Parliament." It may  be pointed out that clause (1A) did not form part of Article 359 when the Constitution was originally enacted but it  was   introduced  with   retrospective  effect   by  the Constitution (Thirty-eighth Amendment) Act, 1975. We are not directly concerned  in these appeals with the interpretation of Article  358 and clause (1A) of Article 359, but in order to arrive  at the proper meaning and effect of clause (1) of Article 359,  it will  be relevant  and somewhat  useful  to compare and  contrast the  provisions  of  Article  358  and clause (1A)  of Article 35 on the one hand and clause (1) of Article 359 on the other.      It would  be convenient  at this  stage to  set out the various steps  taken by the Government of India from time to time in  exercise of  the emergency  powers conferred  under Part XVIII  of the  Constitution. When hostilities broke out with  Pakistan  in  the  beginning  of  December  1971,  the President issued  a  Proclamation  of  Emergency  dated  3rd December, 1971  in exercise  of the  powers conferred  under clause (1)  of Article 352 declaring that "a grave emergency exists whereby  the  security  of  India  is  threatened  by external aggression".  This was  followed by two orders, one dated 5th  December, 1971 and the other dated 23rd December, 1974, issued  by the  President under  clause (1) of Article 359. It is not necessary to reproduce the terms of these two Presidential orders  since they  were subsequently rescinded by a  Presidential order  dated 25th  December, 1975  issued under  clause   (1)  of   Article  359.   Whilst  the  first Proclamation of  Emergency dated 3rd December, 1971 based on threat  of  external  aggression  continued  in  force,  the President issued  another Proclamation  of  Emergency  dated 25th June,  1975 declaring  that "a  grave emergency  exists whereby the  security of  India is  threatened  by  internal disturbance". This Proclamation of Emergency was also issued in exercise  of the  powers confer  red under  Article  352, clause (1) and it was followed by a fresh Presi- 423 dential order  dated 27th  June, 1975  under clause  (1)  of Article 359.  A The  President, by  this  order  made  under clause ( l ) of Article 359, declared that "the right of any

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person, (including  a foreigner)  to move  any court for the enforcement of  the rights  conferred by Article 14, Article 21 and  Article 22  of the  Constitution and all proceedings pending in  any court  for  the  enforcement  of  the  above mentioned rights  shall  remain  suspended  for  the  period during which  the  Proclamations  of  Emergency  made  under clause (1)  of Article  352 of  the Constitution  on the 3rd December, 1971  and on  the 25th  June,  1975  are  both  in force". The  writ petitions out of which the present appeals arise were  filed after the issue of this Presidential order and it  was on  the basis of this Presidential order that it was contended  on behalf  of the  State Governments  and the Union  of   India  that   the  writ   petitions   were   not maintainable, since,  by  moving  the  writ  petitions,  the detenus sought  enforcement of  the right  of  conferred  by Article 21.  This contention  was substantially negatived by the High  Courts and  hence the present appeals were brought by the  State Governments and the Union of India raising the same contention  as  to  the  maintainability  of  the  writ petitions. It  may be  pointed out  that whilst  the present appeals were pending before this Court, the President issued another order  dated 8th  January, 1976  under clause (1) of Article  359   suspending  the  enforcement  of  the  rights conferred by  Article 19.  This Presidential  order  is  not material, but  I have  referred to it merely for the sake of completeness.      Now the  orders of  detention challenged by the detenus in the  different writ  petitions were  all expressed  to be made in exercise of the powers conferred by section 3 of the Maintenance of  Internal Security  Act,  1971.  The  detenus challenged them  on various  grounds, namely,  the orders of detention were  not in accordance with the provisions of the Act, they  were not  preceded by  the  requisite  subjective satisfaction,  which  constitutes  the  foundation  for  the making of  a valid order of detention, they were actuated by malice in  law or  malice in  fact or  they were outside the authority conferred  by the  Act.  The  substance  of  these grounds according  to the  Union  of  India  and  the  State Governments, was  that, by  these orders  of detention,  the detenus, were  deprived of  their personal liberty otherwise than in  accordance with  the procedure  established by law. This  constituted   infraction  of   the  fundamental  right conferred by  Article 21  and  the  writ  petitions  of  the detenus were, therefore, clearly proceedings for enforcement of that fundamental right. But by reason of the Presidential order dated 27th June, 1975, the right to move any court for enforcement of the fundamental right conferred by Article 21 was suspended  during the  period when  the Proclamations of Emergency dated  3rd December, 1971 and 25th June, 1975 were in force  and, therefore, the detenus had no locus standi to file the  writ petitions and the writ petitions were barred. The answer to this contention given on behalf of the detenus was-and here  we are  setting out  only  the  broad  general argument-that Article  21 merely  defines an  area  of  free action and does not confer any right and hence it is outside the scope  and ambit  of Article  359,  clause  (  I  )  and consequently outside  the Presidential  order itself. It was also urged  on behalf  of the  detenus that  it is  a  basic principle of the rule of 424 law that  no member  of the executive can interfere with the liberty of  a person  except in  accordance  with  law.  The principle of  the rule of law was recognised and declared by the Judicial  Committee of  the Privy  Council in  Eshugbayi Eleko v.  Officer Administering the Government of Nigeria(l)

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and it  was uniformly administered by courts in India as the law of  the land  prior to  the coming  into  force  of  the Constitution.  It   was  consequently  law  in  for  in  the territory of  India immediately  before the  commencement of the Constitution  and by reason of Article 372, it continued in  force   ever  after   the  coming   into  force  of  the Constitution  and   since  then   it  has   been  repeatedly recognised and  adopted by  this Court  as  part  of  Indian jurisprudence in several decided cases. Moreover, apart from being continued  under Article  372 as  law in  force,  this principle of  the rule  of law stems from the constitutional scheme itself which is based on the doctrine of distribution of  powers   amongst  different   bodies  created   by   the Constitution. Under  the constitutional scheme the executive is a  limited executive and it is bound to act in accordance with law  and not  go against  it. This  obligation  of  the executive not  to act  to the  detriment of a person without the authority  of law  can be  enforced under Article 226 by issue of a writ "for any other purpose". When a detenu files a petition under Article 226 challenging the validity of the order  of  detention  on  the  ground  that  it  is  not  in accordance  with   the  Act  or  is  outside  the  authority conferred by  the Act,  he seeks  to enforce this obligation against  the   State  Government   and  the   suspension  of enforcement of  the fundamental  right under Article 21 does not affect  the maintainability  of his  writ petition.  The detenus also  contended that  in  any  event  the  right  to personal liberty was a statutory right and the suspension of the fundamental  right conferred  by Art.  21 did  not carry with it  suspension of  the enforcement  of  this  statutory right. The Union of India and the State Governments rejoined to this  contention of the detenus by saying that Article 21 was the sole repository of the right of personal liberty and there was  no common  law or statutory right in a person not to be  deprived of his personal liberty except in accordance with law,  apart from  that  contained  in  Article  21  and therefore, the  writ petitions  filed by the detenus were in substance and  effect petitions for enforcement of the right conferred  by   Article  21   and  hence   they   were   not maintainable.      Before we  proceed to  consider these contentions which have been  advanced before  us, it  is necessary  to  remind ourselves that the emergency provisions in Part XVIII of the Constitution make no distinction whether the emergency is on account of  threat to  the  security  of  India  by  war  or external aggression  or on account of threat to the security of India  by internal  disturbance. The  same provisions are applicable  alike   in   both   situations   of   emergency, irrespective of  the reason  for which  emergency, has  been declared.  The   legal  consequences   are  the   same  and, therefore, whatever  interpretation we place on Article 359, clause (1)  in the present case which relates to declaration of emergency  on account of internal disturbance would apply equally where the emergency is declared on account of war or external aggression  by a hostile power. If we take the view that the  Presidential order  under Article  359, clause (1) suspending enforcement of      (1) [1931] A. C. 662. 425 Article 21  does not  bar the remedy of a detained person to seek his  release  on  the  ground  that  his  detention  is illegal, it  would be open to a detained person to challenge the legality  of his  detention even when there is emergency on account  of war  or external aggression, because, barring Article 359, there is no other provision in the Constitution

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which can even remotely be suggested as suspending or taking away the  right to  move  the  Court  in  cases  of  illegal detention. The  consequence would be that even in a perilous situation when  the nation  is engaged in mortal combat with an enemy,  the courts  would be free to examine the legality of detention  and even  if a  detention has  been  made  for efficient prosecution  of the  war or  protecting the nation against enemy  activities it  would be  liable to  be struck down by  the courts  if some  procedural safeguard  has been violated  though   it  may   be  bona   fide   and   through inadvertence. This  would imperil  national security and the Government of  the day  would be helpless to prevent it. The question is:  whether such  is the interpretation of Article 359, clause  (1). Of  course, if  that is  the only possible interpretation, we  must give effect to it regardless of the consequence, leaving  it to  the  constituent  authority  to amend the  Constitution, if it so thinks fit. But we may ask ourselves: could  the Constitution-makers have intended that even in times of war or external aggression, there should be no power in the President, as the head of the Nation, to bar judicial scrutiny  into legality  of detention.  It  may  be pointed out  that even  in the United States of America, the President has  power under  Article I Placitum 9, clause (2) of the  United States  Constitution to suspend the privilege of the  writ of habeas corpus "when in cases of rebellion or invasion the  public safety  may require  it".  The  British Parliament  has  also  on  several  occasions  in  the  past suspended  the   writ  of   habeas  corpus   by  legislative enactment,  though   in  limited   classes  of   cases.  The Constitution-makers were  obviously aware that even in these countries which  are essentially democratic in character and where the  concept of  constitutional government has had its finest flowering,  the power  to exclude  judicial review of legality of  detention through the means of a writ of habeas corpus has been given to the Supreme legislature or the head of the  State and  they must  have realised  that this was a necessary power in times of national peril occasioned by war or external  aggression. Could  the Constitution-makers have intended to  omit to provide for conferment of this power on the head of the State in our Constitution ?      We must  also disabuse  our mind of any notion that the emergency declared by the Proclamation dated 25th June, 1975 is not genuine, or to borrow an adjective used by one of the lawyers appearing on behalf of the interveners, is ’phoney’. This  emergency  has  been  declared  by  the  President  in exercise of  the powers  conferred on him under Article 352, clause (1)  and the  validity of the Proclamation dated 25th June, 1975  declaring this  emergency has  not been assailed before US.  Mr. Shanti Bhushan and the other learned counsel appearing on  behalf of  the detenus in fact conceded before us that,  for the  purpose of  the present  appeals, we  may proceed on  the assumption that the declaration of emergency under the  Proclamation dated  25th June, 1975 is valid. But if this emergency is taken as valid, we must equally presume that 426 it is  genuine and  give full  effect  to  it,  without  any hesitation or reservation.      With these  prefatory observations  I will  now turn to examine clause  (1) of Art. 359 under which the Presidential order has  been issued. The language of this clause is clear and  explicit   and  does  not  present  any  difficulty  of construction. It says that where a Proclamation of Emergency is in  operation, the  President may  by order  suspend  the right to  move any  court for the enforcement of such of the

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rights conferred  by Part  III as  may be  mentioned in  the order. Any  or all  of the  rights conferred by Part III can find  a   place  in   the  Presidential  order.  Whilst  the Presidential order  is in  force, no  one can move any court for the  enforcement of  any of  the  specified  fundamental rights. I  shall presently discuss whether Article 21 can be said to  confer any right, but assuming it does-and, as will be evident  shortly, that is my conclusion-the right to move any court  for the  enforcement  of  the  fundamental  right guaranteed by  Article 21  may be suspended by specifying it in the  Presidential order.  When that  is done,  no one can move any  court, and  any court  would  mean  any  court  of competent jurisdiction,  including the  High Courts  and the Supreme Court.,  for enforcement  of the  right conferred by Article 21.  The words  "the right to move any court for the enforcement" are  wide enough "to include all claims made by citizens in  any court  of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without  examining  the  question  as  to  whether  the citizen is,  in substance,  seeking to  enforce any  of  the specified fundamental rights". Vide Makhan Singh v. State of Punjab(1). Therefore,  there can be no doubt that in view of the  Presidential  order  which  mentions  Article  21,  the detenus would  have no  locus standi  to maintain their writ petitions, if it could be shown that the writ petitions were for enforcement of the right conferred by Article 21.      That  should   logically  take   me   straight   to   a consideration of  the question  as to  what is the scope and content of  the right  conferred by  Art.  21,  for  without defining it,  it would  not be possible to determine whether the right sought to be enforced by the detenus in their writ petitions is  the right  guaranteed under  Article 21 or any other distinct right. But before I examine this question, it would be  convenient first  to  deal  with  clause  (1A)  of Article 359  and ascertain  its meaning  and effect.  Clause (1A) of  Art. 359  did not  find a place in the Constitution when it  was originally  enacted, but  it was  inserted with retrospective effect  by  the  Constitution  (Thirty-eighth) Amendment Act,  1975. It  provides that  while an order made under cl.  (1) of  Article 359  mentioning any of the rights conferred by  Part III is in operation, nothing in that Part conferring those  rights shall  restrict the  power  of  the State to  make any law or to take any executive action which the State  would, but  for the  provisions contained in that Part, be  competent to  make or  to take. It will be noticed that the  language of  cl. (1A)  of Art.  359 is in the same terms as  that of Article 358 and the decisions interpreting Article 358  would, therefore,  afford considerable guidance in the interpretation of cl. (1A) of Art. 359. But before I      (1) [1964] 4 S. C. R. 797. 427 turn to  those decisions, let me try to arrive at the proper meaning of  that clause  on a  plain interpretation  of  its language.      In the  first place,  it is  clear that  clause (1A) of Art. 359  is prospective in its operation, for it says that, while a  Presidential order  is in operation, nothing in the Articles mentioned  in the Presidential order shall restrict the power  of the  State to  make any  law or  to  take  any executive  action   which  the  State  would,  but  for  the provisions contained in Part III, be competent to make or to take. This clause does not operate to validate a legislative provision or  executive action  which was invalid because of the constitutional  inhibition before  the  Proclamation  of Emergency. Secondly,  it may  be noted  that the fundamental

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rights operate  as restrictions  on the  power of the State, which includes  the executive  as well  as the  legislature. When a  Presidential order  is  issued  under  article  359, clause  (1),   the  fundamental   right  mentioned   in  the Presidential order  is suspended, so that the restriction on the power of the executive or the legislature imposed by the fundamental right  is lifted while the Presidential order is in operation and the executive or the legislature is free to make any  law or  to take any action which it would, but for the provisions  contained in  Part III, be competent to make or to  take. The  words "but for the provisions contained in that Part",  that is,  but for the fundamental rights, means "if the  fundamental rights  were not  there". The  question which has,  therefore, to  be asked  is: if  the fundamental rights  were  not  there  in  the  Constitution,  would  the executive or  the  legislature  be  competent  to  make  the impugned law  or to  take the impugned executive action’? If it could, it would not be restricted from doing so by reason of  the   particular  fundamental  right  mentioned  in  the presidential order. The Presidential order would, therefore, have the  effect of  enlarging the power of the executive of the legislature  by freeing  it from the restriction imposed by the  fundamental  right  mentioned  in  the  Presidential order, but  it would  not  enable  the  legislature  or  the executive to  make any  law or  to take any executive action which it was not otherwise competent to make or to take. Now it is  clear that,  if the fundamental rights were not there in the  Constitution, the  executive being  limited  by  law would still be unable to take any action to the prejudice of a person  except by  authority of law and in conformity with or in  accordance with  law  and,  therefore,  even  if  the Presidential order  mentions Art. 21, clause (1A) of Article 359 would  not enable  the executive  to deprive a person of his personal  liberty without  sanction of law and except in conformity with  or in  accordance with  law. If an order of detention is  made by the executive without the authority or law, it  would be  invalid and  its invalidity  would not be cured by  clause (1A)  of Article  359, because  that clause does not  protect  executive  action  taken  without  lawful authority. An  unlawful order  of  detention  would  not  be protected from  challenge under  Article  21  by  reason  of clause (1A)  of Article 359 and the detenu would be entitled to complain of such unlawful detention as being in violation of Article  21, except  in so  far as  his right to move the court for  that purpose  may be held to have been taken away by clause (1) of Article 359.      This interpretation  of clause  (1A) of  Article 359 is clearly supported  by the decision of this Court in State of Madhya Pradesh v. 428 Thakur  Bharat   Singh(l)  and   the  subsequent   decisions following it,  which relate  to the  interpretation  of  the similarly  worded  Article  358.  What  happened  in  Bharat Singh’s case  (supra) was  that whilst  the Proclamation  of Emergency dated October 20, 1962 was in operation, the State Government made  an order under sub-section (1) of section 3 of the  Madhya Pradesh  Public Security  Act, 1959 directing that Bharat  Singh shall  not be  in  any  place  in  Raipur District and  shall immediately  proceed to  and  reside  in Jhabua. Bharat  Singh challenged  the validity  of the order inter alia  on the  ground that sub-section (1) of section 3 of the Act infringed the fundamental rights guaranteed under clauses (d)  and (e)  of Article 19(1). The State Government sought to  meet the challenge by pleading the bar of Article 358. But this Court held that Article 358 had no application

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because sub-section  (1) of  section 3  of the Act which was impugned in  the petition  was a  pre-emergency legislation. This Court, speaking through Shah, J. observed:           "Article 358 which suspends the provisions of Art.      19 during  an emergency declared by the President under      Art.  352   is  in   terms   prospective:   after   the      proclamation of  emergency nothing in Art. 19 restricts      the power  of the  State to  make laws  or to  take any      executive action which the State but for the provisions      contained in  Part III  was competent  to make or take.      Article 358  however does  not operate  to  validate  a      legislative provision  which was invalid because of the      constitutional inhibition  before the  proclamation  of      emergency." This Court accordingly proceeded to consider the validity of section 3,  sub-section (1)  of the Act and held that clause (b) of that sub-section was unconstitutional as it infringed the fundamental  rights under  clauses (d)  and (e)  of Art. 19(1) and  if it  was  void  before  the    proclamation  of Emergency, "it was not revived by the Proclamation".      But on this view, another contention was put forward on behalf of the State Government and that was that Article 358 protects not  only legislative  but  also  executive  action taken after  the Proclamation  of Emergency  and, therefore, executive action  taken by  the State would not be liable to be  challenged   on  the   ground  that   it  infringes  the fundamental rights  under Art.  19,  and  consequently,  the order of  the State  Government, though  made under void law was  protected   against  challenge   under  Art.  19.  This contention was  also rejected  by the Court in the following words:           "In our  judgment, the  argument involves  a grave      fallacy. All  executive action  which operates  to  the      prejudice of  any person  must have authority of law to      support it,  and the  terms of  Art. 358 do not detract      from that  rule. Article 358 does not purport to invest      the State  with arbitrary  authority to  take action to      the prejudice  of  citizens  and  others  .  it  merely      provides that so long as the proclamation of emer-      (1) [1967] 2 S. C. R. 454. 429      gency subsists  laws  may  be  enacted,  and  executive      action may  be taken  in pursuance of lawful authority,      which if the provisions of Art. 19 were operative would      have been invalid. The view  taken by  the Court  was that  it  is  only  where executive action  ii taken  in pursuance of lawful authority that it is immune from challenge under Art. 19 and in such a case even  if  it  conflicts  with  the  fundamental  rights guaranteed under  that Article,  it would be valid But where executive action  is taken  without lawful authority, as for example, where  it is taken without the authority of any law at all  or in  pursuance of  a law  which is void, it is not protected from challenge under Art. 19 by Article 358 and it would be void to the extent it violates article 19.      The same  view was  taken by  this  Court  in  District Collector of  Hyderabad v.  M/s Ibrahim  Co.(1)  where  this Court said,  without referring  expressly to the decision in Bharat Singh’s  case (supra)  that i’  the  executive  order immune from  attack is  only that  order which the State was competent, but  for the  provisions contained  in Art 19, to make", and  that "executive  action of the State Government, which is otherwise invalid, is not immune from attack merely because the  Proclamation of  Emergency is in operation when it is taken". The reference here was to immunity from attack

