iminal Appeal No 80 of 1963
Appeals by special leave from the judgment and order dated March 26 1963 of the Punjab High Court in Criminal Mis
No 186 of 1963
Criminal Appeals Nos
86 to 93 of 1963
Appeal by special leave from the judgment and order dated February 21 1963 of the Punjab High Court in Criminal Misc
No 155 102 108 105 104 101 and 107 of 1963 and judgment and order dated February 1963 of the same High Court in Criminal Misc
No 99 of 1963
Criminal Appeals Nos
109 to 111 of 1963
Appeals from the judgment and order dated May 31 1963 of the Maharashtra High Court in Criminal Applications Nos 217 218 and 114 of 1963
Criminal Appeals Nos
114 to 126 of 1963
Appeals from the judgment and order dated May 31 1963 of the Maharashtra High Court in Criminal Applications Nos 271 265 270 267 219 220 269 264 263 266 and 273 of 1963
Criminal Appeal No 65 of 1963
Appeal by special leave from the judgment and order dated April 3 1963 of the Maharashtra High Court Nagpur Bench in Criminal Application No 11 of 1963
M C Setalvad N C Chatterjee A V Viswanatha Sastri section Mohan Kumaramangalam C B Agarwala Sarjoo Prasad D R Prem A section R Chari section G Patwardhan W section Barlingay Etharajalu Naidu Veda Vyas Raghubir Singh K T 
Sule Asif Ansari Hardayal Hardy Bawa Shiv Charan Singh section N Mukherjee Durgabhai Deshmukh M section K Sastri G B Rai Ganpat Rai D N Mukherjee A N Sinha Udayaratnam K V Raghnatha Reddy Janardhan Sharma K R Choudhury B P Maheshwari I B Goyal I K Nag Y Kumar Hardev Singh M I Khowaja section section Shukla K K lain Bishambar Lal Khanna section Murthi P K Chakravarti P K Chatterjee A George Pudussary Girish Chandra Mathur Udai Pratap 804 SinghYogeshwar PrasadM R Krishna Pillai B DSharma K P Gupta T section Venkataraman M VeerappaTRRamachandra R C Prasad Santosh ChatterjeeNN Keshwani K Jayaram R Ganapathy Iyer Thyagarajan R Vasudeva Pillai R V section Mani section C Majumdar Shaukat Hussain K Baldev Mehta Mohan Behari Lal Sadhu Singh V G Row section N Kakkar section K Kapur Parthasarathy Shanti Swarup Bhatnagar K L Mehta Satish Mehta Brij Kishore Prasad Ali Ahmad V A Syeid Muhammad Narayanarayan Gooptu Tapesh Roy Madhan Bhaittia Ajit Singh Banis and Brij Raj Kishore J B Dada chanji O C Mathur Ravinder Narain D P Singh M K Ramamurthi R K Garg and section C Agarwal for the appellant in Cr A No 80 of 1963
C K Daphtary Attorney General L K Kaushal Deputy Advocate General Punjab D D Chaudhuri R N Sachthey and R H Dhebar for the respondent in Cr A No 80 of 1963
A section R Chari D P Singh M K Ramamurthi R K Garg and section C Agarwal for the appellant in Cr A No 86 of 1963
Hardev Singh and Y Kumar for the appellants in Cr A Nos
87 to 93 of 1963
L D Kaushal Deputy Advocate General Punjab DDChaudhri R N Sachthey and R H Dhebar for the respondent in Cr A Nos 86 to 93 of 1963
A section R Chari 0
P Malhotra B Parthasarathy J B Dadachanji 0
C Mathur and Ravinder Narain for the appellant in Cr A No 65 of 1963
N C Chatterjee and Janardan Sharma for the appellant in Cr A No 109 of 1963
K T Sule Jitendra Sharma and Janardan Sharma for the appellants in Cr A Nos 111 and 114 to 126 of 1963 and for the Detenue Interveners Nos 12 14 16 18 and 37
C K Daphtary Attorney General N section Bindra B R G K Achar R N Sachthey and R H Dhebar for the respondents in Cr A No 65 109 to 111 and 114 to 1261963
C K Daphtary Attorney General H N Sanyal Solicitor General section V Gupte Additional Solicitor General RNSachthey and R H Dhebar for intervener No 1 Naunit Lal for intervener No 1
B Sen and P K Bose for intervener No 3
section P Varma for intervener No 4
M Adhikari Advocate General Madhya Pradesh and INShroff for intervener No 5
A Ranganadham Chetty and A F Rangam for intervener No 6
G C Kasliwal Advocate General Rajasthan R HDhebar R N Sachthey for intervener No 7
C P Lal for intervener No 8
N C Chatterjee Narayan Gooptu Tapesh Roy D PSingh M K Ramamurthi R K Garg and section C Agarwal for intervener No 69
A section R Chari Narayan Gooptu Tapesh Roy D P Singh M K Ramamurthi R K Garg and section C Agarwal for intervener No 70
A section Peerbhoy A Desai M Rajagopalan and K R Choudhari for interveners Nos 79 and 80
September 2 1963
The judgment of P B Gajendragadkar A K Sarkar K N Wanchoo M HidayatullahB Gajendragadkar J K Subba Rao J delivered a dissenting Opinion
GAJENDRAGADKAR J
This group of 26 criminal appeals has been placed for hearing and disposal before a special Constitutional Bench because the appeals constituting the group raise two common important questions of Constitutional law
Nine of these appeals have been preferred against the decisions of the Punjab High Court whereas seventeen have been preferred against the decisions of the Bombay High Court
All the appellants are detenues who have been detained respectively by the Punjab and the Maharashtra State Governments under Rule 301b of the Defence of India Rules hereinafter called the Rules made by the Central Government in exercise of the powers conferred on it by section 3 of the Defence of India Ordinance 1962 No 4 of 1962 hereinafter called the Ordinance
They applied to the Punjab and the Bombay High Courts respectively under section 491 1 b of the Code of Criminal Procedure and alleged that they had been improperly and illegally detained
