s Nos 109 to 114 117 118 120 121 128 to 133 142 143 186 190 and 191 of 1967
Petitions under article 32 of the Constitution of India for the enforcement of the fundamental rights
MK Ramamurthi for the petitioners in W Ps
109 142 and 143 of 1967
section Shaukat Hussain for the petitioners in W Ps
Nos 110114 and 118 of 1967
Janardan Sharma for the petitioners in W Ps
Nos 117 120 and 121 of 1967
RC Prasad for the petitioners in W Ps
128 133 of 1967 MK Ramamurthi and Vineet Kumar for the petitioners in W Ps
Nos 186 190 and 191 of 1967
CK Daphtary Attorney General RH Dhebar and SP Nayar for the respondent in W Ps
109 142 and 143 of 1967
GR Rajagopal RH Dhebar and section P Nayar for the respondent in WP No 110 of 1967
R Gopalakrishnan and section P Nayar for the respondent in W Ps
111 to 114 117 118 120 121
128 to 133 186 190 and 191 of 1967
The Judgment of WANCHOO CJ SHAH BACHAWAT MITTER and HEGDE JJ was delivered by WANCHOO CJ HIDAYATULLAH J delivered a separate Opinion
Wanchoo CJ
These twenty one petitions under article 32 of the Constitution for a writ of habeas corpus raise common questions of law and will be dealt with together
It is enough to set out the facts in one of the petitions No 142 of 1967 for the facts in other petitions are almost similar
The petitioner was arrested on November 11 1966 and detained under an order passed under r 301b of the Defence of India Rules 1962 hereinafter referred to as the Rules
It appears that though the order was reviewed after the period of six months no opportunity was given to the petitioner to represent his case before the reviewing authority
In consequence the detention of the petitioner be came illegal after the first period of six months in view of the judgment of this Court in PL Lakhanpal vs Union of India1
The State Government realising this defect cancelled the order dated November 11 1966 on August 3 196 7 and on the same day a fresh order of detention was passed and it is this order which 1  L 1O Sup CI67 17 230 is being challenged before us
It is not in dispute that in view of the judgment of this Court in Jadev Singh vs State of Jammu and Kashmir1 it was open to the State Government in view of the formal defect in making the review to pass a fresh order of detention after revoking the earlier order which in any case became ineffective after the first six months if the circumstances which led to the detention originally still continued
The main attack of the petitioners is on the order of the President passed on November 3 1962 as amended on November 11 1962 under article 3591 of the Constitution
By this order the President declared that the right to move any court for the enforcement of the fundamental rights conferred by articles 14 21 and 22 of the Constitution would remain suspended for the period during which the Proclamation of Emergency issued under article 3521 was in force if any person was deprived of such right under the Defence of India Ordinance No 4 of 1962 or any rule or order made thereunder
The argument in support is put this way
The President is an authority within the meaning of article 12 and therefore is comprised within the definition of the word State and the order passed under article 359 is a law within the meaning of article 132 of the Constitution
Consequently an order passed by the President under article 359 is liable to be tested on the anvil of the fundamental rights enshrined in Part Ill of the Constitution Secondly it is urged that an order passed under article 359 is made in the context of the Emergency and therefore enforcement of only such fundamental rights can be suspended which have nexus with the reasons which led to the Proclamation of Emergency
In consequence the President can only suspend the enforcement of fundamental rights under article 22 and article 31 2 under an order passed under article 359 and no others
Thirdly it is urged that even if the President can suspend the enforcement of any fundamental right the order passed can still be tested under the very fundamental right enforcement of which has been suspended
Fourthly it is urged that an order passed under article 359 can in any case be challenged under article 14 and if so the order passed in the present case is violative of article 14 because some persons can be detained under the Defence of India Act 51 of 1962 hereinafter referred to as the Act and the Rules while others can be detained under the Preventive Detention Act
As the Act and the Rules give more drastic powers for detention as compared to the powers conferred by the Preventive Detention Act there is discrimination for there is no indication as to when detention should be made under the Act and the Rules and when under the prevention law and the matter is left to the arbitrary discretion of the executive
Fifthly it is urged that in view of the language of the order under article 359 there should have been an  231 express provision in the Act and the Rules to the effect that enforcement of fundamental rights under articles 14 21 and 22 was suspended and in the absence of such an express provision the Presidential order under article 359 cannot stand in the way of the detention order being tested under Part III of the Constitution
Sixthly it is urged that article 22 5  provides that grounds of detention should be furnished to a detenu and the order of the President did not do away with the necessity of furnishing the grounds