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under Art.  19 and  it was  held that executive action which was contrary to law and hence invalid was not protected from attack under  Art. 19  by reason  of Art.  358. So  also  in Bennett Coleman  & Co.  v. Union  of  India(2),  this  Court referred to  the decisions in Bharat Singh’ case (supra) and Ibrahim’s case (supra) and observed: "Executive action which is  unconstitutional   is  immune   during  Proclamation  of Emergency. During  the Proclamation  of Emergency Art. 19 is suspended.  But   it  would  not  authorise  the  taking  of detrimental executive  action during the emergency affecting fundamental  rights  in  Art.  19  without  any  legislative authority or  any purported  exercise of  power conferred by any pre-emergency  law which was invalid when enacted". This Court also  said to the same effect in Shree Meenakshi Mills Ltd. v.  Union of  India(3): "-if  it can  be shown that the executive action taken during the emergency has no authority of a  valid law,  its constitutionality  can be challenged". These observations  clearly show that where executive action is taken  without any  legislative authority or in pursuance of a law which is void it would not be protected by Art. 358 from   challenge   under   Art.   19   and   it   would   be unconstitutional to  the extent  to which  it conflicts with that Article.      If this  be the interpretation of Art. 358 as laid down in  the   decisions  of   this  Court,  a  fortiori  a  like interpretation must be placed on clause (1A) of Art. 359, as both are  closely similar  in form  as well  as language. It must, therefore,  be held  that even  though a  Presidential order issued  under clause  (1) of article 359 mentions Art. 21, where  it is found that a detention has not been made in pursuance of lawful      (1) [1970] 3 S. C. R. 498.      (2) [19731 2 S. C. R. 757      (3) [19741 2 S. C. R. 398. 430 authority or  in other  words, the  detention is without the authority of law, whether by reason or there being no law at all or  by reason  of the  law under  which the detention is made being  void, clause ( 1A) of Art. 359 would not protect it from  challenge under Art. 21 and it would be in conflict with that  Article. The  only question then would be whether the detenu  would be  entitled to  challenge the validity of tile detention  as being  in breach  of Art.  21, in view of clause (1)  of Art.  353 read  with the  Presidential  order mentioning Art. 21.      Now, at  the outset,  a  contention  of  a  preliminary nature was  advanced by Mr. Shanti Bhushan, learned Advocate appearing on  behalf of some of the detenus, that clause (1) of article 359 can have no operation in cases where a detenu seeks  to   enforce  his   right  of   personal  liberty  by challenging  the  legality  of  his  detention.  Mr.  Shanti Bhushan contended,  and in  this contention  he was strongly supported by  Mr. Jethmalani, that personal liberty is not a conglomeration of  positive rights  but is merely a negative concept denoting  an area  of free  action to  the extent to which law  does not  curtail it or authorise its curtailment and such  a negative  right cannot by its very nature be the subject of conferment under Art. 21. The argument of counsel based on  this contention  was that when Art. 359 clause (1) speaks of suspension of "the right to move any court for the enforcement of  such of  the rights conferred by Part III as may be  mentioned in the order", it cannot include reference to the  right of  personal liberty in article 21, because it cannot be  said of such a right that it is conferred by art. 21.  It   was  urged   that  article   21  cannot  therefore

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appropriately find  a place  in a  Presidential order  under clause (l)  of article  359 and  even if  it is  erroneously mentioned there;  it can  have no  legal sequitur and cannot give rise  to the  consequences set  out in  clause  (1)  of article 359.  This argument  was sought  to be  supported by reference to two well known text books on jurisprudence, one by Salmond  and the  other by Holland and the Declaration of the Rights  of Man  and the  Citizen adopted  by the  French National Assembly  was also  relied upon  for this  purpose. There is,  however, no  merit in  this argument.  The  words ’rights conferred  by Part III’ cannot be read in isolation, ‘nor can  they be  construed by  reference to theoretical or doctrinaire considerations. They must be read in the context of the  provisions enacted in Part III in order to determine what are  the rights  conferred by  the provisions  in  that Part. Part  III is headed ’’Fundamental Rights" and it deals with fundamental  rights under seven heads, namely, right to equality, right  to  freedom,  right  against  exploitation, right to  freedom  of  religion,  cultural  and  educational rights,  right  to  property  and  right  to  constitutional remedies. Arts.  19 to  22 occur under the heading "Right to Freedom" and  what is enacted in Art. 21 is a right, namely, the right to life and personal liberty. It is true that Art. 21 is couched in negative language, but it is axiomatic that to confer  a right it is not necessary to use any particular form of language. It is not uncommon in legislative practice to use  negative language  for conferring  a right.  That is often done  for lending greater emphasis and strength to the legislative enactment.  One instance may be found in s. 298, sub-s. (1)  of the  Government  of  India  Act,  1935  which provided that  no subject  of His Majesty domiciled in India shall on 431 grounds only  of religion, place of birth descent, colour or any of  them A  be ineligible  for office under the Crown in India, or  be prohibited on any such grounds from acquiring, holding  or   disposing  of  property  or  carrying  on  any occupation, trade,  business or profession in British India. Though this  provision was couched in negative language, the Judicial Committee  of the  Privy Council in Punjab Province v. Daulat  Singh(1) construed  it as  conferring a  right on every subject of His Majesty, domiciled in India. B      Similarly, Art.  14 also  employs negative language and yet it  was construed to confer a fundamental right on every person within  the territory  of India,  S.  R.  Das,  C.J., pointed out  in Basheshar Nath v. The Commissioner of Income Tax, Delhi & Rajasthan(2) that it is clear from the language of Art.  14 that "The command of that Article is directed to the State  and the reality of the obligation thus imposed on the State  is the  measure of  the fundamental  right  which every person  within the  territory of  India is  to enjoy." (emphasis supplied).      Article 31,  clause (1)  is also  couched  in  negative language: it  is almost  in the  same form  as  Article  21. Speaking about  Article 31,  S. R. Das, J. Observed in State of Bihar  v. Maharajadhiraj  Kameshwar Singh of Dharbhanga & ors.(3). "It  confers a  fundamental right  in so  far as it protects  private  property  from  State  action.  The  only limitation put upon the State action is the requirement that the authority of law is prerequisite for the exercise of its power to deprive a person of his property. This confers some protection on the owner, in that, he will not be deprived of his property save by authority of law and this protection is the measure  of the  fundamental right.  It is  to emphasise this immunity from State action as a fundamental right (that

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the clause  has been  worded in  negative language  . .  . " (emphasis supplied)  If Article  31 (1), by giving a limited immunity from  State action, confers a fundamental right, it should follow  equally on a parity of reasoning that Article 21 also  does so. In fact, this Court pointed out in so many terms in  P. D. Shamdasani v. Central Bank of India Ltd.(4): that clause  (1) of-Art. 31 "is a declaration of fundamental right of private property in the same negative form in which Article 21  declares  the  fundamental  right  to  life  and liberty".      Then again  in R.  C. Cooper  v, Union of India(5) this Court in  a majority  judgment to  which ten  out of  eleven judges were parties said:           "-it is  necessary to bear in mind the enunciation      of the  guarantee of fundamental rights which has taken      different  forms.  In  some  cases  it  is  an  express      declaration of  a guaranteed  right: Art. 29(1), 30(1),      26, 25  and 32,  in  others  to  ensure  protection  of      individual  rights   they  take   specific   forms   of      restrictions on State action-legislative or executive -      Arts. 14,  15, 16,  20,  21,  22(1),  27  and  28;  The      enunciation of  rights either express or by implication      does not  follow a uniform pattern. But one thread runs      through  (1) 73 Indian Appeals 59.  (2) [1959] Supp. (I) S. C. R. 529.  (3) [1952] S. C. R. 889 at p. 988.  (4) [1952] S. C. R. 391.  (5) 119701 3 S. C. R. 530. 432      them; they seek to protect the rights of the individual      or groups  of individuals against infringement of those      rights  within   specific  limits.   Part  Ill  of  the      Constitution weaves  a pattern  of  guarantees  on  the      texture of basic human rights." This statement  of the  law establishes  clearly and without doubts that  Article 21  confers the  fundamental  right  of personal liberty.      Let us,  for a  moment,  consider  what  would  be  the consequences if  Art. 21  were construed as not conferring a right  to   personal  liberty.   Then  there   would  be  no fundamental right  conferred by Art. 21 and even if a person is deprived  of  his  personal  liberty  otherwise  than  in accordance with  the procedure  established by law and there is infringement  of  Art.  21,  such  person  would  not  be entitled to  move the  Supreme Court  for a  writ of  habeas corpus under Art. 32, for that Article is available only for enforcement of  the rights conferred by Part III. That would be a  startling consequence, as it would deprive the Supreme Court of  a wholesome  jurisdiction to  protect the personal liberty of  an individual  against illegal detention. Let it not be  for gotten that the Supreme Court has exercised this jurisdiction in  a large  number of  cases over  the last 25 years and  set many  detenus at  liberty where it found that they  were   illegally  detained.   All  this   exercise  of jurisdiction in the past would be rendered illegal and void. Ever since  the commencement of the Constitution, this Court has always regarded Article 21 as conferring the fundamental right of  personal liberty  which can  be enforced  in  this Court by  a petition  under  Article  32  and  there  is  no justification  for   departing  from   this   well   settled constructional position.      What then  is the  scope and  ambit of this fundamental right conferred  by Article  21 ?  The first  question  that arises in  this connection  is:  what  is  the  meaning  and

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content of  the word  ’personal liberty’  in this  Article ? This question  came up  for consideration  before a Bench of six judges  of this Court in Kharak Singh v. State of U.P. & Ors.(1).   The majority judges took the view "that ’personal liberty’ is  used in  the Article  as a  compendious term to include within  itself all  the varieties of rights which go to make  up the ’personal liberties’ of man other than those dealt with  in the  several of  clauses of Article 19(1). In other words,  while  Article  19(1)  deals  with  particular species or attributes of that freedom, ’personal liberty’ in Article 21 takes in and comprises the residue". The minority judges, however  disagreed  with  this  view  taken  by  the majority and  explained  their  position  in  the  following words: "No  doubt the  expression ’personal  liberty’  is  a comprehensive one  and  the  right  to  move  freely  is  an attribute of  that freedom personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression ’personal liberty’ in Article 21 excludes  that attribute.  In our  view, this  is  not  a correct approach.  Both are  independent fundamental rights. though there  is overlapping.  There is  no question  of one being carved  out of  another. The fundamental right of life and personal  liberty have  many attributes and some of them are found  in Article  19. If  a person’s  fundamental right under Article 21 is infringed, the State can rely upon a law (1) [1964] 1 S. C. R. 332. 433 to sustain  the action, but that cannot be a complete answer unless the  said law satisfies the test laid down in Article 19(2) so  far as the attributes covered by Article 19(1) are concerned." There  can be  no doubt  that  in  view  of  the decision of  this Court  in R.  C. Cooper’s case (supra) the minority view  must be  regarded as correct and the majority view must  be held  to have  been overruled. No attribute of personal liberty  can be  regarded as having been carved out of Article  21. That  Article  protects  all  attributes  of personal liberty  against  executive  action  which  is  not supported by law. lt is not necessary for the purpose of the present appeals  to decide  what those  attributes are or to identify or  define them.  It is  enough to  say that when a person is detained, there is deprivation of personal liberty within the meaning of Article 21.      Now Article  21 gives protection against deprivation of personal liberty  but what  is the nature and extent of this protection ?  In the  first place, it may be noted that this protection is  only against  State action  and  not  against private individuals.  Vide P.  D. Shamdasani v. Central Bank of India  Ltd. (supra)  and Smt.  Vidya Verma  v.  Dr.  Shiv Narain(l). Secondly,  it is  clear from the language of Art. 21 that  the protection it secures is a limited one. It says and I  am quoting  here only  that part of the Article which relates to  personal liberty,  that no one shall be deprived of his  personal liberty  except by the procedure prescribed by law.  The meaning  of the  word ’law’  as  used  in  this Article came to be considered by this Court in A. K. Gopalan v. State  of Madras(2) and it was construed to mean ’enacted law’ or  ’State law’.  Kania, C.J., observed: "It is obvious that-law must  mean enacted  law", and  to the  same  effect spoke Patanjali  Sastri, J.,  when he  said: "In  my opinion ’law’ in  Art. 21  means ’positive  or State made law’ ". So also Mukherjee,  J., said  that his  conclusion was that "in Art. 21  the word  ’law’ has been used in the sense of State made law",,and  Das J.  too expressed  the view  that law in Art. 21 must mean State made law. The only safeguard enacted by Article  21,  therefore,  is  that  a  person  cannot  be

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deprived  of   his  personal  liberty  except  according  to procedure prescribed by ’State made law. If a law is made by the State  prescribing the  procedure for depriving a person of his personal liberty and deprivation is effected strictly in accordance  with such  procedure, the terms of Article 21 would be satisfied and there would be no infringement or the right guaranteed under that Article.      Now, based  on the  phraseology  "except  according  to procedure established by law" in Article 21, an argument was advanced on  behalf of  the detenus  that it  is only  where procedure prescribed  by the  law as  not been  followed  in making the  order of  detention that Article 21 is attracted and the  right conferred by that Article is breached and not where an  order of detention is made without there being any law at  all or  where there  is a law, outside the authority conferred by  it. It  was  urged  that  where  an  order  of detention is challenged as mala (1) [1955] 2 S. C. R. 983. (2) [1950] S. C. R. 88. 833 SCI/76 434 fide or as having been made without the requisite subjective satisfaction, the  challenge would  not be  on the ground of breach of  the procedure  prescribed by the Act but it would be on  the ground that the order of detention is outside the authority of  the Act  and such  a challenge  would  not  be covered by  Article 21.  This argument  is, in  my  opinion, wholly  unsustainable.   It  is   clear  on   plain  natural construction of  its language  that Article  21 imports  two requirements:  first,   there  must  be  a  law  authorising deprivation of personal liberty, and secondly, such law must prescribe a  procedure.  The  first  requirement  is  indeed implicit  in  the  phrase  "except  according  to  procedure prescribed by  law". When  a law  prescribes a procedure for depriving a  person of  personal liberty, it must a fortiori authorise such  deprivation. Article  21 thus  provides both substantive as  well  as  procedural  safeguards.  This  was pointed out  by Patanjali  Sastri, J.  in A.  K. Gopalan  v. State of  Madras (supra) at page 195 of the Report where the learned Judge said:           "If article  21 is  to be  understood as providing      only procedural  safeguards, where  is the  substantive      right to  personal liberty  of non-citizens to be found      in the  Constitution  ?  Are  they  denied  such  right      altogether ?  If they  are to have no right of personal      liberty, why  is the procedural safeguard in article 21      extended to  them ?  And where is that most fundamental      right of  all, the  right to  life, provided for in the      Constitution? The truth is that article 21,-presents an      example of  the fusion  of procedural  and  substantive      rights in  the same  provision-the first  and essential      step  in  a  procedure  established  by  law  for  such      deprivation  must   be  a   law  made  by  a  competent      legislature authorising such deprivation." Mahajan, J. also pointed out in the same case at page 229 of the Report:           Article 21,  in my  opinion, lays down substantive      law as  giving protection  to life and liberty inasmuch      as  it   says  that  they  cannot  be  deprived  except      according to the procedure established by law; in other      words, it means that before a person can be deprived of      his life  or liberty  as a  condition  precedent  there      should exist  some substantive law conferring authority      for doing  so and  the law should further provide for a      mode of procedure for such deprivation."

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    S. R.  Das, J.  too spoke  in the  same strain  when he negatived  the   argument  "that   personal  liberty   as  a substantive right  is protected by Article 19(1) and article 21 gives  only an  additional protection  by prescribing the procedure according  to which that right may be taken away." It would,  therefore, be  seen that  both the  safeguards of Article 21,  substantive as  well as  procedural, have to be complied with in order that there should be no infraction of the right  conferred by  that Article.  Where there is a law authorising deprivation of personal liberty, but a person is detained otherwise  than in  conformity with  the  procedure prescribed by such law, it would clearly constitute 435 violation of  Article 21.  And so also there would be breach of Article  A 21, if there is no law authorising deprivation of personal  liberty and  yet a person is detained, for then the substantive  safeguard provided  in the Article would be violated. Therefore,  when a  detenu challenges  an order of detention made  against him  on the  ground that  it is mala fide  or   is  not  preceded  by  the  requisite  subjective satisfaction, such  challenge would fall within the terms of Article 21. B      It is also necessary to point out two other ingredients of Article  21. The  first is  that there must not only be a law authorising  deprivation of  personal liberty, but there must also  be a  procedure prescribed  by law,  or in  other words, law  must prescribe a procedure. Vide observations of Fazal Ali, J. at page 169, Patanjali Sastri, J. at page 205, Mahajan, J.  at pages  229 and 230 and S. R. Das, J. at page 319 of  the Report  in A  . K.  Gopalan’s case  (  supra)  . Article 21,  thus, operates  not merely  as a restriction on executive action  against deprivation  of  personal  liberty without authority  of law, but it also enacts a check on the legislature by  insisting that  the  law,  which  authorises deprivation, must  establish a procedure. What the procedure should be  is not  laid down in this Article, but there must be some  procedure and  at the least, it must conform to the minimal requirements  of Article  22. Secondly, ’law’ within the meaning  of Article  21 must be a valid law and not only must  it   be  within  the  legislative  competence  of  the legislature enacting  it, but  it must also not be repugnant to any  of the  fundamental rights  enumerated in  Part III. Vide Shambhu  Nath Sarkar v. The State of West Bengal(1) and Khudiram Das v. The State of West Bengal & ors.(2).      It was contended by Mr. Jethmalani on behalf of some of the  detenus   that  when   a  Presidential  order  suspends enforcement of the right conferred by Art. 21, its effect is merely  to   suspend  enforcement   of  the   aforesaid  two ingredients and,  therefore, the  only claims which a detenu is interdicted from enforcing, whilst the Presidential order is  in   operation,  are:   (1)  that  the  law  authorising deprivation does  not prescribe a procedure, and (2) that it does not  impose  reasonable  restrictions  on  the  freedom guaranteed  under   Art.  19.  This  contention  is  plainly erroneous and  does not  need much argument to refute it. In the  first   place,  the  requirement  that  the  law  which authorises deprivation  of personal  liberty should not fall foul of  Article 19,  or for  the matter  of that,  with any other fundamental  right set  out in  Part  III,  is  not  a requirement of  Article 21,  but it is a requirement of Art. 13. Secondly,  the effect  of suspension  of enforcement  of Article 21 by the Presidential order is that no one can move any court  for a  enforcement of the right conferred by Art. 21, whilst the Presidential order is in operation. The right conferred by  Article 21  is the right not to be deprived of