Their contention was that section 32151 and section 40 of the Defence 806 of India Act 1962 No 51 of 1962 hereinafter called the Act  and Rule 361b under which they have been detained are constitutionally invalid because they contravene their fundamental rights under Articles 14 21 and 224 5  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
These petitions have been dismissed on the ground that the Presidential Order which has been issued under article 359 of the Constitution creates a bar which precludes them from moving the High Court under section 491 1 b Cr
That is how the decisions of the two High Courts under appeal raise two common questions of considerable importance
The first question is  what is the true scope and effect of the Presidential Order which has been issued under article 359 1  The answer to this question would depend upon a fair and reasonable construction of article 3591 itself
The second question is  does the bar created by the Presidential Order issued under article 3591 operate in respect of applications made by detenues under section 491 1 b of the Code The answer to this question would depend upon the determination of the true character of the proceedings which the detenues have taken under section 4911b considered in the light of the effect of the Presidential Order issued under article 3591
Both the Punjab and the Bombay High Courts have held against the appellants
Meanwhile when similar petitions were made before the Allahabad High Court in Criminal Cases Nos 1618 1759 and 1872 of 1963 Sher Singh Negi vs District Magistrate Kanpur  Anr the said High Court took a contrary view and directed the release of the detenues who had moved it under section 491 1 b of the Code
It is because the questions raised are important and the answers given by the different High Courts have disclosed a sharp difference of opinion that a Special Bench has been constituted to deal with these appeals
If the two principal questions are answered in favour of the detenues a third question would arise and that relates to the validity of the impugned sections of the Act and the relevant statutory Rules
On the 8th September 1962 the Chinese aggressively attacked the northern border of India and that constituted a threat to the security of India
That is why on 807 the 26th October 1962 the President issued a Proclamation under article 352 of the Constitution
This Proclamation declared that a grave emergency existed whereby the security of India was threatened by external aggression
On the same day the Ordinance was promulgated by the President
This Ordinance was amended by Ordinance No 6 of 1962 promulgated on November 3 1962
On this day the President issued the Order under article 3591 suspending the rights of citizens to move any Court for the enforcement of the rights conferred by articles 21 and 22 of the Constitution for the period during which the proclamation of emergency issued on October 26 1962 would be in force
On November 6 1962 the rules framed by the Central Government were published
Then followed an amendment of the Presidential Order on November 11 1962
By this amendment for the words and figures article 21 the words and figures articles 14 and 21 were substituted
On December 6 1962 Rule 30 as originally framed was amended and Rule 30 A added
Last came the Act on December 12 1962
Section 481 of the Act has provided for the repeal of the Ordinances Nos 4 and 6 of 1962
Section 482 provides that notwithstanding such repeal any rules made anything done or any action taken under the aforesaid two Ordinances shall be deemed to have been made done or taken under this Act as if this Act had commenced on October 26 1962
That is how the Rules made under the Ordinance continued to be the Rules under the Act and it is under Rule 301 b that the appellants have been detained
Before dealing with the points which have been raised for our decision in the present appeals it is necessary to indicate briefly at the outset the general argument which has been urged before us by Mr Setalvad on behalf of the appellants and the learned Attorney General on the other side
article 3591 which falls to be construed occurs in Part XVIII of the Constitution which makes emergency provisions
Whenever the security of India or any part of the territory of India is threatened whether by war or by external aggression or internal disturbance the President may under article 352 by proclamation make a declaration to hat effect
Articles 353 to 360 which occur in this Part thus constitute emergency provisions
The learned 808 Attorney General contends that in construing an emergency provision like article 3591 we must bear in mind the fact that the said Article is intended to deal with a situation which has posed a threat to the security of India and so fundamental rights guaranteed by Part III which are un doubtedly of vital importance to the democratic way of life guaranteed by the Constitution have to be regulated during an emergency because the very security of the nation is exposed to serious jeopardy
The security of the nation on such a solemn occasion must have precedence over the liberty of the individual citizens and so it is urged that if article 359 is capable of two constructions one in favour of the fundamental rights of the citizens and the other in favour of the grant of power to the President to control those rights the Court should lean in favour of the grant rather than in favour of the individual citizen s fundamental rights