Besides these main contentions three subsidiary contentions have also been raised in one petition or another and they are 1 that the fresh order had not been communicated to the detenues and was therefore of no avail ii that the order was not in the form as required by article 166 of the Constitution and it is therefore for the State Government to prove that it was passed by the authority which had the power to do so and iii that the fresh order was mala fide
The petitions have been opposed on behalf of the State Government
It is unnecessary to set out in detail the contentions in reply to the main points raised on behalf of the petitioners
It is enough to say that the contention on behalf of the State is that once the President has passed an order under article 359 suspending the enforcement of any fundamental right it is not open to rely on that fundamental right for any purpose so long as the order under article 359 stands and such an order cannot be tested in any manner by the very fundamental right the enforcement of which it has suspended
Further as to the subsidiary points the State contends that the fresh order of detention was communicated to each detenu and that the order was in the form required by the Constitution of Jammu and Kashmir and that article 166 has no application to the State of Jammu and Kashmir
It was finally denied that the order was mala fide in any of the cases
Part XVIII deals with Emergency Provisions and begins with article 352 which provides for making a declaration 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 if the President is so satisfied
articles 353 and 354 provide for the effect of the Proclamation of Emergency but it is unnecessary to refer to them for present purposes
Article 358 lays down that during the period that a Proclamation of Emergency is in operation Article 19 shall remain suspended Article 359 with which we are particularly concerned lays down that 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 L10Sup
C167 18 232 suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order
 The order made under article 359 may extend to whole or any part of the territory of India and has to be laid as soon as may be after it is made before each House of Parliament
It will be seen from the terms or article 359 that it gives categorical powers to the President during the period when a Proclamation of Emergency is in operation to suspend the enforcement of any of the fundamental rights conferred by Part III
It is for the President to decide the enforcement of which of the fundamental rights should be suspended during the operation of the Proclamation of Emergency
There is nothing in article 359 which in any way limits the power of the President to suspend
the enforcement of any of the fundamental rights conferred by Part IIIIt is to our mind quite clear that the President has the power to suspend the enforcement of
any of the fundamental rights conferred by Part III and there is nothing thereunder which makes any distinction between one fundamental right or another
As article 359 stands it seems to us it clearly envisages that once a Proclamation of Emergency has been issued the security of India or any part of the territory thereof may require that the President should suspend the enforcement of any of the fundamental rights conferred by Part III
There is in our opinion no scope for inquiry into the question whether the fundamental right the enforcement of which the President has suspended under article 359 has anything to do with the security of India which is threatened whether by war or external aggression or internal disturbance for article 359 posits that it may be necessary for the President to suspend any of the fundamental rights in Part HI for the sake of the security of India
There is thus a basic assumption in article 359 that it may be necessary for the President to suspend the enforcement of any of the fundamental rights conferred by Part III in the interest of the security of India
If he considers that necessary it is unnecessary in the face of that basic assumption to inquire whether enforcement of a particular fundamental right suspended by the President has anything to do with the security of India for that is implicit in article 359
It follows therefore that it is open to the President to suspend the enforcement of any of the fundamental rights conferred by Part III by an order under article 359 and this Article shows that wherever such suspension is made it is in the interest of the security of India and no further proof of it is necessary
This brings us to the main ground  raised on behalf of the petitioner that an order under article 359 is a law made by the State within the meaning of article 132 and has therefore to be 233 tested under Part III of the Constitution
We may assume for present purposes that the President is comprised within the word State in article 12
We may also assume that the order made by the President under article 359 is a law in its widest sense
The question however is whether such an order can be considered to be a law for the purpose of article 132 and tested thereunder
Article 132 and article 359 being parts of the same Constitution stand on an equal footing and the two provisions have to be read harmoniously in order that the intention behind article 359 is carried out and it is not destroyed altogether by article 132