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personal liberty except according to procedure prescribed by law. Therefore,  when the executive detains a person without there being any law at all authorising detention or if there is  such   law,  otherwise   than  in  accordance  with  its provisions, that  would clearly be in violation of the right conferred by Art. 21 and such vio-      (1) [1974] S.C.R.1.      (2) [1975] 2 S. C. R. 832. 436 lation would  a fortiori toe immune from challenge by reason of the  Presidential order:  It must  follow inevitably from this that  when a detenu challenges an order of detention on the ground that it is mala fide or is not in accordance with the provisions  of the  Act  or  is  outside  the  authority conferred by  the Act,  he would  be seeking  to enforce the right of personal liberty conferred on him under Art. 21 and that would be inhibited by the Presidential order.      That takes  me to a consideration of the concept of the rule of  law on  which so much reliance was placed on behalf of the  detenus in  order to  save their writ petitions from the lethal  effect of the Presidential order. The contention on behalf  of the detenus was that their writ petitions were for enforcement  of the  right of the personal iiberty based on the  principle of  the rule  of law  that  the  executive cannot interfere  with the  liberty of  a person  except  by authority of  law and  that was not within the inhibition of the Presidential  order.  The  question  is:  what  is  this principle of  the rule  of law  and does  it exist under our Constitution  as  a  distinct  and  separate  constitutional principle, independently and apart from Article 21, so as to be capable  of enforcement  even when enforcement of Article 21 is suspended by the Presidential order.      The Great  Charter of  Liberties of  England,  commonly known as the Magna Carta, was granted under the seal of King John in the meadow called Runnymede on 15th June, 1215. This was followed  within a  couple of years by a revised version of the  Charter which was issued in the name of Henry III in 1217 and  ultimately with slight amendments, another Charter was re-issued  by Henry  III in  1225 and  that document has always been  accepted as  containing the  authorised text of Magna Carta.  Whenever reference  is made to Magna Carta, it is to  the Charter  of 1225.  which is  also described as "9 Henry III  (1225)".  Magna  Carta,  according  to  Sir  Ivor Jennings symbolises  "what we  should now  call the  rule of law,  government   according  to   law   or   constitutional government" which  means that all power should come from the law and  that "no  man, be  he king  or minister  or private person is  above the law". It recognised that "the liberties of England,  which means  the liberties  of  all  free  men- depended on the observance of law by King, lord and commoner alike", and  "without law  there is  no liberty".  Cap. XXIX contains the famous clause of the Magna Carta which provided that: "No  free  man  shall  be  taken,  or  imprisoned,  or dispossessed, of  his free  tenement, or  liberties, or free customs, or be outlawed, or exiled, or in any way destroyed; nor will  we condemn  him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the  land." Thus  for the  first time the great principle was enunciated-though even before, it was always part of the liberties of  the subject-that no one shall be imprisoned or deprived of  his liberty  except by the authority of the law of the  land. The power of the King to arrest a person or to deprive him of his liberty was circumscribed by law. That is why Bracton  said about the middle of the 13th Century "-the king himself ought not to

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437 under man  but under  God and under the law, because the law makes A  the King.  Therefore, let the King attribute to the law what  the law  attributes to  the King, namely, lordship and power,  for there  is no king where will governs and not law". Magna  Carta was  confirmed again  by  the  successive kings on the insistence of Lords and commons and the rule of law embodied in Magna Calla governed the actions of the King vis-a-vis his  subjects. But this great principle of liberty was placed  in jeopardy in the 17th Century when a claim was made by  the King  that he had a prerogative right to arrest and detain  subject and this prerogative right was necessary for the  defence of the Realm. When the King sought to raise moneys  from  the  subjects  without  the  sanction  of  the Parliament, it  was resisted  by Darnel  and others and they were on that account committed to prison under the orders of the King.  On the  application of these persons, who were so imprisoned, a writ of habea corpus was issued and the return made to  it on  behalf  of  the  King  was  that  they  were imprisoned per speciale mandate Domini Regis (1627 St. Tr. 1 warnel’s case).  This return  was considered  sufficient and the writ  was discharged.  The effect  of this  decision was that King  needed no  authority of law in order to deprive a subject of  his personal  liberty. But  the  Parliament  was quick to  nullify this  decision by enacting the Petition of Right, 1628  and it reaffirmed the right to personal liberty in section  3 of  that Act  and declared  such  a  cause  of imprisonment  to   be  unlawful.   The  principle  that  the Executive cannot  interfere with  the liberty  of a  subject unless such  interference is  sanctioned by the authority of law was thus restored in its full vigour.      Blackstone in  his Commentaries on the Laws of England, vol. 1,  4th ed. p. 105 stated the principle in these terms: E           "-the  law   of  England   regards,  asserts   and      preserves the  personal liberty  of  individuals.  This      personal liberty  consists in  the power of locomotion,      of changing  situation, or  removing  one’s  person  to      whatsoever place  one’s own inclination may direct, for      imprisonment or restraint, unless by due course of law-      It cannot  ever be  abridged at  the mere discretion of      the magistrate, without the explicit per mission of the      laws. Here again, the language of the Great Charter is,      that no  free man  shall be taken or imprisoned, but by      the lawful judgment of his equals, or by the law of the      land." (emphasis supplied) Since then,  the validity  of this  principle has never been doubted and  the classical statement of it is to be found in the oft  quoted passage  from the  judgment of Lord Atkin in Eshugbayi (Eleko) v. Officer Administering the Government of Nigeria (supra) where the learned Law Lord said:           "The Governor  acting  under  the  ordinance  acts      solely under executive powers, and in no sense a Court.      As the.  executive he  can only act in pursuance of the      powers given  to him by law. In accordance with British      jurisprudence no  member of the executive can interfere      with the liberty or 438      property of  a British  subject except on the condition      that he can support the legality of his action before a      Court of  Justice. And  it is  the tradition of British      justice that  Judges should  not shrink  from  deciding      such issues in the face of the executive." Since in  this country  prior to  the  commencement  of  the Constitution, we  were administering  British jurisprudence,

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this constitutional  principle was  equally applicable here. That was  the direct  result of the binding authority of the decision of  the Privy  Council in  the aforementioned case. But quite  apart from  that, the  courts in  India uniformly accepted this constitutional principle as part of the law of the  land.  Vide  Secretary  of  State  for  India  v.  Hari Bhanji(1) and  Province of  Bombay v.  Khushaldas Advani(2). Bose, J.,  in P.  K. Tare v. Emperor(3) quoted with approval the aforesaid  passage from  the judgment  of Lord Atkin and pointed out  that before  the executive  can claim  power to override the  rights of  the subject  "it must show that the legislature has  empowered it  to do  so". The learned Judge also referred  to the  following passage from the dissenting judgment of  Lord Atkin in Liversidge v. Anderson(4) "It has always been  one of  the pillars  of  freedom,  one  of  the principles of liberty for which, on recent authority, we are now fighting that the Judges are no respecter of persons and stand between the subject and any attempted encroachments on his liberty by the executive; alert to see that any coercive action is  justified  in  law."  (emphasis  supplied),  and, pointing out that Lord Macmillan and Lord Wright also agreed with this  principle,  observed  that  these  principles  of liberty "to  which Lord Atkin refers, apply as much to India as elsewhere".  So also  in Vimlabai Deshpande v. Emperor(5) the same  two passages,  one from the judgment of Lord Atkin in Eshugbayi’s  case (supra) and the other from the judgment in Liversidge’s  case (supra) were referred to with approval by Bose and Sen, JJ.      It was  also  accepted  by  a  Division  Bench  of  the Calcutta High  Court consisting  of Malik and Remfry, JJ. in Jitendranath Ghosh  v. The Chief Secretary to the Government of  Bengal(’i)   that   "   in   accordance   with   British jurisprudence, and  with the jurisprudence of British India, no member of the excutive can interefere with the liberty or property of  a British  subject, or  of a  foreigner in  our land, except  on the  condition that  he can,  and, if  duly called upon,  must support the legality of his action before a court  of justice".  The Division  Bench pointed  out that "the courts  can, and  in a  proper case  must consider  and determine the  question whether there has been a fraud on an Act or  an abuse  of  powers  granted  by  the  legislature, Eshugbayi Eleko’s case".      Ameer Ali,  A.C.J., and  S. R. Das, J. also quoted with approval in   re  : Banwarilal  Roy(7) the aforesaid passage from the judgment      (1) [1882] I. L. R. 5 Mad. 273.      (2) [1950] S. C. R. 621.      (3) A. I. R. 1943 Nag. 26.      (4) [1942] 42 A. C. 206.      (5) A. I. R. 1945 Nag. 8.      (6) I. L. R. 60 Cal. 364 at 377.      (7) (48 Cal. Weekly Notes 766 at 780) 439 of Lord  Atkin in  Eshugbayi Eleko’s case (supra) and relied on the  decision in  Jitendranath Ghosh’s  case (supra)  and particularly the observations from the judgment in that case which I  have just  reproduced. These  observations  clearly show that in our country, even in pre-constitution days, the executive was  a limited  executive, that  is, an  executive limited by law and it could act only in accordance with law. B      It would  be seen  from the above discussion that, even prior to the Constitution, the principle of rule of law that the executive  cannot act  to  the  prejudice  of  a  person without the  authority of  law was recognised as part of the

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law of  the land  and  was  uniformly  administered  by  the courts. It  was clearly  ’law in  force’ and  ordinarily, by reason of Article 372, it would have continued to subsist as a distinct  and separate  principle of  law even  after  the commencement of  the Constitution. But when the Constitution was enacted,  some aspects  of this principle of rule of law were   expressly   recognised   and   given   constitutional embodiment  in  different  Articles  of  the  Constitution.. Thereafter they  did not  remain in  the realm  of unwritten law. Article  21 enacted one aspect of the principle of rule of law that executive cannot deprive a person of his life or personal liberty  without  authority  of  law  and  added  a requirement that  the law  which authorises such deprivation must prescribe  a procedure. Another aspect of the principle of rule  of law  was enacted  in clause  (1) of  Article 31. namely, that  no one  shall be deprived of his property save by authority of law. That is why it was pointed out by Shah, J. in  R .C. Cooper’s case (supra) that "Clauses (1) and (2) of Article  31 subordinate  the exercise of the power of the State to  the basic  concept of  the rule  of law".  A third aspect was  constitutionailsed  in  various  sub-clauses  of clause  (1)   of  Article  19  inhibiting  executive  action unsupported by  law, which  conflicted  with  the  different freedoms guaranteed  in these  sub-clauses. Then Article 265 recognised and  enacted a yet fourth aspect, namely, that no tax shall  be levied and collected without authority of law. Article 19,  clause (1),  Article 21, Article 31, clause (1) and  Article  265  thus  embody  different  aspects  of  the principle of  rule of law. We are concerned in these appeals only with  Article 21  and, therefore,  I shall  confine  my discussion only to that Article.      Now, to  my mind,  it is clear that when this principle of rule of law that the executive cannot deprive a person of his liberty  except by  authority of  law, is recognised and embodied as  a fundamental  sight and  enacted  as  such  in Article 21,  it is  difficult to  comprehend  how  it  could continue  to   have  a   distinct  and  separate  existence, independently and  apart from  this Article  in which it has been given  constitutional vesture.  l fail  to see  how  it could continue  in  force  under  Article  372  when  it  is expressly recognized  and embodied as a fundamental right in article 21  and finds  a place  in the express provisions of the Constitution.  Once this  principle  is  recognised  and incorporated in  the Constitution  and forms  part of it, it could  not  have  any  separate  existence  apart  from  the Constitution, unless  it were  also enacted  as a  statutory principle by some positive law of the State. This position 440 indeed become  incontrovertible when  we notice  that, while recognising and  adopting this principle of rule of law as a fundamental right,  the Constitution  has defined  its scope and ambit  and imposed  limitation on  it in  the  shape  of Article 359A,  clauses (1)  and (1A). When the constitution- makers have  clearly intended  that  this  right  should  be subject to the limitation imposed by Article 359, clause (1) and (1A), it would be contrary to all canons of construction to  hold   that  the   same   right   continues   to   exist independently, but  free  from  the  limitation  imposed  by Article 359, clauses (1) and (1A). Such a construction would defeat the object of the constitution-makers in imposing the limitation under  Article 359, clauses (1) and (1A) and make a mockery  of that  limitation. The  consequence of  such  a construction would be that, even though a Presidential order is issued  under clause  (1) of  Article 359  suspending the right to  move  the  court  for  enforcement  of  the  right

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guaranteed under Article 21, the detenu would be entitled to ignore the Presidential order and challenge the order of the detention on  the ground  that it is made otherwise, than in accordance with  law, which  is precisely the thing which is sought to  be interdicted  by the  Presidential  order.  The Presidential order would in such case become meaningless and ineffectual. Can  an interpretation  be accepted which would reduce  to   futility  Article   359,  clause   (l)  in  its application  in   relation  to   Article  21   ?  Could  the constitution-makers have  intended such  a meaning? The only explanation which  could be offered on behalf of the detenus was that  the object of Article 359, clause (1) is merely to prevent a person from moving the Supreme Court under Article 32 for enforcing the right of personal liberty and it is not intended to  effect the enforcement of the right of personal liberty based  on the  rule of  law by moving the High Court under  Article   226.  But   this  explanation   is   wholly unconvincing.  It   is  difficult   to  understand  why  the constitution-makers should  have intended  to bar  only  the right to  move the  Supreme Court under Article 37 in so far as the.  right of personal liberty is concerned. There would be no  point in preventing a citizen from moving the Supreme Court directly  under Article  32 for  securing his  release from illegal  detention, while  at the  same time leaving it open to  him to  move the High Court for the same relief and then to  come to  the Supreme Court in appeal, if necessary. That would  be wholly  irrational and meaningless Therefore, the only way in which meaning and effect can be given to the Presidential order  suspending the  enforcement of the right of personal  liberty  guaranteed  under  Article  21  is  by holding  that  the  principle  of  rule  of  law,  that  the executive cannot  interfere with the personal liberty of any person except  by authority of law, is enacted in Article 21 and it  does not  exist as a distinct and separate principle conferring a  right of  personal liberty,  independently and apart from  that Article. Consequently, when the enforcement of the  right of personal liberty conferred by Article 21 is suspended  by   a  Presidential  order,  the  detenu  cannot circumvent the Presidential order and challenge the legality of his  detention by  falling back  on the supposed right of personal liberty based on the principle of rule of law.      It was  also said  on behalf  of the detenus that under our constitutional  set up, the executive is bound to act in accordance with law and 441 this obligation  of the executive arises from the very basis of the  doctrine of distribution of powers amongst different bodies created by the Constitution as also from the terms of Articles  73,   154  and   256  of  the  Constitution.  This obligation, contended the detenus, could be enforced against the executive  under Article 226 by issue of a writ "for any other purpose". Now, it is true that under our Constitution, the executive  is a limited executive and it is bound to act in accordance  with  law  and  cannot  disobey  it.  If  the Maintenance of  Internal Security  Act, 1971  says that  the executive shall  be entitled  to detain a person only on the fulfillment  of   certain  conditions  and  according  to  a specified procedure, it cannot make an order of detention if the prescribed conditions are not fulfilled or the specified procedure is  not followed.  The executive  is  plainly  and indubitably subordinated  to r  the law  and it cannot flout the mandate  of the  law but must act in accordance with it. The Judicial Committee of the Privy Council pointed out this constitutional position in Eastern Trust Company v. Mckenzie Mann &  Co. Ltd.(’)  in an  appeal from the Supreme Court of

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Canada: "The  non-existence of  any right to bring the Crown into Court does not give the Crown immunity from all law, or authorize the  interference by the Crown with private rights at its  own mere  will-It is  the duty  of the  Crown and of every branch  of the Executive to abide by and obey the law. (emphasis supplied)".  This rule  must naturally  apply with equal force  in our  constitutional set  up  and  -that  was recognised by  this Court  in Rai  Sahib Ram Jawaya Kapur v. The State  of Punjab(2)  where Mukherjea,  J.,  speaking  on behalf of  the Court  said: "In  India, as  in England,  the executive  has   to  act  subject  to  the  control  of  the legislature"  and   proceeded  to   add:   "-the   executive Government are  bound to  conform not only to the law of the land but  also to  the provisions  of the  Constitution-" In Bharat Singh’s  case (supra)  also, this  Court pointed oui: "our federal  structure is  founded on  certain  fundamental principles: (1)  the sovereignty  of the people with limited Government authority  i.e. the  Government must be conducted in accordance  with the  will of the majority of the people. The people  govern themselves through their representatives, whereas the  official agencies  of the  executive Government possess only such powers as have been conferred upon them by the people;  (2) There is distribution of powers between the three  organs   of  the   State-Legislative,  executive  and judicial-each organ  having some check direct or indirect on the other.  and (3)  the rule of law which includes judicial review of arbitrary executive action". The obligation of the executive to  act according  to law  and  not  to  flout  or disobey it  is, therefore,  unexceptionable  and  cannot  be disputed. But this obligation, in so far as personal liberty is concerned,  is expressly  recognised  and  enacted  as  a constitutional provision  inter alia  in Article 21 and when the Constitution itself has provided that the enforcement of this obligation may be suspended by a Presidential order, it is difficult  to see  how the intention of the constitution- makers can  be allowed  to be  defeated by holding that this obligation exists  independently of article 21 and it can be enforced   despite    the   limitation    imposed   by   the constitutional provision The same reasoning which I      (1) [1915] A C. 750.      (2) [19551 2 S. C. R. 225 442 have elaborated  in the  preceding paragraph  would  equally apply to repel the present argument.      Before I  go to  the decided cases, I must refer to one argument which strongly supports the view I am taking. It is almost conclusive.  It is  an  argument  for  which  I  must express my  indebtedness to  Prof. P.  K.  Tripathi.  In  an article written  on ’Judicial  and Legislative  Control over the Executive  during Martial  Law’  and  published  in  the Journal Section  of All  India Reporter at page 82, Prof. P. K. Tripathi has suggested that considerations of Martial Law may  support   the  conclusion  that  a  Presidential  order mentioning Article 21 takes away, wholly and completely, the right of  an individual  to obtain  a writ  of habeas corpus challenging the  legality of his detention. I must of course hasten to  make it  clear that  there is  no Martial law any where in  the  territory  of  India  at  present  and  I  am referring to  it only  in order  to buttress  the conclusion otherwise reached  by me. The concept of Martial law is well known in  the British  and American  jurisprudence.  When  a grave emergency  arises in  which the executive finds itself unable to  restore order by employing the ordinary ‘civilian machinery and  it becomes  necessary for it to use force, it may declare  what is  commonly termed ’martial law’. Martial

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law means  that the  executive calls the military to its aid and the  military, acting under the general authority of the executive, proceeds  to quell  violence  by  violence.  When martial law  is in force, it is well settled that the courts cannot issue  a writ of habeas corpus or otherwise interfere with the  military authorities  or the  executive to protect the life  or liberty  of an  individual, even  if illegal or mala fide  action is  taken or threatened to be taken by the military authorities  or the  executive. To  give  only  one example: In Ireland in John Allen’s case(’), the martial law authorities ordered  all persons  to deposit their fire arms within twenty-four  hours with  the army authorities on pain of death.  John Allen.  who failed to obey, was arrested and sentenced by  the military  tribunal, which  was, in  law, a mere body  of army  men advising  the officer commanding, to death, and the martial law authorities announced the day and date when  he was  to be  executed. The  court was  moved on behalf of  John Allen  on the  ground that  the order of the military tribunal  was invalid,  but the  court  refused  to interfere on  the theory  that when  martial law is properly declared, the  court will not issue habeas corpus during the period when  martial law  is  in  force.  It  is  the  basic characteristic and  essence of  martial law  that during the time that  it is in force, the individual cannot enforce his right to  life and  liberty by resorting to judicial process and the  courts cannot  issue the  writ of  habeas corpus or pass any similar orders.      Now, under our Constitution there does not appear to be any express  provision conferring  power on the executive to declare martial  law. But  it is  implicit in  the  text  of Article 34  of the  Constitution  that  the  Government  may declare martial  law in  any area  within the  territory  of India. What  are the  legal implications and consequences of declaration of  martial law is not provided any where in the Cons-      (1) [1921] 2 Irish Reports 241. 443 titution. It  is, therefore,  obvious that  merely declaring martial law  Would not, by itself, deprive the courts of the power to  issue the  writ of  habeas corpus or other process for the protection of the right of the individual to lie and liberty. In  our country,  unlike England, the right to life and liberty  is secured as a fundamental right and the right to move  the Supreme  Court for enforcement of this right is also guaranteed  as a  fundamental right.  Also the power to issue a  writ or  order in  the nature  of habeas corpus has been  expressly   conferred  of   the  High   Courts  by   a constitutional provision,  namely, Article  226.  Therefore, the declaration  of martial law, which is not even expressly provided in the Constitution, cannot override the provisions of the  Article conferring  the right to life and liberty as also of  Articles 32  and 226  and, unless  the right  of an individual to  move the  courts for enforcement of the right to life  and liberty  can be  suspended or  taken away by or under  an   express  provisions  of  the  Constitution,  the individual would  be entitled  to enforce  the right to life and liberty  under Article 32 or Article 226 or by resorting to the  ordinary process  of law,  even during  martial law. That would  be contradictory  of  the  basic  and  essential feature of  martial law  and make  it impossible  to  impose effective martial  law anywhere at any time in the territory of India.  Such a consequence could never have been imagined by the  constitution-makers. They  could never have intended that the Government should have the power to declare martial law and  yet it  should be  devoid of the legal effect which