In support of this argument the learned Attorney General has relied on two decisions of the House of Lords
In The King At the Prosecution of Arthur Zadig vs Halliday1 Lord Finlay L C who was called upon to construe Regulation 14B of the Defence of the Realm Consolidation Regulations Act 1914 noticed the argument that if the Legislature had intended to interfere with personal liberty it would have provided as on previous occasions of national danger for suspension of the rights of the subject as to a writ of habeas corpus and rejected it with the observations that the Legislature bad selected another war of achieving the same purposes probably milder as well as more effectual than those adopted on the occasion of previous wars
He added that the suggested rule as to construing penal statutes and the provision as to trial of British subjects by jury made by the Defence of the Realm Act 1915 have no relevance in dealing with an executive measure by way of preventing a public danger
The majority decision of the House of Lords in Liversidge vs Sir John Anderson 2  has also been relied upon by the learned Attorney General
In that case the House or Lords had to consider the true scope and effect of Regulation 18B of the Defence General Regulations 1939
1   270
2  809 Viscount Maugham in I rejecting the argument of the detenu that the liberty of the subject was involved and that the legislation dealing with the liberty of the subject must be construed if possible in favour of the subject and against the Crown quoted with approval the language of Lord Finlay L C in the case of Rex vs Halliday1
Lord Macmillan who took the same view observed that it is right so to interpret emergency legislation as to promote rather than to defeat its efficacy for the defence of the realm
That is in accordance with a general rule applicable to the interpretation of all statutes or statutory regulations in peace time as well as in war time
Lord Wright and Lord Romer adopted the same approach
The Attorney General relies on the fact that this approach has also been adopted by Gwyer C J in Keshav Talpade vs The King Emperor2
In making his contention in regard to the proper approach
which the Court should adopt in construing article 359 the learned Attorney General no doubt contended that the question about the approach would arise only if two constructions are reasonably possible
According to him article 359 was capable of only one construction and that is the construction which the High Courts of Punjab and Bombay have accepted
On the other hand Mr Setalvad has argued that article 359 is not an emergency legislation properly so called and on the merits he has strongly resisted the suggestion made by the learned Attorney General that if two reasonable constructions are possible we should adopt that which is in favour of the grant of power to the President and not in favour of the citizens fundamental rights
He has relied on the minority speech of Lord Atkin in the case of Liversidge3 and has argued that the view taken by Lord Atkin should be preferred to the majority view which the House of Lords adopted in that case
In this country observed Lord Atkin amid the clash of arms the laws are not silent
They maybe changed but they speak the same language in war as in peace
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 respecters of persons and stand between 1   270
3  2  63
52 2 section C lndia64 810 the subject and any attempted encroachments on his liberty by the executive alert to see that any coercive action is justified in law
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 Realising that he was in a minority Lord Atkin added that he protested even if he did it alone against a strained construction put on words with the effect of giving ail uncontrolled power of imprisonment to the Minister
In this connection Mr Setalvad referred to two subsequent decisions of the Privy Council in which the view taken by Lord Atkin has been accepted vide Nakkuda Ali vs M F De section layaratne1 and King Emperor vs Vimalabai Deshpande2
In the former case Lord Radcliffe observed that indeed it would be a very unfortunate thing if the decision of Liversidge s case came to be regarded as laying down any general rule as to the construction of such phrases when they appear in statutory enactments and he added that the said decision is an authority for the proposition that the words if A B has reasonable cause to believe are capable of meaning if A B honestly thinks that he has reasonable cause to believe and that in the context and attendant circumstances of Defence Regulation 18B they did in fact mean just that
In distinguishing the said decision Lord Radcliffe made the somewhat significant comment that the elaborate consideration which the majority of the House gave to the context and circumstances before adopting that construction itself shows that there is no general principle that such words are to be so understood