It follows that though an order under article 359 may be assumed to be law in its widest sense it cannot be law within the meaning of article 132 for if that were so article 359 would be made nugatory
The Constitution through article 359 says that the President may suspend the enforcement of any of the fundamental rights in Part III where a Proclamation of Emergency is in force and that means that during the period of Emergency the fundamental rights enforcement of which is suspended cannot be enforced
If the order is a law within the meaning of article 132 the result would be that though the order says that the enforcement of a particular fundamental right is suspended during the period of Emergency the order can still be tested with the aid of article 132 on the anvil of the same fundamental right the enforcement of which it suspends
That would in our opinion result in making article 359 completely nugatory for then a declaration made there under that the enforcement of certain fundamental rights is suspended during the period of Emergency would have no meaning whatsoever  Therefore applying the principle of harmonious construction we are of opinion that an order passed under article 359
cannot be law for the purpose of article 132 assuming it to be law in its widest sense
It follows therefore that an order under article 359 derives its force from article 359 itself and takes effect in accordance with its tenor and cannot be affected by article 13 2 and cannot be tested under any of the provisions of Part III of the Constitution which it suspends
Reliance in this connection is placed on the judgment of this Court in Ghulam Sarwar vs Union of India1 where the majority made a distinction between the President s order itself under article 359 and the effect of that order
In that case it was observed that there is a clear distinction between deprivation of fundamental rights by force of a constitutional provision itself and such deprivation by an order made by the President in exercise of a power conferred on him under a constitutional provision
 It was further observed
that Article 3591 does not operate by its own force
The President has to make an order declaring that the right to move a court in respect of a fundamental right 1  234 or rights in Part III is suspended
He can only make an order which is a valid one
 It was further observed that an order making an unjustified discrimination in suspending the right to move a court under article 14 would be void at its inception and would be a still born order
We must say with greatest respect that it is rather difficult to understand how an order under article 359 which suspends the enforcement of a fundamental right can be tested under that very fundamental right
It is true that there is a distinction between article 358 and Art 3591
Article 358 by its own force suspends the fundamental rights guaranteed by article 19 article 3591 on the other hand does not suspend any fundamental right of its own force but it gives power to the President to suspend the enforcement of any fundamental right during the period of Emergency
But that cannot mean that an order passed under article 3591  suspending the enforcement of a particular fundamental right has still to be tested under the very fundamental right which it suspends
That would in our opinion be arguing in a circle and make Art 359 completely nugatory
It seems that the majority in Ghulam Sarwar s1 case was also conscious of the fact that the reasoning on which it came to the conclusion that an order made under article 359 could be tested under article 14
though it suspended that Article was open to the criticism that it was an argument in a circle
The argument was however met by making a distinction between the order and the effect of that order and it was observed that if the order did not violate article 14 it could validly take away the right to enforce the fundamental right under article 14
With greatest respect it is difficult to appreciate this reasoning and the distinction on which it is based
It seems to us that if article 359 is to have any meaning at all and is not to be wiped out from the Constitution an order passed thereunder suspending a fundamental right cannot possibly be tested under  that very fundamental right which it suspends
If that were permissible no order under article 359 could really be passed
If article 359 is not to be rendered nugatory it must be held that an order passed thereunder cannot be tested under the very fundamental right the enforcement of which it suspends
We must therefore respectfully differ from the view taken in Ghulam Sarwar s case1 and hold that an order passed under article 3591 cannot be tested with the aid of article 132 under that very fundamental right the enforcement of which it suspends
There is therefore no force in the first point raised on behalf of the petitioners
We also see no force in the second point raised by the petitioners
As we have already indicated article 359 envisages that an 1  235 order passed thereunder for suspension of the enforcement of particular fundamental right is for the sake of security of India It is therefore not necessary to enquire whether there is any nexus between a particular fundamental right suspended and the security of India