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must  inevitably  follow  when  martial  law  is  in  force. Moreover, Article  34 itself  presupposes that acts contrary to law  may be  committed by The military authorities or the executive during  the time  when martial law is in force and that is why it provides that after the martial law ceases to be in  force, Parliament may by law indemnify "any person in the service  of the  Union or of a State or any other person in respect  of any  act done  by him  in connection with the maintenance  or  restoration  of  order  in  any  area-where martial law  was in  force or  validate any sentence passed, punishment inflicted,  forfeiture ordered  or other act done under martial  law in  such area".  This  provision  clearly postulates that  during the  time that  martial  law  is  in force, no judicial process can issue to examine the legality of any act done by the military authorities or the executive in connection  with the maintenance or restoration of order. But,  how   is  this   result  to   be  achieved  under  the Constitution ?      The only provision in the constitution which authorises temporary suspension  or taking  away of  the  right  of  an individual to move any court for enforcement of his right to life and  liberty is  Article 359,  clause (  I )  . If  the Presidential  order   under  clause   (1)  of   Article  359 suspending  enforcement   of  the  fundamental  right  under Article 21  were construed not to have the effect of barring an individual  from  moving  the  court  for  impugning  the legality of  the act  of the  executive interfering with his life or  liberty, on  the assumption that in doing so, he is merely enforcing his right to life or personal liberty based on the  rule of  law. the result would be that even when and where martial  law is in force, courts will continue to have the power  to  examine  the  legality  of  the  act  of  the executive, because, as explained earlier, the mere 444 declaration of martial law does not, under our Constitution, have the  effect of  taking away  that power.  That would be plainily an  insufferable situation  which would  carry  the power of  courts even  beyond that  claimed  by  the  United States courts  in the case of the ex parte Milligan(’) which case went  to the  farthest limit  and which  has  for  that reason been  criticised by  great  authorities  like  E.  S. Corwin and  has not  been consistently  followed even by the United States  Supreme Court  Vide Moyer  v. Peabody(2)  and Duncan v.  Kohanmeku.(3) There  can be  no two opinions that during martial  law the  courts cannot  and should  not have power to  examine the legality of the action of the military authorities or  the  executive  on  any  ground  whatsoever, including the ground of mala fide. But, if the courts are to be prevented  from exercising such power during martial law, that situation  call be brought about only by a Presidential order issued  under Article  359, clause (1) and in no other way and  the Presidential order in so far as it suspends the enforcement of the right of personal liberty conferred under Article 21  must  be  construed  to  bar  challenge  to  the legality of  detention in  any court,  including the Supreme Court and  the High Courts, whilst the Presidential order is in operation.      I may  also in this connection refer to the decision of the House  of Lords in Attorney General Y. De Keyser’s Royal Hotel.(4) There,  in May  1916, the Crown, purporting to act under the  Defence of  Realm Consolidation Act, ]914 and the Regulations made  thereunder took  possession of a hotel for the purpose  of Housing  the Headquarters’  personnel of the Royal Flying Corps and denied tthe legal right of the owners to compensation.  The owners  yielded  up  possession  under

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protest and  without prejudice  to  their  right  and  by  a Petition of  Right, they  asked for  a declaration that they were entitled  to compensation  under the Defence Act. 1842. The Crown  was plainly  liable to pay compensation under the Statute, but  it sought  to justify  its  action  in  taking possession of  the hotel  without payment  of  compensation, under the  sanction of  the Royal Prerogative. Tile question which, therefore,  arose for  consideration before the House of Lords  was whether the Royal Prerogative was available to the  Crown  for  taking  possession  of  the  Hotel  without compensation, when  the statute  authorised taking  of  such possession but  on condition on payment of compensation. The House of  Lords  unanimously  held  that,  in  view  of  the statutory provision on the subject, the Royal Prerogative to take  property  without  payment  of  compensation  did  not subsist and  the principle  laid  down  was  that  where  by Statute,  the  Crown  is  empowered  to  do  what  it  might heretofore have done by virtue of its prerogative, it can no longer act  under the  prerogative and  must act  under  and subject to  the conditions  imposed  by  the  statute.  Lord Dunedin in the course of his speech observed:           "None the  less, it is equally certain that if the      whole ground  of something  which could  be done by the      prerogative is  covered  by  the  statute,  it  is  the      statute that rules." (1) (1866) 4 Wallace 2. (2) (1909) 212 U. S. 76. (3) (1945) 327 U. S. 304. (4) [1920] A. C. 508. 445 Lord Atkinson  quoted with  approval the  following pregnant passage A  from the  judgment of  the Master of the Rolls in the same case .           "Those  powers   which  the   executive  exercises      without Parliamentary authority are comprised under the      comprehensive term  of the prerogative. Where, however,      Parliament has  intervened and  has provided by statute      for powers,  previously within  the prerogative,  being      exercised in  a particular  manner and  subject to  the      limitations and  provisions contained  in the  statute,      they can  only be  so exercised.  otherwise,  what  use      would there  be in  imposing limitations,  if the Crown      could at  its pleasure  disrgard them  and fall back on      prerogative ?", and pointed  out that  the question  posed by the Maqster of the Rolls  was  unanswerable.  The  learned  Law  Lord  then proceeded to add:           "It is  quite obvious that it would be useless and      meaning less for the Legislature to impose restrictions      and limitations  upon, and to attach conditions to, the      exercise by  the Crown  of the  powers conferred  by  a      statute, if  the Crown  were free  at its  pleasure  to      disregard  these  provisions,  and  by  virtue  of  its      prerogative do the very thing the statutes empowered it      to do." The other learned Law Lords who participated in the decision also made  observations to  the same effect in the course of their speeches.      Now it is obvious that the contention of the detenus in the present  case is very similar to that advanced on behalf of the  Crown in  De Keyser’s Royal Hotel’s case (supra). It almost seems  to be  an echo  of that contention and it must inevitably be  answered the  same way.  When  the  right  of personal liberty  based on  the rule  of law  which  existed immediately prior  to the  commencement of  the Constitution

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has been  enacted in the Constitution as a fundamental right in Article  21 with  the limitation  that, when  there is  a Proclamation of Emergency, the President may, by order under Article 359,  clause (1)  suspend  its  enforcement,  it  is impossible to  imagine how  that right  of personal  liberty based on the rule of law can continue to exist as a distinct and  independent  right  free  from  the  limitation  as  to enforcement contained  in Article  359, clause (1). It would be meaningless  and futile  for the  constitution-makers  to have imposed this limitation in regard to enforcement of the right of  personal liberty  guaranteed by Article 21, if the detenu could,  with impunity,  disregard such limitation and fall back on the right of personal liberty based on the rule of law.      There is a decision of this Court in Dhirubha Devisingh Gohil v.  The State of Bombay(l) which clearly supports this view. The  question which  arose for  determination in  this case was  whether the Bombay Taluqdari Tenure Abolition Act, 1949 was  a valid  piece of  legislation. When  this Act was enacted by the Bombay Legislature,      (1) [1955] I S. C. R. 691. 446 the Government  of India  Act, 1935  was in  force  and  the validity of  this Act  was challenged  on the ground that it was in  violation of  section 299,  sub-section (2)  of  the Government of  India Act,  1934. Since this Act was included in  the   Ninth  Schedule   to  the   Constitution  by   the Constitution of India (First Amendment) Act, 1951, the State con tended  that by  reason of  Article 31-B,  this Act  was immune from  attack of the kind put forward on behalf of the petitioner. Art.  31-1 provides  inter alia that none of the Acts  specified  in  the  Ninth  Schedule  nor  any  of  the provisions thereof  shall be  deemed to  be void  or ever to have become void on the ground that such act or provision is inconsistent with  or takes  away or  abridges ally  of  the right  conferred   by  any   provisions  of  Part  III.  The petitioner disputed  the applicability  of Art. 31 -B on the ground that  the protection  under that article was confined only to  a challenge  based on the provisions of Part III of the Constitution and did not extend to a challenge. based on violation of  s. 299,  sub-s. (2) of the Government of India Act,  1935.   The  petitioner  relied  on  the  words  "  is inconsistent with  or takes  away  or  abridges  any  rights conferred by  any provisions" of Part III and contended that inconsistency with  or taking  away or  abridgement  of  the right conferred  by s.  299, sub-s. (2) of the Government of India Act,  1935 was  not within the protection of Art 31-B. This contention  of the  petitioner was negatived and it was held by this Court speaking through Jagannatha Das, J.:           "When  Article   31-B  protects   is  not  a  mere      "contravention of  the provisions"  of Part  III of the      Constitution but  an attack  on the  grounds  that  the      impugned Act  is "inconsistent  with or  takes away  or      abridges any  of the rights conferred by any provisions      of this Part." one of the rights secured to a person by      Part III  of the  Constitution  is  a  right  that  his      property shall be acquired only for public purposes and      under a’law  authorising such acquisition and providing      for compensation  which is  either  fixed  by  the  law      itself or regulated by principles specified by the law.      That is  also  the  very  right  which  was  previously      secured  to   the  person  under  section  299  of  the      Government of  India Act. The challenge now made to the      validity of  the impugned  Act is  based on the alleged      violation of that right." ’7 But it is urged, that even

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    so, article  31-B protects  only the  violation of  the      fundamental right  in so  far as  "it was  conferred by      Part III  of the  Constitution"  and  that  this  right      cannot  be   said  to  have  been  "conferred"  by  the      Constitution. We  cannot agree  with  this  contention.      This is  clearly a case where the concerned right which      was secured  under section  299 of  the  Government  of      India Act  in the form of a fetter on the competency of      the  Legislature   and  which   in  substance   was   a      fundamental right,  was lifted into the formal category      of a  fundamental right  along with  other  fundamental      rights recognised in the present Constitution. There is      therefore nothing  inappropriate in  referring to  this      right which  was pre  existing, along  with  the  other      fundamental rights  for the  first time secured by this      Constitution, when grouping them 447      together, as  fundamental  rights  "conferred"  by  the      Constitution." This Court  held that  when Article  31-B protected  the Act against attack  on the  ground that the Act is "inconsistent with or  takes away  or abridges any of the rights conferred by any  provisions of  "Part III, the protection extended to giving immunity  against violation of the 8 right secured by section 299, subsection (2) of the Government of India, 1935 because that  was the very right lifted into the category of fundamental right  and enacted  as Article 31, clause (2) of the   Constitution    and   it    could   accordingly   with appropriateness, be  referred to  as the  right conferred by Article 31,  clause (2).  On the parity of reasoning, it may be said that the right based on the principle of rule of law that no  one shall  be deprived  of  his  life  or  personal liberty except by authority of law, which was a pre-existing right, was lifted into the category of fundamental right and enacted as  Article 21  and hence  it became  a  fundamental right conferred  by  Article  21  and  ceased  to  have  any distinct and separate existence.      The maxim  ’expressum facit  cessare tacitum’  that  is what is  expressed makes  what is  silent cease,  would also clearly be  applicable in  the present  case. This  maxim is indeed a  principle of logic and common sense and not merely a technical  rule of  construction. It  was applied  in  the construction of  a constitutional  provision in Shankara Rao Badami  v.  State  of  Mysore(1).  The  argument  which  was advanced in  that case  was that  the  existence  of  public purpose  and   the  obligation   to  pay  compensation  were necessary concomitants  of compulsory acquisition of private property and  so the  term ’acquisition’ in Entry 36 of List II of  the Seventh  Schedule to  the  Constitution  must  be construed as  importing  by  necessary  impliction  the  two conditions  of   public  purpose  and  payment  of  adequate compensation, and  consequently, the  Mysore  (Personal  and Miscellaneous) Inams Abolition Act, 1955, which provided for acquisition of the rights of the inamdars in inam estates in Mysore  State   without  payment   of  just   and   adequate compensation was  beyond the  legislative competence  of the State Legislature.  This argument was rejected on the ground that the  limitations  of  public  purpose  and  payment  of compensation being  expressly provided  for as conditions of acquisition in  Article  31  (2),  there  was  no  room  for implying either  of these  limitations in the interpretation of the term ’acquisition’ in Entry 36 of List II. Ramaswamy, J., speaking on behalf of the Court observed- G           "It is  true that  under the Common law of eminent      do main  as recognised in Anglo-Saxon jurisprudence the

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    State cannot  take the  property of  its subject unless      such property  is required  for a  public  purpose  and      without compensating  the owner  for its loss. But when      these limitations are expressly provided for in Article      32(2) and  it is further enact- cd that no law shall be      made which takes away or abridges (1) [1969] 3 S. C. R. 1. 448      these safeguards,  and any  such law, if made, shall be      void, there  can be  no room  for implication,  and the      words ’acquisition  of property’  in entry  36 must  be      understood  in  their  natural  sense  of  the  act  of      acquiring property,  without importing  into the phrase      an obligation  to pay compensation or a condition as to      the existence  of a  public purpose. In other words, it      is  not   correct  to   treat  the  obligation  to  pay      compensation as implicit in the legislative entry 33 of      List I  or legislative  entry 36  of List  II for it is      separately and expressly provided for in Article 31(2).      The well  known maxim  expresum fact cessare tacitum is      indeed a  principle of  logic and  commonsense and  not      merely a  technical rule  of construction.  The express      provision in  Article 31  (2) that a law of acquisition      in order  to be  valid must  provide  for  compensation      will, therefore,  necessarily exclude all suggestion of      an  implied  obligation  to  provide  for  compensation      sought to  be imported  into the  meaning of  the  word      "acquisition" in  entry 36  of List  II. In the face of      the express  provision of  Article 31(2), there remains      no  room  for  reading  any  such  implication  in  the      legislative heads." Similarly, in  the present  case, on  an application  of the maxim expressum facit cessare tacitum, the express provision in Article  21 that  no person shall be deprived of his life or personal liberty except according to procedure prescribed by law  will necessarily  exclude a  provision to  the  same effect to  be gathered  or implied from the other provisions of the Constitution.      I find  myself fortified in this conclusion by the view taken on  a similar  question under  the Irish  Constitution which  also   contains  a   catena  of  articles  conferring fundamental rights  Kelly  in  his  book  one,  ’Fundamental Rights in  the Irish  Law and Constitution’ points out "that the  various   fundamental  rights   which  were  previously notionally present  in the  common law have been subsumed in and replaced  by the  written guarantees"  and,  therefore., these  rights   cannot  be   found  elsewhere  than  in  the Constitution. The  decision of  the High Court of Justice in Ireland  in   ’State  (Walsh   and  others)  v.  Lennon  and others"(1) has  also adopted  the same view. The petitioners in this  case, who  were detained  in Arbour  Hill  Military Detention Barracks  awaiting trial  on a  charge  of  murder before a  Military Court  established under Emergency Powers (No. 41)  order, 1940, made an application to the High Court for an  order of  habeas corpus  directed to the Governor of the Detention  Barracks in  which they  were held and for an order of  prohibition directed  to the President and members of  the  Military  Court  before  whom  it  was  ordered  by Emergency Powers  (No. 41F)  order, 1941 that they should be tried. The application inter alia challenged the validity of the Emergency  Powers (No.  41 F)  order, 1941 on the ground that it  was ultra vires the Government, as it directed that the Military Court, which was to try the petitioners. should try them together and so precluded the Court from exercising its discretion  and control  over its  own procedure and was

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thus violative  of the  right of a citizen to insist that he shall not be      (1) 1942 Irish Reports 112. 449 tried on  a criminal  charge save  in due  course of law and was, also  in A  conflict with  the right  of a  citizen  to personal  liberty.   The  right   of  personal  liberty  was guaranteed by  Article 40,  s. 4,  sub-section  (1)  of  the Constitution, while  the right  of a  citizen charged with a criminal offence  to insist  that he shall not be tried save in due  course of law was to be found in Art. 38, section 1. The respondents relied on Article 28, section 3, sub-section (3) of  The Constitution  which provided:  "Nothing in  this Constitution shall  be invoked to invalidate any law enacted by the  Oireachtas which  is expressed to be For the purpose of securing  the public  safety and  the preservation of the State in time of war or armed rebellion or to nulify any act done or  purported to be done in pursuance of any such law." and  contended   that  by  reason  of  this  provision,  the Emergency Powers  (No. 41  F) Order, 1941 was protected from challenge on  the ground  of contravention  of  Article  38, section 1  and Article  40, section  4, sub-section ( 1 ) of the Constitution.  This contention clearly had the effect of putting the  petitioners out  of court  and" therefore, they sought to  get round  this difficulty  by arguing  that  the constitutional rights,  which  they  claimed  to  have  been infringed were  derived not  from the  written constitution, but from  the  Common  Law,  and  consequently  Article  28, section 3, sub-section (3) of the Constitution did not stand in their  way. This  argument, which was very similar to the present argument  advanced  before  us,  was  unhesitatingly rejected by  all the  three judges  who  took  part  in  the decision. Maguire J. said:-           "The  contention   is  that   the   constitutional      principles which  assure  to  a  citizen  his  personal      liberty, his right to resort to this Court for an order      of habeas  corpus, his right that he shall not be tried      on a criminal charge save in due course of law, have as      their source  the Common  Law, and  exist side  by side      with these  rights  in  the  written  Constitution.  In      support of  this contention  reliance is  placed on the      decision of  the Supreme  Court in  Burke’s Case (1940)      I.R. 136),  particularly on the passage in the judgment      of Murnaghan  J. at  p. 171,  where  he  says  ’certain      constitutional   principles    are   stated    in   the      Constitution but  many other  important  constitutional      principles have  been accepted  as existing  in the law      then in force.’ "           I do  not find  in the judgment of Murnaghan J. Or      else where  in the judgments in that case any basis for      the contention  that these  rights are to be found in a      body of  principles which  exist side  by side with the      written Constitution  having their source in the Common      Law, and  of equal  validity with the principles stated      in the  Constitution, and  which on  the argument here,      would have  the added virtue that they are uncontrolled      by Art.  28, s.  3 sub-s.  3. The constitutional rights      relied upon  in this  case  find  clear  expression  in      Article 40  and 38 of the Constitution. In my view they      cannot be found elsewhere than in the Constitution.           The  advantages  of  a  written  Constitution  are      manifest. Such a Constitution can, and our Constitution      does, give 31-833SCI/76 450