Mr Setalvad has also invited our attention to the fact that the majority decision of the House of Lords in Liversidge3 has not received the approval from jurists vide Maxwell on Interpretation of Statutes p 276 footnote 54 Craies on Statue Law p 309 and Friedmann Law in a Changing Society p 37 Like the Attorney General Mr Setalvad also urged that the stage to choose between two rival constructions would not arise in the present appeals because according to him the construction for which he contended was the only reasonable construction of article 359
1  76
2 73 IA 144
3  811 In our opinion it is unnecessary to decide the merits of the rival contentions urged before us in regard to the rule of construction and the approach which the Court should adopt in construing article 359
It is common ground that the question of approach would become relevant and material only if we are satisfied that article 359 is reasonably capable of two alternative constructions
As we will presently point out after hearing counsel on both sides we have reached the conclusion that article 359 is reasonably capable of only one construction and that is the construction which has been put on it by the Punjab and Bombay High Courts
That is why we are relieved of the task of dealing with the merits of the controversy between the parties on this point
Let us then revert to the question of construing article 359
In doing so it may be relevant and somewhat useful to compare and contrast the provisions of Articles 358 and 359
Indeed both Mr Setalvad and the learned Attorney General contended that article 359 should be interpreted in the light of the background supplied by the comparative examination of the respective provisions contained in articles 358 and 359 1  2
The said two Articles read as under  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 competency 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 in force or for such shorter period a may be specified in the order
812 2Any order made as aforsesaid may extend to the whole or any part of the territory of India
 It would be noticed that as soon as a Proclamation of Emergency has been issued under article 352 and so long as it lasts article 19 is suspended and the power of the legis latures as well as the executive is to that extent made wider
The suspension of article 19 during the pendency of the Proclamation of emergency removes the fetters created on the legislative and executive powers by article 19 and if the legislatures make laws or the executive commits acts which are inconsistent with the rights guaranteed by article 19 their validity is not open to challenge either during the continuance of the emergency or even thereafter
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 article 19 because as soon as the emergency is lifted article 19 which was suspended during the emergency is automatically revived and begins to operate
Article 358 however makes it clear that things done or omitted to be done during the emergency cannot be challenged even after the emergency is over In other words the suspension of article 19 is complete during the period in question and legislative and executive action which contravenes article 19 cannot be questioned even after the emergency is over
Article 359 on the other hand does not purport expressly to suspend any of the fundamental rights
It authorises the President to issue an order declaring that the right to move any court for enforcement of such of the rights in 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
What the Presidential Order purports to do by virtue of the power conferred on the President by article 3591 is to bar the remedy of the citizens to move any court for the enforcement of the specified rights
The rights are not expressly suspended but the citizen is deprived of his right to move any court for their enforcement
That is one important 813 distinction between the provisions of article 358 and article 3591
Before proceeding further we may at this stage in parenthesis observe that there has been some argument before us on the question as to whether the fundamental rights specified in the Presidential Order issued under article 359 are even theoretically alive during the period specified in the said Order
The learned Attorney General has contended that the suspension of the citizens  right to move any court for the enforcement of the said rights in law amounts to the suspension of the said rights themselves for the said period
We do not propose to decide this question in the present appeals
We will assume in favour of the appellants that the said rights arc in theory alive and it is on that assumption that we will deal with the other points raised in the present appeals
The other distinction lies in the fact that the suspension of article 19 for which article 358 provides continues so long as the Proclamation of Emergency is in operation whereas the suspension of the right to move any court which the Presidential Order under article 3591 brings about can last either for the period of the Proclamation or for a shorter period if so specified by the Order
It would be noticed that the Presidential Order cannot widen the authority of the legislatures or the executive it merely suspends the rights to move any court to obtain a relief on the ground that the rights conferred by Part III have been contravened if the said rights are specified in the Order