Article 359 itself posits that it may be necessary in the interest of the security of India to pass an order suspending the enforcement of any fundamental right thereunder
This is clear from the fact that article 3591 provides for the suspension of the enforcement of the fundamental rights in Part III of the Constitution only during the period of Emergency meaning thereby that suspension of the enforcement of any of the fundamental rights which the President considers necessary is for the security of India
We fail to see why only fundamental rights under article 22 or under article 312 can be suspended under article 359 Article 359 clearly shows that any fundamental right in Part Ill can be suspended during an Emergency and we cannot limit Article 359 in the face of the unambiguous and express words thereof and say that only the enforcement of fundamental right under Articles 22 and 312 can be suspended
It may be that prima facie these two fundamental rights appear to have a clearer nexus with security of India but it does not follow that other fundamental fights may not in an Emergency have such a nexus
In any case article 359 itself proceeds on the basis that the suspension of the enforcement of all or any of the fundamental rights is for the sake of security of India and so gives the power to the President to suspend such enforcement if he considers it necessary for that purpose
The second contention raised on behalf of the petitioners must also be rejected
As to the third contention we have already indicated that an order passed under article 3591 suspending the enforcement of a particular fundamental right cannot be tested under that very fundamental right
We cannot see how if the order under Art 359 suspends article 14 its validity can still be tested under that very Article
We have already expressed our respectful dissent from the view taken in Ghulam Sarwar s case1 and must reject this contention
As the enforcement of the fundamental right under article 14 was suspended by the President s order under article 359 no question of that order being bad under that Article can arise even if we assume that the provisions for detention under the Act and the Rules are more stringent than the provisions for detention under the Preventive Detention Act
The fourth contention also fails
As to the fifth contention it is urged that on
the words of the order passed by the President suspending the enforcement of fundamental rights under articles 14 21 and 22 there had to be a 236 provision in the Act and the Rules expressly to the effect that these fundamental rights would not be enforceable
We cannot understand how any provision could have been made in the Act and Rules to this effect
Such a provision in the Act 43r the Rules would be clearly unconstitutional
It is only because article 3591provides that the President may suspend the enforcement of a particular fundamental right that it is possible for the enforcement of any fundamental right to be suspended during the Emergency
What the President has provided in the present case is that the enforcement of fundamental rights under articles 14 21 and 22 would be suspended if any person has been deprived of such right under the Defence  of India Ordinance later replaced by the Act or the Rules or orders made thereunder
It is necessary to emphasis that the President s order speaks of suspension under the Ordinance later replaced by the Act or the Rules or orders made thereunder
It does not say that the enforcement of such right is suspended if any person is deprived of it by the Ordinance the Rules or orders made thereunder
Therefore it was not necessary that there should be any express provision in the Act or the Rules suspending the enforcement of fundamental rights under articles 1421 and 22
The clear intendment of the President s order is that if any fundamental right of any person under articles 14 21 and 22 was invaded by any action taken under the Ordinance later replaced by the Act or any rule or order thereunder that action could not be tested on the anvil of those fundamental rights
It was therefore not necessary to make any express provision in the Act or the Rules for the suspension of the enforcement of the fundamental rights under articles 14 21 and 22
The fifth contention must also fail
The sixth contention is that article 225 which lays down that grounds of detention must be communicated to the person detained must still be applicable
We have not been able to understand this argument at all
If the President s order is validly made as we hold it to be and if it suspends article 22 as it does we fail to see how clause 5  continues for it is only a part of article 22 which has been suspended
There is no question therefore of furnishing any ground under article 225 to the detenu if the detention is under the Act on the Rules for the entire article 22 has been suspended
The argument under this head is also rejected
This brings us to the subsidiary points raised on behalf of the petitioners
It is first said that the fresh order was not communicated to the detenues
This has been denied on behalf of the State
We see no reason why the fresh order which was passed on the same day on which the earlier order was cancelled would not have been communicated