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    rights such as these definite and clear expression. Our      Constitution can,  and does, protect them against being      whittled away  save with  great difficulty. The framers      of the  Constitution  have  provided  that,  after  the      passage of  a limited time, many, though not all of the      rights which  it gives  are put  beyond  the  reach  of      interference by ordinary law. The framers have however,      deliberately inserted Art. 28, s. 3, sub-s. 3, which is      clearly designed  to prevent  the Courts  from invoking      anything in  the Constitution to in validate enactments      passed, or to nullify acts done, or which purport to be      done, in  pursuance of  Acts passed  for  securing  the      public safety  or the preservation of the State in time      of war."      Gavan Duffy, J. also observed to the same effect:           "The applicants  seek, in the alternative, to base      their claims  to habeas  corpus  and  prohibition  upon      antecedent rights of personal liberty and regular trial      at Common  Law; but, whether or not the imminent Common      Law of Ireland needed generally any Art. 50 (containing      the laws in force) to retain its vigour, the particular      Common Law  principles here  invoked must  both, in  my      opinion,  of  necessity  have  merged  in  the  express      provisions declaring  how the  two corresponding rights      are to  be in force under the new polity established by      An Bunreacht."      And so did Martin Maguire, J. when he said:           "It is  argued, in  the alternative,  that,  apart      from the  Constitution and  existing side  by side with      it,, there  is a body of constitutional law, founded on      Common Law,  and  comprising  the  same  constitutional      rights which  the prosecutors  seek to  assert, and  in      respect of  which they  demand the  relief  claimed  in      these   proceedings.   This   argument   involves   the      propositions that  the State has two Constitutions, the      one enacted  by the  people, written  and  defined  the      other un-written and undefined, and that the latter may      be invoked,  or called  in aid,  to the  extent even of      defeating the  clear terms  of the Constitution where a      conflict real  or apparent  is  alleged  between  them.      There is  no authority  for these  propositions.  I  am      unable to accept this argument." On this  view, all  the three  judges of the High Court held that the  Emergency Powers (No. 41-F) Order" 1941 was immune from challenge  by reason  of Article  28, section  3,  sub- section (3)  of the Constitution. This decision was taken in appeal and  affirmed by  the Supreme  Court, but  this point about the  continuance of the common law rights side by side in the  constitution, was  not examined since it was obvious that the  Emergency Powers  (No. 41 F) order, 1941 could not be set at naught on the ground of repugnancy to any supposed Common Law  rights. It  will be  seen that  there is a close analogy between  this decision  of the  High Court  and  the present case 451 and the  observations of  the three  judges quoted above are directly applicable here.      The detenus,  however, strongly relied on the decisions of this  court in  Bharat Singh’s  case (supra),  Ibrahim  & Co.’s case  (supra) Bennet  Coleman & Co.’s case (supra) and Shree Meenakshi  Mills’ case  (supra) in  support  of  their contention that  the principle  of  rule  of  law  that  the executive cannot  act to the prejudice of a person except by authority of  law continues  to  exist  as  a  distinct  and independent principle unaffected inter alia by the enactment

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of Article  21. I  have already  referred to these decisions earlier and  it will  be evident from what l have said, that these decisions  do not  lay down any such proposition as is contended for on behalf of the detenus. What these decisions say is  only this, namely, that Article 358 protects against challenge under  Article 19 only such executive action ac is taken under  lawful authority and if any executive action is taken without  authority of  law or.  in pursuance  OF a law which is void, it will not he protected from challenge under Article 19  by Article 353 and it will be void to the extent to which  it conflicts  with Article  19.  These  decisions, properly read,  do not  support the  thesis put  forward  on behalf of the detenus.      The detenus  then relied  on the decision of this Court in Bidi  Supply Co. v. Union of India.(1) There,- an omnibus order was  made under  section 5,  sub-section (7A)  of  the Income Tax Act transferring cases of the petitioner form one place to  another. the  petitioner challenged  this order as being outside  ‘the power  conferred under  section 5,  sub- section (7A)  and hence  violative of the fundamental rights guaranteed to  him by  Articles 14, 19(1)(if) and (b) and 31 of the  Constitution. This Court held that the omnibus order made in this case was not contemplated or sanctioned by sub- section (7A) of section 5 and. therefore, the petitioner was still entitled  to the  benefit of  the provisions  of  sub- sections (1)  and (2) of section 64 and since the Income Tax authorities had  by an  executive order, unsupported by law, picked out the petitioner for discriminatory treatment there was violation OB the equality clause of the Constitution and hence the petitioner was entitled to relief under Article 32 of the  Constitution setting  aside the impugned order. S.R. Das, C.J., speaking on behalf of the Court, observed:           "As said  by Lord  Aktin in Eshugbayi Eleko’s case      the executive  can only  Act in pursuance of the powers      given to  it by  law and  it cannot  interfere with the      liberty, property  and rights  of the subject except on      the condition  that if  can support the legality of its      action before  the Court.  were there was no such order      of  transfer   as  is  contemplated  or  sanctioned  by      subsection  (7A)  of  section  5  and,  therefore.  the      present assessee  still has  the right,  along with all      other Bidi  merchants carrying  on business in Calcutta      to have  his assessment  proceedings before the Income-      tax: officer  of  the.  area  in  which  his  place  of      business is  situate. The  income- tax authorities have      by an executive order, unsupported by      (1) [1156] S. C. R. 267. 452      law, picked out this petitioner and transferred all his      cases by  an omnibus order unlimited in point of time."      (emphasis supplied). and Since  the action  of  the  Income-tax  authorities  was contrary to  sub-sections (1)  and (2)  of section  64,  the impugned order  was held to be bad. Hence it will be noticed that the  impugned order  operated to  the prejudice  of the petitioner by affecting his rights under section (1) and (2) of Section  64 but it did not affect any of his rights under Article 19  or Article  21 or  clause Cl)  of Article 31 and therefore, the  principle of  rule of law that the executive cannot act to the prejudice of a person without authority of law could by legitimately invoked. It continued to be in law in force  to the  extent to  which it was not recognised and enacted in any provision of the Constitution.      The next  decision  to  which  I  must  refer  in  this connection is  Bishan Das & Ors v. The State of Punjab. This

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was a  petition under Article 32 of the Constitution and the action of  the officers  of the State Government impugned in this case  was forcible  dispossession of the petitioners of properties which  were in  their management  and possession. The challenge  to the impugned action of the officers of the State Government  was based  on violation of the fundamental right guaranteed  under clause (1) of Article 31. This Court upheld the  challenge and struck down the impugned action as being without  the authority of law and while doing so. made the following observations which were strongly relied onp on behalf of  the detenus:  "Before we  part with this case, we feel it  our duty  to say that the executive action taken in this case  by the  State and  its officers is destructive of basic principle  of  the  rule  of  law-the  action  of  the Government  in   taking  the   law  into   their  hands  and dispossession the  petitioners  by  the  display  of  force, exhibits a  callous disregard  of the normal requirements of the rule  of law-We  have here  a highly  discriminatory and autocratic act  which deprives a person of the possession of property without  reference to  any law or legal authority". (emphasis supplied).  These observations Made in the context of a petition for enforcement of the fundamental right under Article 31. clause (1) clearly show that this Court regarded the principle  of rule  of  law  that  no  person  shall  be deprived of  his property  "without reference  to any law or legal authority’"  as embodied in Article 31, clause (1) and did not  rely upon  this principle  of  rule  of  law  as  a distinct and  independent principle  apart from  Article 31, clause (1):  otherwise the  petition under  Article 32 would not have  been maintainable  and this  Court could  not have granted relief.      The last decision to which I must refer is the decision of  this  Court  in  State  of  Bihar  v.  Kameshwar  Prasad Verma.(2) That  was a  case arising  out of a petition for a writ of  habeas corpus  filed under. Article 226 for release of one  Bipat Gope  from illegal  detention. This Court held that the  State Government  had failed  to show  under  what lawful authority  Bipar had  been  re-arrested  and  in  the absence of such lawful authority, the detention was illegal. Kapur, J.,  speaking on  behalf of  the Court  referred with approval to the observations of Lord Atkin      (1) [1962] 2 S. C. R. 69.      (1) [1963] 2 S. C. R. 183. 453 in Eshugbayi  Eleko’s case  (supra) and  pointed out: "It is the same  A jurisprudence  which has  been adopted  in  this country on  the basis  of which  the courts  of this country exercise jurisdiction".  These observations were relied upon on behalf  of the  detenus to  contend that the principle of rule of  law in  Eshugbayi Eleko’s  case (supra) was held by this Court to have been adopted in this country and it must, there fore,  be enforced  independently of Article 21. But I do not  think that  is the elect of these observations. What Kapur, J.,  said was only this, namely that the principle of rule of  law in  Eshugbayi Eleko’s  case  (supra)  had  been adopted in this country. He did not make it clear how it had been adopted  nor did  he say  that it had been adopted as a distinct  and   independent   principle   apart   from   the fundamental rights. There can be no doubt that the principle in Eshogbayi  Eleko’s case  (Supra) had been adopted in this country in  Article 21  to the  extent to  which it protects personal liberty.  I will,  therefore, be seen that there is no decision  of this  Court which says that there is a right of personal  liberty based  on the  rule of law distinct and independent from that guaranteed by Article 21.

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    I must now turn to the decision of this Court in Makhan Singh v.  State of  Punjab  (supra)  on  which  very  strong reliance was  placed on  behalf of  the detenus.  That was a decision given  in a  batch of  twenty-six appeals  from the decisions of  the High  Courts of  Bombay  and  Punjab.  The appellants in  these six  appeals were detained respectively by the  Punjab and  the Maharashtra  State Governments under Rule 30(i)(b)  of the  Defence of  India Rules  made by  the Central Government in exercise of the powers conferred on it by s.  3 of  the Defence  of  India  ordinance,  1962.  They applied  to   the  Punjab   and  the   Bombay  High   Courts respectively under  s. 491(1)  (b) of  the Code  of Criminal Procedure and  alleged that  they had  been  improperly  and illegally detained. Their contention was that s. 3(2)(15)(i) and s.  40 of  the Defence of India Act, 1962 which replaced the Defence of India ordinance and Rule 30(l)(b) under which they were  detained were  constitutionally  invalid  because they contravened their fundamental rights under Arts. 14, 21 and 22(,4)  (5) and  (7) of  the Constitution  and  so  they claimed that  an order  should be  passed  in  their  favour directing the  respective State  Governments to  set them at liberty There  was in  operation at that time a Proclamation of  Emergency   dated  26th  October,  1962  issued  by  the President under  Art. :352,  clause (1  ) on  account of the Chinese aggression.  The President  had also issued an order dated  3rd   November,  1962  under  Art.  359,  clause  (1) suspending the right of any person to move any court for the enforcement of  the rights  conferred by  articles 21 and 22 "if such  person has been deprived of any ,such rights under the Defence of India ordinance, 1962 (4 of 1962) or any rule or order  made thereunder."  The  contention  of  the  State Governments based  on this  Presidential order  was-and that contention found  favour  with  both  High  Courts-that  the Presidential  order   created  a  bar  which  precluded  the appellants from  maintaining  the  petitions  under  s.  491 (1)(b)  of   the  Code   of  criminal   Procedure.  On  this contention. two  questions arose  for  determination  before this Court.  The first was as to what was the true scope and effect of  the Presidential order and the second was whether the bar created by the Presidential order 454 operated in  respect of  applications made by the appellants under s.  491(1) (b) of the Code of Criminal Procedure. This Court in  a majority  judgment delivered  by Gajendragadkar, J., analysed  the pro  visions of  Art. 359,  clause (1) and held that  the words  "any court"  in that  Article must  be given their  plain grammatical meaning and must be construed to mean  any court  of competent  jurisdiction  which  would include the  Supreme Court  and the High Courts before which the specified  rights can  be enforced by the citizens". The majority judgment  then proceeded to add: "The sweep of Art. 359(1) and  the Presidential  order issued  under it is thus wide enough  to include  all claims  made by citizens in any court of  competent jurisdiction  when lt  is shown that the said claims  cannot be  effectively adjudicated upon without examining the  question as  to whether  the citizen  is,  in substance, seeking  to enforce  any of  the  said  specified fundamental  right"   Having  thus  disposed  of  the  first question, the  majority judgment  went on  to  consider  the second question  and  after  analysing  the  nature  of  the proceedings under  s. 491(1)(b)  of  the  Code  of  Criminal Procedure, held  that the prohibition contained in Art. 359, clause (1)  and the  Presidential order would apply "as much to proceedings under s. 491 ( 1 ) (b) as to those under Art. 226(1) and  Art. 32  (1)". It was obvious that on this view,

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the petitions  under s.  491(1)(b)  were  not  maintainable" since the only ground on which they challenged the orders of detention was  that the provisions of s. 3(2)(15)(i) as well as rule  30(l)(b) were invalid as offending against Articles 14, 21  and 22 and in the circumstances it was not necessary for the.;  Court to  express any opinion on the questions to what were  the  pleas  available  to  a  citizen  under  the Presidential order  in challenging the legality or propriety of his  detention.  Still  however,  the  majority  judgment proceeded to  give its  opinion  on  this  question  in  the following terms:           It still  remains to  consider what  are the pleas      which  are  now  open  to  the  citizens  to  take  ill      challenging the  legality or  the  propriety  of  their      detentions either  under s.  491(1) (b)  of the Code or      Art. 226(1)  of the  Constitution. We have already seen      that the  right to move any court which is suspended by      Art. 359(1 ) and the Presidential order issued under it      is the  right for the enforcement of such of the lights      conferred by Part III as may be mentioned in the order.      If in  challenging the validity of his detention order,      the detenu  is pleading  any right  outside the  rights      specified in  the order, his right to move any court in      that behalf‘  is not  suspended, because  it is outside      Art. 359(l)  and consequently  outside the Presidential      order itself.  Let us  take a  case where  a detenu has      been detained  in violation of the mandatory provisions      of the  Act. In  such a  case, it  may be  open to  the      detenu to contend that his detention is illegal for the      reason that  the mandatory  provisions of  the Act have      been contravened.  Such a  plea is  outside Art. 359(1)      and the  right of the detenu to move for his release on      such a  ground cannot  be affected  by the Presidential      order. 455           Take also  a case where the detenu moves the Court      for A  a writ  of habeas  corpus on the ground that his      detention has  been  ordered  malafide.  It  is  hardly      necessary to  emphasise that  the exercise  of a  power      malafide  is  wholly  outside  the  scope  of  the  Act      conferring the  power and  can always  be  successfully      challenged. It  is true that a mere allegation that the      detention is  malafide would  not be  enough the detenu      will have  to prove the malafides. But if the malafides      are  alleged,  the  detenu  cannot  be  precluded  from      substantiating his  plea  on  the  ground  of  the  bar      created by Art. 359(1) and the Presidential order. That      is another kind of plea which is outside the purview of      Art. 359(1).  We ought  to add that these categories of      pleas have been mentioned by us by way of illustration"      and so,  they should  not be read as exhausting all the      pleas which  do not  fall within  the  purview  of  the      Presidential order."      The strongest  reliance was  placed on  behalf  of  the detenus on  these observations  in the majority judgment. It was contended on behalf of the detenus that the observations clearly showed  that if  an order of detention is challenged on the  ground that  it is  in violation  of  the  mandatory provisions of the Act or is made malafide, such a plea would be outside Art. 359, clause (1) and would not be barred by a Presidential order  specifying  Art.  21.  The  detenus,  in support of this contention leaned heavily on the words ’such a plea is outside Art. 359(1) and the right of the detenu to move for  his release on such a ground cannot be affected by the Presidential  order", and  "that is another kind of plea

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which is  outside the  purview of Art. 359(,1)" occurring in these observations and urged that such a plea was held to be permissible because  it was  outside the purview of Art 359, clause (1)  and not  because it was outside the terms of the particular Presidential order.      Now, at  first blush,  these observations  do  seem  to support the  contention of  the detenus.  But there  are two very good  reasons why I do not think these observations can be of  much help in the determination of the question before us. In the first place, the questions to what were the other pleas available  to a  detenu in challenging the legality or propriety of  his detention,  despite the Presidential order dated 3rd  November, 1962, was not in issue before the Court and  did   not  fall   to  be   decided  and  the  aforesaid observations made  by  the  Court  on  this  question  were, therefore,  clearly   obiter.   These   observations   would undoubtedly be entitled to great weight, but, as pointed out by this  Court in  H. Maharajadhiraja  Madhav Rao Jiwaji Rao Scindia Bahadur  & Ors.  v. Union  of  India(1)  "an  obiter cannot take the place of the ratio. Judges are not oracles". These observations  do  not,  therefore,  have  any  binding effect and  they cannot  be regarded  as conclusive  on  the point. Moreover,  it must  be remembered  that when  we  are considering the  observations of  a high  judicial authority like this Court, the greatest possible care must be taken to relate the  observations of  a judge  to the  precise issues before him      (1) [1971] 3 S. C. R. 9. 456 and to  confine such  observations, even though expressed in broad terms,  in the  general compass of the question before him" unless  the makes it clear that he intended his remarks to have  a wider ambit. It is not possible for judges always to express  their judgments  so as  to exclude  entirely the risk that  in some  subsequent case  their language  may  be misapplied and  any attempt at such perfection of expression can only lead to the opposite result of uncertainty and even obscurity as  regard the case in hand. It may be noted that, in this  case the  Presidential order  dated  3rd  November, 1962, which came up for consideration before the Court,, was a conditional  order, inasmuch as it operated to suspend the right of any person to move any court for enforcement of the rights conferred  by Articles  21 and  22, only  if  he  was deprived of  any such rights under the Defence of India Act, 1962 or  any rule  or order  made under  it. It  was in  the context  of  this  Presidential  order  that  the  aforesaid observations were made by this Court. It is obvious that, on the terms  of this  Presidential  order,  if  a  person  was deprived  of   his  personal   liberty  otherwise   than  in accordance with  the provisions of the Defence of India Act, 1962 or  any rule  or order made under it, his right to move the Court  for enforcement  of his right of personal liberty under Article  21 would  not be  barred by  the Presidential order. That  is why  it was  said in this case, that, if the detention is  illegal for  the  reason  that  the  mandatory provisions of the Defence of India Act,, 1962 or any rule or order made  thereunder have  been contravened  or  that  the detention has  been ordered mala fide, such a plea would not fall within the terms of the Presidential order and hence it would be  outside the  purview of Art. 359, clause (1). That is the  only way in which these observations can and must be understood. It  was pointed out by the House of Lords as far back as  1901 in Queen v. Leatham(l) "Every judgment must be read as  applicable  to  the  particular  facts  proved,  or assumed  to   be  proved,   since  the   generality  of  the

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expressions which  may be found there are not intended to be exposition of  the whole law, but are governed and qualified by the  particular facts in which such expressions are to be found." This  Court had  also occasion  to point  out in the State  of  Orissa  v.  Sudhansu  Sekhar  Misra(’)  that  the observations in  a judgment  must be "only in the context of the question  that arose  for decision."  It  would  not  be right, as  observed by  this Court in Madhav Rao v. Union of India (supra),  "to regard  a word,  a clause  or a sentence occurring in  a judgment  of this  Court, divorced  from its context, as  containing a  full exposition  on the  law on a question" particularly  "when the question did not even fall to be answered in that judgment". Here, in the present case, unlike the  Presidential order  dated  3rd  November,  1962, which was  a conditional order, the Presidential order dated 27th June,  1975 is, on the face of it. an unconditional one and as  such there  is a vital difference ill effect between the Presidential  order dated  3rd November,  1962  and  the present Presidential order. In fact, it appears that because of the  interpretation and  effect of the Presidential Order dated  3rd  November,  ]962  given  in  this  case  and  the subsequent cases  following it,  the President  deliberately and advisedly departed from the earlier precedent and      (1) [1901] A. C. 495.      (2) [1968] 2 S. C. R. 154. 457 made the  present Presidential  order an  unconditional one. These observations  made in  the context  of  a  conditional Presidential order cannot, therefore, be read as laying down that a  plea that an order of detention is not in accordance with the  provisions of  law or  is mala fide is outside the purview of Art. 359" clause (1) and would not be barred even by an  unconditional Presidential  order such  as the one we have in the present case.      This distinguishing  feature of  Makhan  Singh’s  case. (supra) was.  in fact  highlighted  and  emphasised  in  the subsequent decision  of this  Court in  A. Nambiar  v. Chief Secretary.(1).  There  Gajendragadkar,  C.J.,  stressed  the conditional nature  of  the  Presidential  order  dated  3rd November, 1962 and indicated that it was in view of the last clause  of   the  Presidential  Order,  that  the  aforesaid observations were made by this Court in Makhan Singh’s case. The learned  Chief Justice  explained the  position  in  the following words .           "In Makhan Singh Tarsikka v. The State of Punjab a      Special  Bench  of  this  Court  has  had  occasion  to      consider the  effect of  the Proclamation  of Emergency      issued by the President and the Presidential order with      which we  are concerned in the present writ petitions.-      this Court  took the precaution of pointing out that as      a  result  of  the  issue  of  the  1  Proclamation  of      Emergency and  the Presidential  order, a citizen would      not be  deprived of  his right  to move the appropriate      court for  a writ  of habeas  corpus on the ground that      his detention has been ordered mala fide. Similarly, it      was pointed  out that  if a  detenu contends  that  the      operative provisions  of the Defence of India ordinance      under which  he is  detained suffer  from the  vice  of      excessive delegation,  the  plea  thus  raised  by  the      detenu cannot,  at the  threshold, be said to be barred      by the Presidential order, because, in terms, it is not      a plea  which is  relateable to  the fundamental rights      specified in the said order.      Let us  refer to  two other  pleas which  may not  fall within the purview of the Presidential Order. If the detenu,