The inevitable consequence of this position is that as soon as the Order ceases to be operative the infringement of the rights made either by the legislative enactment or by executive action can perhaps be challenged by a citizen in a court of law and the same may have to be tried on the merits on the basis that the rights alleged to have been infringed were in operation even during the pendency of the Presidential 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
814 Since the object of article 3591 is to suspend the rights of the citizens to move any court the consequence of the Presidential Order may be that any proceeding which may be pending at the date of the Order remains suspended during the time that the Order is in operation and may be revived when the said Order ceases to be operative and fresh proceedings cannot be taken by a citizen after the Order has been issued because the Order takes away the right to move any court and during the operation of the Order the said right cannot be exercised by instituting a fresh proceeding contrary to the Order
If a fresh proceeding failing within the mischief of article 3591 and the Presidential Order issued under it is instituted after the Order has been issued it will have to be dismissed as being incompetent
In other words article 3591 and the Presidential Order issued under it may constitute a sort of moratorium or a blanket ban against the institution or continuance of any legal action subject to two important conditions
The first condition relates to the character of the legal action and requires that the said action must seek to obtain a relief on the ground that the claimant s fundamental rights specified in the Presidential Order have been contravened and the second condition relates to the period during which this ban is to operate
The ban operates either for the period of the Proclamation or for such shorter period as may be specified in the Order
There is yet another distinction between the provisions of article 358 and article 3591
The suspension of Art 
19 for which provision is made under article 358 applies to the whole of the country and so covers all legislatures and also States
On the other hand the Order issued under article 3591 may extend to the whole of India or may be confined to any part of the territory of India
These broadly stated are the points of distinction between article 358 and article 3591 What then is the true scope and effect of article 3591 Mr Setalvad contends 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 should be construed to mean the right to move the Supreme Court which has been guaranteed by article 321
He suggests that as one reads the relevant clause in article 3591 one seems 815 to hear the echo of the right which has been constitu tionally guaranteed by article 321
His argument therefore is that the only right of which a citizen can be deprived under article 3591 is the right to move the Supreme Court and so his case is that even in regard to fundamental rights specified in the Presidential Order a citizen is entitled to ask for reliefs from the High Court under article 226 because the right to move the High Court flowing from article 226 does not fall within the mischief of article 3591
This argument attempts to interpret the words the right to move for the enforcement of the specified rights in isolation and without taking into account the other words which indicate that the right to move which is specified in the said Article is the right to move any courts
In plain language the words any court cannot mean only the Supreme Court they would necessarily take in all courts of competent jurisdiction
If the intention of the Constitution makers was to confine the operation of article 3591 to the right to move only the Supreme Court nothing could have been easier than to say so expressly instead of using the wider words the right to move any court  To meet this difficultyMr
Setalvad attempted to invoke the assistance of article 323
article 323 provides that without prejudice to the powers conferred on the Supreme Court by clauses 1 and  2 Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause 2
The argument is that the Constitution contemplates that there may be some other courts in the country on which the powers exercisable by the Supreme Court under article 322 may be conferred and so the words any court may have been intended to take within their purview the Supreme Court and such other courts oil whom the Supreme Courts powers under article 322 may have been conferred
This argument is fallacious
The scheme of article 32 clearly indicates that the right to move this Court which itself is a guaranteed fundamental right cannot be claimed in respect of courts falling under article 323
article 323 merely provides for the conferment of this Court s 816 powers under article 322 on the courts specified in clause 3
The right guaranteed by article 321 cannot be claimed in respect of the said other courts
Therefore oh a plain construction of the relevant clauses of article 32 it is impossible to accept the argument that courts under article 323 must be regarded as having the same status as the Supreme Court and as such the right to move them must also be held to constitute a fundamental right of the citizen in respect of such courts