Nothing has been shown to us to disbelieve the statement on behalf of the State that the fresh order was 237 communicated in each case and
therefore any argument based on its not being communicated must fail
Then it is argued that the order is not in the form as required by article 166
It is enough to say that article 166 does not apply to the State of Jammu and Kashmir
We have to look to the Constitution of Jammu and Kashmir to see whether the form of the order is in accordance therewith
It is clear that the order is in the form required by section 45 of the Constitution of Jammu and Kashmir
The presumption must therefore be made that it was passed validly unless the petitioners can show that it was not passed as required by law
No attempt has been made on behalf of the petitioners to show that
The contention on this head must therefore also be rejected
Lastly it is urged that the orders in these cases were mala fide
This has been denied on behalf of the State
No grounds have been shown which may lead us to the conclusion that the fresh orders which were passed were mala fide
The necessity for fresh orders arose because the review was not made in accordance with the manner indicated by this Court in Lakhanpal s case1
The fresh order that was made was on the same facts and must in the circumstances be held to be valid in view of the judgment of this Court in Jagdev Singh s case2
The petitions therefore fail and are hereby dismissed
Hidayatullah J I agree that the petitions be dismissed
As I was a member of the Constitution Bench which decided Ghulam Sarwar s2 case I wish to say a few words in explanation
The judgment of Subba Rao CJ to which I was a party has expressed itself somewhat unhappily on the point on which it has been overruled in the judgment just delivered
The former Chief Justice upheld the extension of GSR 141830 10 62 which suspended the benefits of articles 21 and 22 to a foreigner by GSR 127527 8 3965
The latter order suspended article 14 in addition to the two articles already suspended
This suspension was upheld on the ground that there was a clear classification between citizens and foreigners and in a state of war and emergency foreigners could be treated as a class
In other words the order was tested on the ground of article 14 itself which the order of the President sought to suspend
In the judgment just delivered it has been said that the reasoning in Ghulam Sarwar s3 case is difficult to understand and that the suspension of article 14 precludes examination of the order under that article
I should have thought that I had sufficiently explained my position during the discussion of the draft judgment 1  2  3  238 in Ghulam Sarwar s1 case but it appears that in spite of my doubts about the width of language in that judgment the decision to which I became a party continued to bear the meaning now attributed to it
If I may say with great respect the judgment just delivered also suffers from a width of language in the other direction
The truth lies midway
Although a suspension of a fundamental right under article 3591 may be made either for the whole of India or any part of the territory of India Ghulam Sarwar s1 case points out that there is nothing to prevent the President from restricting the scope of the order to a class of persons provided the operation of the order is confined to an area and to a period
As the order was applicable to the whole of India and for the duration of the emergency although it affected a class namely foreigners it was upheld
This was not the application of article 14
This was said because the argument was that the order could only be with reference to the whole or a part of the territory of India and not with respect to a class such as foreigners
That meant that the Order was considered in relation to the words of article 3591
Room was however to be left for the play of article 14 for those theoretically possible and fortunately only theoretically possible cases in which the exercise of the power itself may be a cloak for discrimination in other words cases of mala fide action and clear abuse of the power for some collateral purpose
This strict reservation only was intended to go into the judgment in Ghulam Sarwar s1 case but if a wider meaning can be spelled out from that judgment I dissent from it and say that I never intended to be a party to such a wide statement
The examination under article 14 of the suspension of the article itself as expressed in the judgment of Subba Rao CJ gives a very different impression
For the same reason I cannot subscribe to the width of language in the judgment just delivered which apparently does not make any reservation at all
Therefore I agree to the order proposed but reserve my reasons
RKPS Petitions dismissed


Summary:
By a petition under Art32 of the Constitutionthe petitioner challenged an order of detention passed against him under r 301b of the Defence of India Rules 1962