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who is  detained under an order passed under Rule 30(1) (b), contends that  the said  order has been passed by a delegate outside the  authority conferred  on him  by the appropriate Government under  s. 40  of the  Defence of India Act, or it has  been  exercised,  inconsistently  with  the  conditions prescribed in  that behalf.,  a preliminary  bar against the competence or  the detenu’s  petition cannot be raised under the Presidential  order, because  the  last  clause  of  the Presidential order  would not  cover such  a  petition,  and there is  no doubt that unless the case falls under the last clause of  the Presidential  order, the  bar created  by  it cannot  be   successfully  invoked   against   cl   decided. Therefore, our  conclusion is  that the  learned  Additional Solicitor-General is  not justified  in contending  that the present petitions  are incompetent  under Art. 32 because of the Presidential  Order. The  petitioners contend  that  the relevant Rule under which the      (1) [1966] 2 S. C. R. 106. 458      impugned orders  of  detention  have  been  passed,  is      invalid on  grounds other than those based on Arts. 14,      19, 21  and 22"  and if  that plea is well-founded, the      last clause  of the presidential Order is not satisfied      and the  bar created  by it  suspending  the  citizens’      fundamental rights  under Articles 14, 21 and 22 cannot      be pressed into service." These observations, and particularly the portions underlined by me,  clearly show-that  it was because of the conditional nature of  the Presidential  Order that  the view  was taken that if  a detenue  contents that the order of detention has been made mala fide or that it has been passed by a delegate outside the authority conferred on him under the Act or that it has  been exercised  inconsistently with  the  conditions prescribed in that behalf", that is, it is not in accordance with the  provisions of law, such a plea would not be barred at the  threshold by the Presidential order. The conditional nature of  the Presidential  order was also stressed by this Court  in   State  of  Maharashtra  v.  Prabhakar  Pandurang Sangzgiri(1) where  this Court,  speaking through Subba Rao, J., pointed  out that  in view  of the  last  cause  of  the Presidential  order,  "if  a  person  was  deprived  of  his personal liberty  nor under  the Act or a rule or order made thereunder, but  in contravention thereof, his right to move the said  courts", that  is the  High Court  and the Supreme Court "in that regard would not be suspended’.      lt was  then contended on behalf of the detenus that in any event  the right  of personal liberty is a natural right which inheres  in every one from the moment of his birth and this right  can always be enforced by the detenus under Art. 226 by  a writ  "for any other purpose" and the Presidential order does  not operate  as a  bar. When,  in answer to this contention the  Union of  India and  the  State  Governments relied on  High Holiness Kesavananda Bharati Sripadagalavaru v. State  of. Kerala,(2)  the detenus  urged that Kesavanand Bharati’s case  (supra) did not say that there is no natural right inhering  in a  person, but  all that it said was that natural rights  do not  stand in the way of amendment of the Constitution. Kesavanand Bharati’s case (supra) according to the  detenus,   did   not   negative   the   existence   and enforceability of natural rights. But this contention of the detenus is  clearly  belied  by  the  observation  from  the judgments of  at  last  seven  of  the  judges  who  decided Kesavanand Bharati’s  case (supra). Ray, C. J. said at pages 419 of  the Report: "Fundamental rights are conferred by the Constitution.  There   are  no   natural  rights  under  our

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Constitution." Palekar,  J., also  said at  page 594  of the Report: "The so called natural rights-have in course of time lost their  utility as  such in  the fast changing world and are recognised in modern political constitutions only to the extent that  organised society  is able to respect them." So also Khanna, J. said at page 703 of the Report: "- the later writers have  generally taken  the view  that natural rights have no  proper place  outside the constitution and the laws of the  State. It  is up to the State to incorporate natural rights, or such      (1) [1966] I S. C. R. 702.      (2) [1963] Supp. S. C. R. 1. 459 of them  as  are  deemed  essential,  and  subject  to  such limitations  as   are   considered   appropriate,   in   the constitution of  the laws  made by  it. But independently of the constitution  and the  laws of the State, natural rights can have  no legal sanction and cannot be enforced." Mathew, J., too,  spoke to  the same effect when he said at page 814 of the  Report: ’Although  called ’rights’, they are not per se enforceable  in courts  unless recognised by the positive law of  a State".  Beg, J.  also discounted  the  theory  of natural rights  at pages  881 and  882  of  the  Report  and Dwivedi, J.  Observed at  page 910  of the  Report  that  to regard fundamental  rights as  natural rights  overlooks the fact that  some of  These rights  did not  exist before  the Constitution and  "were begotten  by our  specific  national experience". Chandrachud, J., was equally emphatic in saying at pages  975 and 976 of the Report that "There is intrinsic evidence in  Part III  of the  Constitution to show that the theory.  Of   natural  rights  was  not  recognised  by  our constitution-makers-The natural theory stands, by and large, repudiated today-The  belief is now widely held that natural rights have  no other  than  political  value".  It  may  be pointed out that Subba Rao, J., also in l.C. GolakNath & Ors v. Slate of Punjab(1) at page 789 of the Report rejected the theory  of   natural  rights   independent  and  apart  from fundamental rights  in Part  III. He  said:  ’.  Fundamental rights are  the modern name for what have been traditionally known as  natural rights". There is, therefore, no scope for the  contention   that  even   if  the  enforcement  of  the Fundamental right  conferred by  Article 21  is suspended by the Presidential  order, the  detenu  can  still  enforce  a supposed natural  right of  personal liberty  in a  court of law.      I may  also refer  to one  other argument  advanced  on behalf of  the detenus that in any event the right not to be deprived of personal liberty except by authority of law is a statutory  right   which  can   be  enforced   despite   the Presidential order  suspending enforcement  of the  right of personal liberty  guaranteed under  Article 21.  I agree and there can  be no  doubt about it that if the positive law of the State  decrees that  no person  shall be deprived of his personal  liberty   except  according   to   the   procedure prescribed by  law, the enforcement of such  statutory right would not  be barred  by the  Presidential order.  But 1  am afraid, the  premise on  which this  argument is  founded is incorrect. There  is no  legislation in  which country which confers the  right of  personal liberty  by  providing  that there shall  be no  deprivation of  it except  in accordance with law.  On the contrary, section 18 of the Maintenance of Internal Security Act, 1971 enacts that no person in respect of whom  an order  of detention  is made  or purported to be made under  section 3  shall  have  any  right  to  personal liberty by  virtue of natural law or common law. if any. The

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Indian Panel  Code in section 342 undoubtedly makes it penal to wrongfully confine any person and the offence of wrongful confinement postulates  that no one shall be deprived of his personal liberty  except by  authority of  law. But  it  can hardly be said on that acount that section 342 of the Indian Penal Code  confers a  right of personal liberty. The utmost that can  be  said  is  that  this  section  proceeds  on  a recognition of the right of personal      (1) [1967] 2 S. C. R. 762. 460 liberty enacted  in Article  21 and  makes it  an offence to wrongfully confine a person in breach of the right conferred by that constitutional provision.      Then I  must refer  to  one  other  contention  of  the detenus and that is that the remedy under Article 226 can be invoked not  only for  the purpose  of  enforcement  of  the fundamental rights,  but also "for any other purpose". These words greatly enlarge the jurisdiction of the High Court and the High Court can issue a writ of habeas corpus if it finds that the  detention of  a  person  is  illegal.  It  is  not necessary for this purpose that the court should be moved by the detenu.  It is  sufficient if  it is moved by any person affected by  the order of detention. When it is so moved and it examines  the legality of the order of detention, it does not enforce the right of personal liberty of the detenu, but it merely  keeps the  executive within the bounds of law and enforces the  principle of  legality. The  remedy of  habeas corpus is  a remedy  in public  law and  hence it  cannot be excluded by  suspension of  enforcement of  the right  of an individual. This  contention of  the detenus does appear, at first sight,  to be quite attractive, but I am afraid, it is not  well  founded.  It  fails  to  take  into  account  the substance of  the matter.  When an  applicant moves the High Court for  a  writ  of  habeas  corpus,  he  challenges  the legality of  the order of detention on the ground that it is not in  accordance with  law. That challenge proceeds on the basis that  the executive  cannot deprive  a person  of  his personal liberty  except by authority of law and that is why the order  of detention is bad. But once it is held that the obligation of  the executive  not to deprive a person of his personal liberty  except in  accordance with  law is  to  be found only  in Article  21 and no where else, it must follow necessarily  that,   in  challenging  the  legality  of  the detention, what  the  applicant  claims  is  that  there  is infraction by the executive of the right of persona] liberty conferred under Article 21 and that immediately attracts the applicability of  the Presidential  order. If we look at the substance of  the matter and analyse what is it exactly that the High  Court is invited to do, it will be clear that what the applicant  wants the  High Court  to do  is  to  examine whether the executive has carried out the obligation imposed upon it  by Article  21 not  to  deprive  a  person  of  his persona]  liberty   except  according   to   the   procedure prescribed by  law and  if it  finds that  the executive has failed to  comply with  this obligation, then to strike down the order  of detention.  That  is  precisely  what  is  not permitted to  be done  by the  Presidential  order,  for  it plainly amounts  to enforcement  of the  right  of  personal liberty conferred  by  Article  21.  The  words  "any  other purpose"  cannot   be  availed   of  for   the  purpose   of circumventing the constitutional inhibition flowing from the Presidential order.      It is  necessary to  point out that Art. 359 clause (1) and the  Presidential order  issued under it do not have the effect of  making unlawful  actions of the executive lawful.

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There can  be no doubt that the executive is bound to act in accordance with  law and cannot that the command of law. The executive cannot  also act  to the  detriment  of  a  person without authority  of law  or except in accordance with law. If the  executive takes any action which is not supported by law or is 461 contrary  to  law,  its  action  would  be  unlawful..  This unlawful characteristic  of the action is not obliterated by the Presidential  order issued  under Art.  359 clause  (1). Article 359,  clause (1)  and the  Presidential Order issued under it  do not give any power to the executive to alter or suspend or  flout the  law nor  do they enlarge the power of the executive  so as  to permit  it to  go  beyond  what  is sanctioned by  law They merely suspend the right of a person to move any court for redress against the unlawful action of the executive,  if his  claim involves enforcement of any of the fundamental  rights specified in the Presidential order. This is  a position  akin in  some respects  to that  in the United States  when the  privilege of  the  writ  of  habeas corpus is suspended under Art. l, Placitium 9, clause (2) of the United States Constitution and in Great Britain when the Habeas Corpus  Suspension Act  is passed. It must inevitably follow from  this position  that as  soon as  the  emergency comes to  an end  and the  Presidential order  ceases lo  be operative, the  unlawful action  of  the  executive  becomes actionable and  the citizen  is entitled  to challenge it by moving a court of law.      It will  be clear from what is stated above that whilst a Presidential order issued under Article 359, clause (1) is in operation,  the rule  of law  is not  obliterated and  it continues to  operate in  all its  vigour. The  executive is bound to  observe and  obey the  law and it cannot ignore or disregard it.  If the executive commits a breach of the law, its action would be unlawful, but merely the remedy would be temporarily barred  where it  involves enforcement of any of the fundamental  rights specified in the Presidential order. This would  be obvious  if we  consider what  would  be  the position under  the criminal law. If the executive detains a person contrary to law or shoots him dead without justifying circumstances, it  would clearly  be an  offence of wrongful confinement in  one case and murder in the other, punishable under the  relevant provisions  of the  Indian  Penal  Code, unless the  case  falls  within  the  protective  mantle  of section 76  or 79 and the officer who is responsible for the offence would  be liable  to be  prosecuted, if  there is no procedural bar  built by  the  Code  of  Criminal  Procedure against the initiation of such prosecution. The Presidential order suspending the enforcement of Article 21 would not bar such a  prosecution and  the remedy  under the  Indian Penal Code would  be very  much available. The offence of wrongful confinement or  murder is an offence against the society and any one can set the criminal law in motion for punishment of the offender. When a person takes proceedings under the Code of Criminal  Procedure in  connection with  the  offence  of wrongful confinement or murder or launches a prosecution for such  offence,  he  cannot  be  said  to  be  enforcing  the fundamental right  of the  detenu or  the murdered man under Article  21   so  as   to  attract  the  inhibition  of  the Presidential order.      So also,  if a  positive legal  right is conferred on a person by legislation and he seeks to enforce it in a court, it would  not be  within the  inhibition of  a  Presidential order issued  under Article 359, clause(1). Take for example the class  of cases  of detention  where no  declaration has

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been made  under sub-sections  (2) and  (3) of  section 16A. This category  would cover  cases where  orders of detention have been passed 462 prior to June 25, 1975, because in such cases no declaration under subsections  (2) or (3) of section 16A is contemplated and it  would also  cover the rather exceptional cases where orders of  detention have  been made  after 25th  June, 1975 without a  declaration under  sub-section (2) or sub-section (3) of section 16A. Sections 8 to 12 would continue to apply in such cases and consequently the detaining authority would be under  an obligation  to refer  the case of the detenu to the Advisory  Board and  if the  Advisory Board reports that there  is  in  its  opinion  no  sufficient  cause  for  the detention of the detenu, the State Government would be bound to revoke  the detention order and release the detenu. ’That is the plain requirement of sub-section (2) of section. Now? suppose that  in such  a case  the State Government fails to revoke the  detention order and release the detenu in breach of its  statutory or  obligation under  sub-section  (2)  of section 12.  Can  the  detenu  not  enforce  this  statutory obligation by  filing a  petition for  writ of mandamus, The answer must  obviously be:  he can.  When he  files  such  a petition for  a writ  of mandamus, he would be enforcing his statutory right  under sub-section (2) of section 12 and the enforcement of such statutory right would not be barred by a Presidential order  specifying Article 21. T he Presidential order would have no operation where a detenu is relying upon a provision of law to enforce a legal right conferred on him and is  not complaining of absence of legal authority in the matter of deprivation of his personal liberty.      I may  also refer  by way  of another  illustration  to section 57  of the  Code of  Criminal Procedure  Code, 1973. This section provides that no police officer shall retain in custody a  person arrested  without  warrant  for  a  longer period  than   under  all   the  circumstances  of  case  is reasonable, and  such period  shall not, in the absence of a special order  of a  magistrate under section 167, exceed 24 hours exclusive  of the  time necessary for the journey from the place  of arrest  to the  magistrate’s court.  There  is clearly a legal injunction enacted by this section requiring a police officer not to detain an arrested person in custody for a  period longer  than  24  hours  without  obtaining  a special order  of a  magistrate and  to release  him on  the expiration of  such period  of 24  hours, if in the meantime such special  order is not obtained. If, in a given case, an arrested person is detained in custody by the police officer for a period longer than 24 hours without obtaining an order of a  magistrate, can he not apply to the magistrate that he should be  directed to  be released  by the  police  officer under section  57 ? Would such an application be barred by a Presidential order  specifying Art.  21? I  do not think so. When the arrested person makes such an application, he seeks to enforce  a statutory  obligation imposed  on  the  police officer and  a statutory  right created  in  his  favour  by section 57  and that  would not  be barred,  because what is suspended by  a Presidential order specifying Art. 21 is the right to  move the  court for enforcement of the fundamental right conferred  by that  Article and  not the right to move the court  for enforcement  of the  statutory  right  to  be released granted under section 57.      I may  take still  another example  to  illustrate  the point I  am making.  Take a case where an order of detention has been  made without a declaration under subsection (2) or sub-section (3) of section 16A).

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463 Sections 8  to 12  would admittedly apply in such a case and under s.  8, A  the detaining  authority would  be bound  to communicate to  the detenu the grounds on which the order of detention has  been made  and to  afford  him  the  earliest opportunity of  making a  representation to  the appropriate government. If,  in a  given case,  the detaining  authority declines to  furnish the  grounds of detention to the detenu or to  afford him an opportunity of making a representation, in violation  of the  statutory right conferred on him under s. 8,  can be  detenu not  enforce this  statutory right  by filing a  petition  for  a  writ  of  mandamus  against  the detaining authority  ? Would  it be  any answer  to such  an application that  the enforcement  of the  fundamental right conferred by  Art. 22,  clause (5) has been suspended by the Presidential order? The answer is plainly: no. There are two rights which  the detenu  has in this connection: one is the fundamental right  conferred by  Art. 22, clause (5) and the other is the statutory right conferred by art 22. Though the contention of  both these  rights is  the  same,  they  have distinct  and   independent  existence  and  merely  because enforcement of  one is  suspended, it does not mean that the other also  cannot be  enforced. The  ’theory of reflection’ which found  favour with  the Kerala  High Court  in Fathima Beebi v. M. K. Ravindranathan(l) is clearly erroneous. I the right conferred  under  s.  8  were  ;1  reflection  of  the fundamental right conferred by Article 22, clause (S) as the Kerala High  Court would have us believe, the removal of the fundamental right under Article 22, clause (S), which is the object reflected,  must necessarily result in the effacement of the right under section 8 which is said to constitute the reflection. But  even if  Article 22 clause (S) were deleted from the  Constitution, section  8 would still remain on the statute  book   until  repealed   by  the  legislature.  The Presidential order  would not, therefore, bar enforcement of the right conferred by section 8. To my  mind, it  is  clear  that  if  a  petition  or  other proceeding in  court seeks to enforce a positive legal right conferred by some legislation, it would not be barred by the Presidential order.  I may  also  point  out  that,  in  the present case,  if I  had  taken  the  view  that  there  is. independently and  apart from  Article 21,  a  distinct  and separate right not to be deprived of personal liberty except according to  law, I  would have held, without the slightest hesitation,   that   the   Presidential   order   suspending enforcement of the fundamental right conferred by Article 21 does not  have the  effect of suspending enforcement or this distinct and  separate legal right. But since I have come to the conclusion, for reasons already discussed, that there is no such  distinct and  separate right  of  personal  liberty apart from  and existing  side by  side with  Article 21, it must be held that when a detenu claims that his detention is not under  the Act  or in  accordance with  it, he  seeks to enforce the  fundamental right  conferred by  Article 21 and that is  barred by  the Presidential  order. Of course, this does not  mean that whenever a petition for a writ of habeas corpus  comes   before  the   Court,  it  must  be  rejected straightaway without  even looking  at the averments made in it. The  Court would have to consider whether the bar of the Presidential Order  is attracted  and for  that purpose, the Court would  have to  see whether  the order of detention is one made by an authority empowered to pass      (I) (1975) Cr. I. L. J. 1164. 464      such an order under the Act; if it is not, it would not

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be State  action and  the petition  would  not  be  one  for enforcement of  the right  conferred by  Article 21. On this view in  regard to  the interpretation of the constitutional provision, it  is unnecesasry  to go  into the  question  of construction and validity of section 18 of the Act.      It was  strongly urged upon us that if we take the view that the  Presidential order  bars the  right of a person to move a  court even  when his  detention is otherwise than in accordance with  law,  there  would  be  no  remedy  against illegal detention.  That would  encourage the  executive  to disregard the  law and  exercise arbitrary powers of arrest. The result  would be-so  ran the  argument-that the  citizen would be  at the  mercy of the executive: every one would be living in  a state of constant apprehension that he might at any time be arrested and detained: personal liberty would be at an  end and  our cherished  values destroyed.  Should  we accept a construction with such fearful consequences was the question posed  before us. An impassioned appeal was made to us to save personal liberty against illegal encroachments ’l by the executive. We were exhorted to listen to the voice of judicial conscience  as if judicial conscience were a blithe spirit like  Shelley’s Skylark free to sing and soar without any compulsions.  I do  not think  I can  allow myself to be deflected by  such considerations  from arriving  at what  I consider   to   be   the   correct   construction   of   the constitutional provision. The apprehensions and fears voiced on behalf of the detenus may not altogether be ruled out. It impossible  that   when  past   powers  are  vested  in  the executive, the  exercise of  which is  immune from  judicial scrutiny, they may sometimes be abuse d and innocent persons may be  consigned to temporary detention. But merely because power may  sometimes be  abused, it is no ground for denying the existence  of the  power. All  power  is  likely  to  be abused.  That  is  inseparable  from  the  nature  of  human institutions. The  wisdom of  man has  not yet  been able to conceive of a government with power sufficient to answer its legitimate end  and at  the same time incapable of mischief. In the  last analysis a great deal must depend on the wisdom and honesty,,  integrity’ and  character of  those  who  are incharge of  administration and the existence of enlightened and alert  public opinion.  It was  Lord Wright  who said in Liversidge v. Siglov Anderson (supra) that "the safeguard of British liberty  is in  the good  sense of the people and in the system  of  representative  and  responsible  government which has been evolved."      It is  true that,  if, in  a  situation  of  emergency, judicial scrutiny  into legality  of detention is held to be barred  by  a  Presidential  order  specifying  Article  21, illegalities might conceivably be committed by the executive in  exercise   of  the   power  of  detention  and  unlawful detentions might  be made  against which  there would  be no possibility of  redress. The  danger may not be dismissed as utterly imaginary,  but even  so, the fact remains that when there is crisis-situation arising out of an emergency, it is necessary to  best the Government with extra-ordinary powers in order  to enable it to overcome such crisis-situation and restore normal conditions. Even Harold Laski conceded in his article on "Civil Liberties in Great Britain in Wartime that "the  necessity-   of  concentrating   immense  power  in  a Government waging total war is 465 beyond discussion"  and  what  he  said  there  regarding  a Government A waging total war must apply equally in relation to a  Government engaged  in meeting  internal subversion or disturbance, for  the two  stand on the same footing, so far

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as our  Constitution is concerned. Now, when vast powers are conferred on  the executive  and judicial  scrutiny into the legality of  exercise of  such powers is excluded" it is not unlikely  that   illegalities  might  be  committed  by  the executive in  its efforts to deal with the crisis situation. Dicey, in  his "Introduction  to the  study of  Law  of  the Constitution" frankly  admits that  it  is  "almost  certain that, when  the suspension of the Habeas Corpus Act makes it possible for  the Government  to keep suspected persons in a prison for  a length of time without bringing them to trial, a smaller  or  greater  number  of  unlawful  acts  will  be committed, if  not be the members of Ministry themselves, it any rate  by their  agents." But  howsoever unfortunate this situation might  be, that cannot be helped. The Constitution permits judicial  scrutiny to  be  barred  during  times  of emergency, because it holds that when a crisis arises in the life of  the nation,  the  rights  of  individuals  must  be postponed to  considerations of  State and  national  safety must override any other considerations. I may add that there is nothing  very  unusual  in  this  situation  because?  as already pointed  out above,, such a situation is contemplate even in  countries like  the United  States of  America  and Great Britain  which are  regarded as bastions of democracy. But at  the same time it must be remembered by the executive that, because  judicial  scrutiny  for  the  time  being  is excluded, its responsibility in the exercise of the power of detention is  all the  greater. The  executive is  under  an added obligation to take care to see that it acts within the four corner  of the law and its actions are beyond reproach. It must  guard against misuse or abuse of power, for, though such misuse  or abuse  may yield  short-term gains,  it is a lesson of  history which  should  never  be  forgotten  that ultimately means have a habit of swallowing up ends.      Before I  leave this question, I may point out that, in taking the  view 1  have, T  am not  unaware  of  the  prime importance of  the rule  of law  which, since  the  dawn  of political  history,   I  both  in  India  of  Brahadaranyaka Uunishad  and  Greece  of  Aristotle,  has  tamed  arbitrary exercise of  power by  the government and constitutes one of the basic tenets of constitutionalism. I am not unmindful of the famous  words of  Lord Atkin  in his powerful dissent in Liversidge v.  Anderson(supra) that  "amid the clash of arms and much  more so  in a  situation of emergency arising from threat of internal subversion-"laws are not silent. They may be changed,  but they  speak the same language in war and in peace". I  am also  conscious-and if  I may once again quote the words  of that  great libertarian  Judge "Judges  are no respector of  persons and  stand between the subject and any attempted encroachments  on his  liberty by  the  executive, alert to  see that any coercive action is justified in law". But at  the same  time it  cant be  overlooked that,  in the ultimate analysis,  the protection  of persona]  liberty and the supremacy  of law  which sustains it must be governed by the constitution  itself. The  Constitution is the paramount and supreme  law of  the land  and if it says that even if a person is  detained otherwise  than in  accordance with  the law, he  shall not  be entitled  to  enforce  his  right  of personal liberty, whilst a Presidential order under   3 2-833SCI/76 466 Article 359,  clause (l) specifying Article 21 is in force I have to give effect to it. Sitting as l do, as a Judge under the constitution,  I cannot  ignore the  plain and  emphatic concerned of  the Constitution  or what I may consider to be necessary to  meet the  end of  justice. It is said that law

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has the  feminine capacity to tempt each devotee to find his own image  in her bosom. No One escapes entirely. Some yield badly, some  with sophistication.  Only a  few more  or less effectively resist.  I  have  always  leaned  in  favour  of upholding personal liberty, for, I believe, it is one of the most cherished  values of mankind. Without it life would not be worth living. It is one of the pillars of free democratic society. Men have readily laid down their lives at is altar, in order  to secure it, protect it and preserve it. But I do not think  it would  be right  for me  W allow  my  love  of personal liberty  to cloud  my vision  or to  persuade me to place on  the  relevant  provision  of  the  constitution  a construction which  its language  cannot reasonably  bear. I cannot assume  to myself  the role  of  Plato’s  Philosopher king’s in  order to  render what  I consider  ideal  justice between  the   citizen  and   the  State.   After  all"  the Constitution is the law of all laws and there alone judicial conscience must  find its  ultimate support  ,and its  final resting  place.  It  is  in  this  spirit  of  humility  and obedience  to   the  Constitution  and  driven  by  judicial compulsion, that  I have  come to  the conclusion  that  the Presidential   order    dated   27th    June,   1975    bars maintainability of  a writ  petition for habeas corpus there an order of detention is challenged on the ground that it is mala fide or not under the Act or not in compliance with it.      On the  view I have taken in regard to the answer to be given to  the first  question, it  would be  unnecessary  to consider the  second question, but since the second question has been  debated fully  and elaborate arguments have been l advanced before  us touching not only the interpretation but also the  validity of  sub-section (9) (a) of section 16A, I think it will be desirable if I pronounce my opinion on this question as well. But before I proceed to do sot, I may make it clear  once again  that though this question is framed in general terms and so framed it invites the Court to consider the area  of judicial  security in  a petition for a writ of habeas corpus,  it is  not really  necessary to  embark on a consideration of  this issue,  since it  was conceded by the learned Attorney  General, and  in my  opinion rightly, that the area  of judicial scrutiny remains the same as laid down in  the  decision  of  this  Court,  subject  only  to  such diminution or  curtailment as  may be  made  by  sub-section (9)(a) of  section 16A.  The  learned  Additional  Solicitor General , who argued this question on behalf of the Union of India, took  us through  various decisions of English courts on the  issue as  to what  is the nature of the jurisdiction which the  Courts on  the issue  as to what is the nature of the jurisdiction which the Court exercises in a petition for a writ  of habeas  corpus, and  what is  the manner in which such jurisdiction must be exercised. it is not necessary for the purpose because the practice in our country in regard to the exercise  of this  jurisdiction , as it has evolved over the years  as a  result of the decisions of this Court, is a little different from that prevailing in England. This court has never  insisted on  strict rules  of pleading  in  cases involving the  liberty of a person nor placed undue emphasis on the question as to on whom the burden of proof lies. Even a postcard written by a 467 detenu from  jail has been sufficient to activise this Court into examining  the legality  of detention.  This Court  has consistently shown  great anxiety  for personal  liberty and refused to throw out a petition merely on the ground that it does not  disclose a prima facie case invalidating The order of detention.  Whenever a  petition for  a  writ  of  habeas

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corpus  has  come  up  before  this  Court,  it  has  almost invariably  issued   a  rule   calling  upon  the  detaining authority to  justify the  detention.  This  Court  has  any occasions point  out that  when a  rule  is  issued,  it  is incumbent on  the detaining  authority to  satisfy the Court that the  detention  of  the  petitioner  is  legal  and  in conformity with  the mandatory  provisions of  the Act. Vide Naranjan Singh  v. State  of Madhya pradesh,(1) Saikh hanif, Gudma Majhi  & Kamal  Saha v.  State of  West Bengal (2) and Dulal Roy  v. The  District Magistrate, Burdwan ors.(3) . It has also  been insisted by this court that, in answer to the Rule, the  detaining authority  must place  all the relevant facts before  the Court  which would show that the detention is in  accordance with  the detention  is in  accordance the provisions of  the Act.  It would be no argument on the part of the  detaining authority to say that particular ground is not taken  in the petition . vide Nizamuddin v. The State of West Bengal  .(4) Once the Rule is issued, it is the bounden duty of the Court to satisfy itself that  all the safeguards provided by  law have  been  scruplously  observed  and  the citizen is  not deprived  of his  personal liberty otherwise than in  accordance with  law. Vide  Mohd. Alam  v. State of West Bengal  (5) and  Khudiram Das v. state of West Bengal & Ors.(6) This  practice marks  a slight  departure from  that obtaining in  England but  it has been adopted by this court in view of the peculiar socio-economic conditions prevailing in the  country. Where  large masses  of  people  are  poor, illiterate and ignorant and access to the courts is not easy on account  of lack  of financial resources it would be most unreasonable to  insist that  the petitioner  should set out clearly and  specifically the grounds on which he challenges the order  of detention  and make  our a prima facie case in support of  those grounds  before a rule can be issued on he petition  and   when  the  Rule  is  issued,  the  detaining authority should  not be  liable to  do any  thing more than just meet  the specific  grounds of challenge put forward by the petitioner  in the  petition. Of  course, I must make it clear that where an order of detention is challenged as mala fide, a  clear and  specific averment  to that  effect would have to  be made  in the petition and in the absence of such averment, the  court would  not entertain  the plea  of mala fide. The  petitioner would  have to  make out a prima facie case of  mala fide  before the  detaining authority  can  be called upon  to meet it. Whether a prima facie case has been made out  or not  would depend  on the  particular facts and circumstances of  each case,  but the  test would be whether the prima  facie case  made out is of such a nature that the Court feels that it requires  investigation. The Court would then investigate  and decide   the  question of mala fide on the basis  of the  material which may be placed before it by both parties. 468      What is the area of judicial scrutiny in a petition for a writ  of habeas corpus has been laid down by this Court is numerous decisions.  It is  not necessary  to refer  to  all these decisions, since there is one recent decision, namely, Khudiram Das  v. State  of West  Bengal  (supra)  where  the entire law  on the  subject has  been reviewed by a Bench of four judges!  of  this  Court.  There,  the  effect  of  the previous decisions  has been considered and the law has been summarised at  pages 843 to 845 of the Report in a judgement delivered by  me on  behalf of  the Court.  I have carefully listened to  the most elaborate arguments advanced before us in  this   case  and  even  after  giving  my  most  serious consideration to  them, I still adhere to all that I said in

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Khudiram Das’s  case (supra). I maintain that the subjective satisfaction of  the detaining  authority is  liable  to  be subjected to  judicial scrutiny on the grounds enumerated by me in  Khudiram Das’s  case  (supra)  and  the  decision  in Khudiram Das’s  case(supra) lays down the correct law on the subject. The  only question  is: how  far and to what extent sub-section (9)  (a) of section 16A has encroached upon this area of judicial scrutiny and whether it is a valid piece of legislation.      Now the first question that arises for consideration is as to  what is  the correct  interpretation of  section 16A, sub-section (9) (a). That sub-section reads as follows:-           "(9) Notwithstanding  anything  contained  in  any      other law or any rule having the force of law-                (a)  the   grounds  on  which  all  order  of      detention is made or purported to be made under section      3 against  any person  in respect of whom a declaration      is made  under sub-section  (2) or  sub-section (3) and      any in  formation or materials on which such grounds or      a declaration under sub-section (2) or a declaration or      confirmation  under   sub-section  (3)   or  the   non-      revocation under  sub-section (4)  of a declaration arc      based, shall  be treated  as confidential  and shall be      deemed to  refer to  matters of State and to be against      the public  inter est to disclose and save as otherwise      provided in  this  Act,  no  on  shall  communicate  or      disclose any  such ground,  information or  material or      any document  containing such  ground,  information  or      material;" the argument  urged on  behalf of  the detenus was that sub- section (9)  (a) of  section 16A  should be  read  down  and construed so  as not  to exclude the power of the High Court in the  exercise of  its jurisdiction   under Article 226 to call for the grounds, information and materials on which the order of  detention is  made and  the declaration under sub- section (2)  is based  with a  view to  satisfying itself as regards the legality of the detention. It was pointed out on behalf of  the detenus  that, unlike  section 54  of  Indian Income-tax Act,  l 922  and section  14  of  the  Preventive Detention Act, 1950, sub-section (9) (a) of section 16A does not include any reference to a court and it is clear that it is not  directed against the Court. Reliance was also placed on behalf  of the  detenus on the following statement of the law in  Wigmore on  Evidence (3rd  ed.) vol.  8 at page 801, Article 2379:  "Any statute  declaring in general terms that official records are confidential should 469 be liberally  construed to  have an  implied  exception  for disclosure when  A needed in court of justice, and reference was also made to the decision of the English Court in Lee v. Burrell(1) in support of the proposition that in a statutory provision, like  sub-section (9)  (a) of  section  16A,  the Court must  read an implied exception in favour of the Court and particularly  the High  Court exercising  constitutional Function under  Article 226.  It was also stressed on behalf of the  detenus that  if a  wider construction  is placed on sub-section (9)  (a) of section l 6A taking within its sweep the High  Court exercising  jurisdiction under  Article 226, that sub-section would be rendered void as offending Article 226 and  hence the  narrower construction  must be preferred which excludes  the High  Court from the purview of the sub- section. This  contention, attractive  though  it  may  seem because it  has the  merit of  saving judicial scrutiny from being rendered ineffectual and illusory, is not justified by the plain language of sub-section (9) (a) of section 16A and

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hence, despite  these weighty considerations which have been pointed out  on behalf  of the detenus, I find myself unable to accept it.       It  is true  that sub-section  (9) (a)  of section 16A does not specifically refer to any court. It does not say in so many  terms, as  did section  54 of the Indian lncome-tax Act, 1922,  that no  court  shall  require  any  officer  to produce before  it the grounds, information and materials on which the  order of  detention is  made or  the  declaration under sub-section  (2) or sub-section (3) is based, nor does it contain  any provision, like section 14 of the Preventive Detention Act,  1950 that no court shall allow any statement to be  made or  any evidence  to be  given of  such grounds, information and materials. But there is inherent evidence in the sub-section  itself to  show  that  it  is  intended  to prevent  disclosure   of  such   grounds,  information   and materials  before   a  court.  It  says  that  the  grounds, information and materials on which the order of detention is made or  the declaration under subsection (2) or sub-section (3) is  based "shall be treated as confidential and shall be deemed to refer to matters of State and to be against public interest to  disclose". There  is clearly  an echo  here  of section 123  of the  Indian Evidence  Act. That  section  is intended to  prevent disclosure  in a  court of "unpublished official records  relating to  and  affairs  of  State"  and likewise, sub-section  (9) (a)  of section  16A must also be held  to  be  designed  to  achieve  the  same  end,  namely prevent, inter alia, disclosure in a court. The words "shall be treated  as confidential"  and "  shall be  deemed to  be against  the   public  interest   to  disclose"   are   very significant. If  they are  to have  any meaning at all, they must be construed as prohibiting disclosure even to a Court. How can  the grounds,  information and materials referred to in this  sub-section remain  ’confidential if  they  can  be required to  be produced  before a  court? How  can they  be permitted to  be disclosed  to a  court when the legislature says in  so many  terms that  it would be against the public interest to  disclose them.  Even if  the  court  holds  its sittings in  camera, there would be a real danger Of leakage and  that  might,  in  a  given  case,  jeopardize  national security and  weaken the efforts towards meeting the crisis- situation arising ---------------------------   (1) 170 English Reports ]402. 470 out of  the emergency.  Vide observations  in the  speech of Lord Wright  at page 266 in Liversidge’s case (supra) . Sub- section (9)  (a) of  section 16A  cannot, therefore, be read down as  to imply  an exception in favour of disclosure to a court.      But then it was contended on behalf of the detenus that if, on  a proper  construction of  its language, sub-section (9) (a)  of sectio 16A precludes the High Court ill exercise of its jurisdiction under Article 226, from calling  for the production of  the grounds,  ill formation  and materials on which the  order of  detention is  made or  the  declaration under sub-section  (2) or sub-section (3) is based, it would impede the  exercise of its constitutional power by the High Court and  make i-t virtually ineffective and hence it would be void  as offending  Article 226. This contention requires serious  consideration.   Prima  facie   it  appears  to  be formidable, but  for  reasons  which.  I  shall  immediately proceed to state, I do not think it is well founded.      There  can   be  no   doubt  that   Article  226  is  a constitutional pro  vision and it empowers the High Court to