It was contended on his behalf inter alia i that the order of the President passed on November 3 1962 as amended on November 11 1962 under article 3591 of the Constitution suspending the right to move any court for the enforcement of the fundamental rights conferred by articles 14 21 and 22 if any person was deprived of such right during the period of the Emergency under the Defence of India Ordinance No 4 of 1962 or any rule or order made thereunder was a law within the meaning of article 132 of the Constitution and could therefore be tested against the fundamental rights in Part III of the Constitution including the very fundamental right the enforcement of which is suspended that only such fundamental rights can be suspended which have nexus with the reasons which led to the Proclamation of Emergency ie the President can only suspend enforcement of fundamental rights under articles 22 and 312 by an order under article 359 that the order under article 359 in the present case was violative of article 14 as it enabled the executive to decide
in exercise of an arbitrary discretion whether to detain a person under the more drastic provisions of the Defence of India Act 51 of 1962 or the Preventive Detention Act ii that in view of the language of article 359 there should have been an express provision in the Defence of India Act and the Rules that the enforcement of fundamental rights under articles 14 21 and 22 was suspended and in the absence of such a provision the order passed under article 359 cannot stand in the way of the detention order being tested under Part III of the Constitution iii that article 225 requires that grounds of detention should be furnished to the detenu and the President s order of November 1962 does not do away with this requirement which was not satisfied in the present case and iv that the order of detention was not in the form required by article 166 of the Constitution and the State Government therefore had to prove that it was passed by the authority empowered to do so
Held by the Court The petitions must be dismissed
Per majority i An order passed under article 3591 cannot be tested with the aid of article 132 under that very fundamental right the enforcement of which it suspends
Even if an order under article 359 is assumed to be law in its widest sense it cannot be a law within the mean 228 ing of article 132 for if that were so the Article would be made nugatory
article 359 gives categorical powers to
the President during the period when a Proclamation of Emergency is in operation to suspend the enforcement of any of the fundamental rights conferred by Part III
There is nothing in it which in any way limits the power of the President and it is for him to decide the enforcement of which of the fundamental rights should be suspended during the Emergency
234D G 232B D There is a basic assumption in article 359 that it may be necessary for the President to suspend the enforcement of any of the fundamental rights in the interest of the security of India and in the face of that basic assumption there is no scope for enquiry into the question whether the fundamental right the enforcement of which the President has suspended under article 359 has anything to do with the security of India which is threatened whether by war or external aggression or internal disturbance
It cannot be said that only fundamental rights under article 22 or article 31 2 can be suspended under article 359
232 F G 235C D Even if the provisions for detention under the Defence of India Act and the Rules are more stringent after the suspension of article 14 under article 359 no question of the order under article 359 being bad under article 14 can arise
235H Ghulam Sarwar vs Union of India   dissented from
ii The clear intendment of the President s order is that if any fundamental right of any person under articles 14 21 and 22 was invaded by any action taken under the Ordinance later replaced by the Act or any rule or order thereunder that action could not be tested on the anvil of those fundamental rights
It was therefore not necessary to make any express provision in the Act or the Rules for the suspension of the enforcement of the fundamental rights under articles 14 21 and 22
236E iii As the President s order suspending article 22 was validly made there was no question of furnishing any ground under article 225 to the detenu if the detention was under the Defence of India Act or the Rules for the entire article 22 was suspended
236G iv Article 166 has no application to the State of Jammu  Kashmir and as the detention order was made in the form required by section 45 of the Constitution of Jammu  Kashmir it must be presumed to have been validly made
237B Per Hidayatullah J
Although a suspension of a fundamental right under article 3591 may be made either for the whole of India or any part of the territory of India Ghulam Sarwar s case points out that there is nothing to prevent the President from restricting the scope of the order to a class of persons provided the operation of the order is confined to an area and to a period
As the order was applicable to the whole of India and for the duration of the emergency although it affected a class namely foreigners it was upheld
This was not the application of article 14
This was said because the argument was that the order could only be with reference to the whole or a part of the territory of India and not with respect to a class such as foreigners
That meant that the order was considered in relation to the words of article 3591
The meaning now attributed to the decision in Ghulam Sarwar s case is in view of the width of language used in that case and the decision of the majority in the present also suffers from a width of language in the other direction whereas the truth ties midway
238A F 229