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issue a  writ  of  habeas  corpus  for  enforcement  of  the fundamental right  conferred by  Article 21 and also for any other purpose. The High Court has, therefore, constitutional power to  examine the  legality of  detention and  for  that purpose, to  inquire and  determine whether the detention is in accordance  with the  provisions of  law. Now,  obviously this being  a constitutional  power, it cannot be taken away or abridged  by a  legislative enactment.  If there  is  any legislative  provision   which  obstructs   of  retards  the exercise of  this constitutional  power, it  would be  void. There arc  several decisions  of this  Court which recognise and lay  down this proposition. It was said by this Court in one of  its early  decisions in  Hari Vishnu  Kamath v. Syed Ahemad Ishaque & ors.(1) that the jurisdiction under Article 226 having  been conferred  by the  Constitution, limitation cannot be  placed on it except by the Constitution itself So also n  Durga Shankar  Mehta  v.  Thakur  Raghuraj  singh  & ors.(2) this  Court, while considering the effect of section 105 of the Representation of the People Act, 1951 which gave finality to an order made by the Election Tribunal, observed that that section cannot "cut down and affect the overriding power which  this Court  can exercise in the matter of grant of special  leave under Article 136‘, and tile same rule was applied to Article 226 in Raj Krushna Bose v. Binoci Kanungo v. ors.  where the  Court held  that section 105 cannot take away or whittle do the power of the High Court under Article 226. The  same view  was taken  by this  court in In re: The Kerala Education  Bill, 1957(4)  where  S.  R.  Das  C.  J.. speaking on  behalf of the Court said in relation to Article 226 that  "No enactment  of a State legislature can, as long as  that   Article  stands.   take  away   or  abridge   the jurisdiction and  power conferred  on the High Court by that Article.  This   Court  in   Prem  Chand   Garg  v.   Excise commissioner U  P Allahabad  actually struck down Rule 12 of order- XXXV of the Supreme Court Rules which required the    (1) [1955] 1 S. R. 1104.    (2) [1955] 1 S. C. R. 267.    (3) [1954l S. C. R. 913.    (4) [1959] S. C. R. 995    (5) [1963] supp. 1 S. C. R 885. 471 petitioner in  a writ  petition under  Article 32 to furnish security for  A the  cost of  the respondent,  on the ground that it  retarted or obstructed the assertion or vindication of the  fundamental right  guaranteed under  Article  32  by imposing a  pecuniary obligation  on,  the  petitioner.  The principle of  this decision  must equally  apply in  a  case there the  legislative provision  impedes  or  obstruct  the exercise of the constitutional power of the High Court under Article 226. It is, therefore, clear that if it can be shown that sub-section (9) (a) of section 16A abridges or whittles down the  constitutional  power  of  the  High  Court  under Article 226  or obstructs  or retards its exercise, it would be valid as being in conflict with Article 226.      Now, it is settled law that when a petition for writ of habeas corpus  filed and a Rule is issued, it is the bounden duty of  the Court to satisfy itself that all the safeguards provided by  law have  been scrupulously  observed  and  the liberty of the detenu has not been taken away otherwise than in accordance  with law,  Vide Khudiram Das v. State of West Bengal (supra).  The Court  may  also  for  the  purpose  of satisfying itself as regards the legality of detention, call for the  record of  the case  relating to  the detention and look into  it. That  is what  the Court did in Biren Dutta & ors v.  Chief Com  missioner of  Tripura & Anr.(l) There, an

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interim order  was made  by this  Court "directing  that the Chief  Secretary   to  the   Tripura  Administration   shall forthwith transmit  to  this  Court  the  original  file  in respect of  the detenus concerned" since the Court wanted to satisfy itself  that the  Minister or  the Secretary  or the Administrator had  reviewed the  cases of  the  detenus  and arrived  at  a  decision  that  their  detention  should  be continued. So  also in  M. M.  Damnoo v. J & K State(2) this Court required  the State  Government to  produce  the  file confining the  grounds of  detention so that the Court could satisfy itself  That "the  grounds on  which the  detenu has been detained  have relevance to the security of the State". It would,  therefore, be seen that if there is a legislative provision  which   prohibits  disclosure   of  the  grounds, information and materials on which the order of detention is based and prevents the Court from calling for the production of  such   grounds,  information  and  materials,  it  would obstruct and retard the exercise of the constitutional power of the  High Court  under Article  226 and  would be void as offending that Article.      This was  the basis  on which  section 14  of  the  The Preventive detention Act, 1950 was struck down by this court in A  K Gopalan’s  case (supra). That section prohibited the disclosure of  the grounds  of detention communicated to the person detained  and the  representation made by him against the order  of detention  and barred  the court from allowing such  disclosure  to  be  made  except  for  purposes  of  a prosecution for  such disclosure. It was held by this Court- in fact  by all the judges who participated in the decision- that this  section was  void as  it contravene(l  inter alia Article 32.  Kanta, C. J. Observed at page 130 of the Report in a  passage of which certain portions have been underlined by me for emphasis: -----------------------    (1) [1964] 8 S, C. R. 295. i    (2) [1972 2 S. C. R. 1014. 472      "By that  section the  Court is  prevented (except) for the purpose  of punishment  for such  disclosure) from being informed, either  by a  statement or by leading evidence, of the substance of the grounds conveyed to the detained person under section  7 on  which the  order was  made, or  of  any representation made  by him  against  such  order.  It  also prevents the  Court from  calling upon any public officer to disclose  the  substance  of  those  grounds  or  from  tile production of  the proceedings  or report  of  the  advisory board which  may be  declared confidential. It is clear than if this  provision is permitted to stand, the Court can have nominate rial before it to determine whether the grounds are sufficient or  not. I  do not  mean whether  the grounds are sufficient  or   not.  It   even  prevents  the  Court  from ascertaining whether  the alleged  grounds of detention have anything to do with the circumstances or class or classes of cases mentioned in section 12(l)(a)." Patanjali Sastri,  J.,also observed  to the  same effect  at page 217 of the Report:           "If the  grounds are  too vague  to enable  him to      take any such representation, or if they are altogether      irrelevant to  the object of his detention, or are such      as to  show that his detention is not bona fide, he has      the further  right of moving this Court and this remedy      is also  guaranteed to  his  under  article  32.  These      rights and  remedies, the petitioner submits, cannot be      effectively exercised,  if he  is prevented  on pain of      prosecution, from  disclosing the grounds to the Court.

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    There is  great force  in this contention- The argument      (of  the   Attorney  General)  overlooks  that  it  was      recognised in  the decision  referred to  above that it      would be  open to  the Court  to examine the grounds of      detention in order to see whether they were relevant to      the object  which the legislature had in view, such as,      for instance,  the prevention  of acts  prejudicial  to      public safety and tranquillity, or were such as to show      that the detention was not bona fide. An examination of      the grounds  for these  purposes is  made impossible by      section 14,  and the  protection  afforded  by  article      22(5) and  article 32  is thereby rendered nugatory. It      follows that  section 14  contravents the provisions of      article 22 (S) and article 32 in so far is it prohibits      the person  detained from  disclosing to  the Court the      grounds of  his detention  communicated to  him by  the      detaining authority or . the representation made by him      against the  order of detention, and prevents the Court      from examining  them for  the purpose aforesaid. and to      that extent  it must be held under article 13 (2) to be      void." (emphasis supplied). And so  did the  other learned Judges. It is clear from what they  said  that  inasmuch  as  section  14  prohibited  the disclosure of  the grounds  of detention  and prevented  the Court from looking at 473      Them for  the purpose of deciding whether the detention is legal, it A was violative of Article 32 which conferred a fundamental right  on  a  detenu  to  move  this  Court  for impugning the legality of his detention.      The same view was taken by a Constitution Bench of this Court in M. M. Damnoo v. J. & K. State (supra). In fact, the observations of Kania, C. J. in A. K. Gopalan’s case (supra) which I  have reproduced above, were quoted with approval in this decision.  The petitioner  in this  case challenged the legality of his detention by the State of Jammu & Kashmir on several grounds.  One of the grounds was that the proviso to section 8  of the  Jammu &  Kashmir Preventive Detention Act was  void   as  it   conflicted  with  section  103  of  the Constitution of Jammu & Kashmir. Section 103 was in the same term as Article 226 and it conferred power on the High Court of Jammu  & Kashmir  to issue  after alia  a writ  of habeas corpus Section  8 of  the Preventive  Detention Act required the detaining  authority to  communicate to  the detenu  the grounds on  which the  order of  detention was made, but the proviso to  that section  dispensed with  the requirement in case of  "any person  detained with a view to preventing him from acting  in any  manner pre-judicial  to the security of the State if the authority making the order-directs that the person detained may be informed that it would be against the public interest  to communicate  to him the grounds on which his detention has been made". The argument of the petitioner was  that  the  proviso  to  section  8  of  the  Preventive Detention  Act  was  violative  of  section  103,  since  it debarred the  High Court and this Court from calling for the grounds of  detention and  thus made it virtually impossible for the High Court and this Court to examine the legality of the detention.  This Court agreed that there would have been some force  in the contention of the petitioner, if the High Court and  this Court  were prevented  from calling upon the State Government to produce the grounds of detention, but it pointed out  that the  proviso to  section 8  was not  ultra vires "because  the proviso  and the Act do not bar the High Court and  this Court  from looking into the validity of the detention". This  Court, after referring to the observations

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made by  Kania, C.J.  in A.  K. Gopalan’s  case  (supra)  in regard to  section 14  of the Preventive Detention Act, 1950 said:           "But fortunately  there is no similar provision in      this Act:  and it leaves the High Court and the Supreme      Court free to exercise the jurisdiction by calling upon      the State in appropriate cases to produce before it the      grounds of  detention and  other material  in order  to      satisfy itself  that the  detenu was  being detained in      accordance with  law. If  it were not so, we would have      difficulty in sustaining the proviso." It will,  therefore, be seen that prima facie this Court was of the  view that  if the  proviso to section 8 had debarred the High  Court and this Court from requiring the grounds of detention to  be produced  before them,  it would  have been difficult to sustain that proviso.      The  learned  Additional  Solicitor  General,  however, sought to  distinguish’ these  two decisions  and  contended that sub-section (9) (a) 474 of section  16A merely  enacts a  rule of  evidence  and  it cannot,  therefore,  be  said  to  obstruct  or  retard  the exercise of the constitutional power of the High Court under Article 226  so as to be in conflict with that Article. Now, there can be no doubt, although at one time in the course of his arguments  Mr. Shanti Bhushan contended to the contrary, that a  rule of  evidence  can  always  be  enacted  by  the legislature for  the purpose  of regulating  the proceedings before the  High Court under Article 226. A rule of evidence merely determines  what shall  be regarded  as relevant  and admissible material for the purpose of enabling the Court to come to  a decision  in the exercise of its jurisdiction and it  does   not  in  any  way  detract  from  or  affect  the jurisdiction  of   the  Court   and  it   cannot,   in   the circumstances, he  violative of  Article 226.  But in  order that it  should not  fall foul  of Article 226, it must be a genuine rule of evidence. If in the guise of enacting a rule of  evidence,   the  legislature  in  effect  and  substance disables  and   impedes  the  High  Court  from  effectively exercising its  constitutional power under Article 226, such an enactment  would be  void. It will be colourable exercise of legislative power. The legislature cannot be permitted to violate a  constitutional provision by employing an indirect method If  a  legislative  provision,  though  in  form  and outward appearance  a rule  of evidence, is in substance and reality something  different, obstructing  or  impeding  the exercise of  the .  jurisdiction of  the  High  Court  under Article 226,  the form in which the legislative provision is clothed  would  not  save  it  from  condemnation.  Let  us, therefore, examine  whether sub-section  (9) (a)  of section 16A enacts  a genuine rule of evidence or it is a colourable piece of  legislation in  the garb of a rule of evidence. If it is  the former it would be valid; but if it is latter, it would be  an indirect and covert infringement of Article 226 and hence void.      Now, it  is well settled that in order to determine the true character  of a  legislative provision,  we  must  have regard to  the substance  of the provision and not its form. We must  examine the  effect of  the provision  and  not  be misled by  the method  and manner adopted or the phraseology employed. Sub-section  (9) (a) of section 16A is in form and outward appearance  a rule  of evidence  which says that the grounds. information  and materials  on which  the order  of detention is  made or  the declaration under sub-section (2) or sub-section (3) is based shall be treated as confidential

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and shall  be deemed  to refer  to matter  of State  and  be against the  public interest  to disclose.  But in substance and effect,  is it a genuine rule of evidence ? The argument on behalf  of the  detenus was that it is only a legislative device  adopted  by  the  legislature  for  the  purpose  of excluding the  grounds, information  and materials  from the scrutiny of  the  Court  and  thereby  making  it  virtually impossible for  High Court  to examine  the legality  of the detention and  grant relief  to the  detenu. If  the veil is removed, contended the detenus, the position is no different from that  obtaining in  A. K.  Gopalan’s case (supra) where section 14  of the Preventive Detention Act, 1950 was struck down as constituting a direct assault on Article 226. It was pointed out  that, in  every case of detention, the Grounds, information and  materials would  not necessarily  refer to, matters of  State and  be against  the  public  interest  to disclose. Since, even order 475 of detention  purported to  be  made  under  section  3  are brought within  the purview of sub-section (9)(a) of section 16A, the grounds, information and materials in cases of such detention  may  be  wholly  unrelated  to  the  objects  and purposes set  out in section 3 and in that event, they would mostly have  nothing to  do with matters of State and it may not be  possible to  say that  their disclosure would injure public interest.  But even so, sub-section (9)(a) of section 16A surrounds   such grounds, information and materials with the veil of secrecy and, the use the words of Mahajan, J. in A. K. gopalan’s case (supra), places "an iron curtain around them". This  sub-section, according  to detenus, compels the Court to  shut its  eyes to  reality and  presume by a legal fiction that  in every  case, whatever  be the actuality and many cases  the  actuality  may  be  otherwise-the  grounds, information and  materials  shall  be  deemed  to  refer  to matters of  State and  shall be against that public interest to disclose.  This contention  of the detenus is undoubtedly very plausible  and   it caused  anxiety to  me t  on deeper consideration, I think it cannot be sustained.      It is  significant to  note that  sub-section (9)(a) of section 16A  is a  provision enacted  to meet  the emergency declared under  the Proclamations  dated 3rd  December, 1971 and 25th  June, 1975. Vide subjection (1) of section 16A. It comes into  operation only  when there  a  declaration  made under sub-section  (2) or sub-section (3) that the detention of the  person concerned  is necessary for dealing effective with  the   emergency.  The   condition  precedent   to  the applicability of  sub-section is  that  there  should  be  a declaration under  sub-section (2)  or  sub-section  (3)  in respect of  the person  detained. It  may also be noted that though the  words or  purported to  be made were added after the words "an order of detention is made" in the sub-section by the  Maintenance of  Internal Security  (Amendment)  Act, 1976, no such or similar words were added in relation to the declaration in  under sub-section  (2) or  sub-section  (3). Sub-section (9)  (a) of  section 16A,  therefore, assumes  a valid declaration  under subsection  (2) or  sub-section (3) and it  is only  when such  a declaration  i been made, that sub-section (9)  (a) of section 16A applies or n other words it is only in cases where a person is detained in order deal effectively with  the emergency  that the  disclosure of the grounds ,  information and  materials is  prohibited by sub- section (9) (a) of section 16A. I have already pointed out how emergency can create a crisis situation  imperilling   the  existence   of  constitutional democracy and jeopardizing the functioning of the social and

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political machine.  It   is, therefore, reasonable to assume that where a person is detained is order to deal effectively with the  emergency, the  grounds, information and materials on which  the order  of detention is made or the declaration under sub-section (2) or sub-section (3) is based would. and large, belong  to a  class of documents referring to matters of State  which it  would  be  against  public  interest  to disclose. What  was observed  by two  of the  Law  Lords  in Liversidge’s case  (supra) would  be applicable  in  such  a case. Viscount  Maugham said at page 221 of the Report. "-it is obvious that in many cases he will be acting 476 on information  of the  most confidential  character,  which could  not   be  communicated  to  the  person  detained  or disclosed in  court without the greatest risk of prejudicing the future  efforts of  the Secretary  of State  in this and like matters  for the  defence of the realm-It is sufficient to say  that there  must be a large number of cases in which the information on which the Secretary of State is likely to act will  be of a very confidential nature," and Lord Wright also observed  to the same effect at page 266 of the Report: "In these  cases full legal evidence or proof is impossible, even if  the Secretary  does   not claim  that disclosure is against the  public interest, a claim which must necessarily be made in practically every case, and a claim which a judge necessarily has  to admit."  In view  of the  fact that  the detention is  made in  order to  deal effectively  with  the emergency, the  grounds, information  and materials would in most cases be confidential and if a claim of‘ privilege were made under  section 123 of the Indian Evidence act, it would almost  invariably   be  held  justified.  The  Legislature, therefore, taking  into account  the privileged character of the grounds,  information and materials in the generality of cases, enacted  sub-section (9)  (a) of  section 16A  laying down a  rule that  the grounds,  information  and  materials shall be  deemed to refer to matters of State which it would be injurious  to public  interest to  disclose,  instead  of leaving it  to the  discretion of the detaining authority to make a  claim of  privilege in  each individual case and the court to  decide it. The rule enacted in sub-section (9) (a) of section  16A bears  close analogy to a rule of conclusive presumption and in the circumstances, it must be regarded as a genuine  rule of evidence. I may make it clear that if the grounds, information  and materials  were not, by and large, of such a character  as  to fall  within the  class  of  documents  relating  to matters of  State which  it would  be  injurious  to  public interest to  disclose, I  would have  found it impossible to sustain this  statutory  provision  as  a  genuine  rule  of evidence. If  the grounds, information and materials have no relation to  matters of  State or they cannot possibly be of such a  character that  their disclosure would injure public interest, tha  Legislature cannot,  by  merely  employing  a legal fiction,  deem them to refer to matters of State which it would  be against public interest to disclose and thereby exclude them  from the  judicial ken.  That would  not be  a genuine  rule   of  evidence:   it  would  be  a  colourable legislative device  -a fraudulent  exercise of  power. There can  be  no  blanket  ban  on  disclosure  of  the  grounds, information and  materials to  the High Court or this Court, irrespective of  their true  character. That  was the reason why section  14 of  the Preventive  Detention Act,  1950 was struck down  by this  Court in  A. R. Gopalan’s case (supra) and this  Court said  in M. M. Damnoo’s case (supra) that if the proviso  to section  8 had  debarred the  High Court and

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this Court  from calling  for the  grounds of  detention and looking into  them, it  would have been difficult to sustain that proviso.  But here, on account of the declaration under sub-section (2)  or sub-section (3), which, as I said above, must  be  a  valid  declaration  in  order  to  attract  the applicability of  sub-section (9)  (a) of  section 16A,  the grounds, information and materials in almost all cases would be of  a confidential  character falling within the class of documents privileged  under section  123 and  hence the rule enacted  in   the  sub-section  genuinely  partakes  of  the character 477 of a  rule of  evidence. It  may be  pointed out that if the declaration A  under sub-section  (2) or  sub-section (3) is invalid sub-section  (9) (a)  of section  16A  will  not  be attracted and  the grounds,  information  and  materials  on which the order of detention is made would not be privileged under that  sub-section. I  am, therefore,  of the view that sub-section (9)  (a) of section 16A enacts a genuine rule of evidence  an   it  does  not  detract  from  or  affect  the jurisdiction of  the High  Court under Article 226 and hence it cannot be successfully assailed as invalid.      I accordingly  answer the first question by saying that the  Presidential   under   dated   June   27,   1975   bars maintainability of  a petition  for a  writ of habeas corpus where an order of detention is challenged on the ground that it is  vitiated by Mala fides, legal or factual, or is based on extraneous  considerations or  is not under the Act or is not in  compliance with it. So far as the second question is concerned, I  do not  think there is any warrant for reading down sub-section  (9) (a)  of section  16A so as to imply an exception in  favour of disclosure to the Court, and, on the interpretation placed  by me  on that provision, I hold that it does not constitute an encroachment on the constitutional jurisdiction of  the High  Court under  Article 226  and  is accordingly not  void. In  the circumstances,  I  allow  the appeals and  set aside  the judgments  of  the  High  Courts impugned in the appeals.                            ORDER      By majority-      In view of the Presidential order dated 27 June 1975 no person has  any locus standi to move any writ petition under Article 226  before a  High Court  for habeas  corpus or any other writ  or order  or direction to challenge the legality of an,  order of  detention on  the ground that the order is not under  or in compliance with the Act or is illegal or is vitiated by  malafides factual  or  legal  or  is  based  on extraneous consideration.      2.  Section  16A(9)  of  the  Maintenance  of  Internal Security Act is constitutionally valid;      3. The  appeals are  accepted. The  judgments  are  set aside;      4. The  petitions before  the High Courts are now to be disposed of  in accordance  with the  law laid down in these appeals. S.R. 478