Besides it would be irrational to suggest that whereas the Constitution did not confer on the citizens a guaranteed fundamental right to move the High Court under article 226 it thought of conferring such a guaranteed fundamental right in regard to courts on which the Supreme  Court s powers under article 322 would be conferred by article 323
Therefore the attempt to suggest that the use of the words any Court used in article 3591 is justified because they take in the Supreme Court and some other courts fails and the conclusion inevitably follows that the words any court must be given their plain grammatical meaning and must be construed to mean any court of competent jurisdiction
In other words the words any court include the Supreme Court and the High Courts before which the specified rights can be enforced by the citizens
In this connection it was attempted to be argued that the power of the High Court to issue the writs or orders specified in article 2261 is a discretionary power and as such no citizen can claim to have a right to move the High Court in that behalf and 
so it was suggested that the proceedings contemplated by article 2261 are outside the purview of article 3591
In our opinion this argument is not well founded
It is true that in issuing writs or orders under article 2261 the High Courts have discretion to decide whether a writ or order should be issued as claimed by the petitioner but the discretion conferred on the High Courts in that behalf has to be judicially exer cised and having regard to the scheme of article 2261 it cannot be said that a citizen
has no right to move the High Court for invoking its jurisdiction under article 2261 article 2261 confers wide powers on the High Courts to issue the specified writs or other appropriate orders or directions having regard to the nature of the said powers 817 and the object intended to be achieved by their conferment there can be little doubt that in dealing with applications made before them the High Courts have to exercise their discretion in a judicial manner and in accordance with principles which are well settled in that behalf
The High Courts cannot capriciously or unreasonably refuse to en tertain the said applications and to deal with them on the merits on the sole ground that the exercise of their juris diction under article 2261 is discretionary
Therefore it is idle to suggest that the proceedings taken by citizens under article 2261 are outside the purview of article 3591
We must accordingly hold that the right to move any court under article 3591 refers to the right to move any court of competent jurisdiction
The next question to consider is what is the nature of the proceedings which are barred by the Presidential Order issued under article 3591  They are proceedings taken by citizens for the enforcement of such of the rights conferred by Part III as may be mentioned in the order
If a citizen moves any court to obtain a relief on the ground that his fundamental rights specified in the Order have been contravened that proceeding is barred
In determining the question as to whether a particular proceeding falls within the mischief of 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 consider 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 article 3591 and would therefore be hit by the Presidential Order issued under the said Article
The sweep of article 3591 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 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 818 said specified fundamental rights
We have already seen that the operation of article 3591 and the Presidential Order issued under it is limited to the period during which the proclamation of emergency is in force or for such shorter period as may be specified in the Order
That being so we feel no difficulty in holding that proceedings taken by a citizen either under article 321 or under article 2261 are hit by article 3591 and the Presidential Order issued under it
In this connection it would be legitimate to add that the contention of the appellants which seeks to confine the operation of article 3591 only to the right to move the Supreme Court would make the said provision almost meaningless
There would be no point in preventing the citizen from moving this Court while leaving it open to him to move the High Courts for the same relief and then to come to this Court in appeal if necessary
That takes us to the question as to whether proceedings taken by a citizen under section 4911b are affected by article 3591 and the Presidential Order issued under it
Section 491 1 b inter alia provides that any High Court may whenever it thinks fit direct that a person illegally or improperly detained in public custody be set at liberty
It has been strenuously urged before us that the proceedings for obtaining directions of the nature of habeas corpus which are taken under section 491 1 b are outside article 3591 and so the Presidential Order cannot create a bar against a citizen asking the High Court to issue a writ in the nature of habeas corpus under the said provision
It is necessary to examine this argument very carefully
It is well known that after section 491 was enacted in the Code of Criminal Procedure in the present form in 1923 the right to obtain a direction in the nature of a habeas corpus became a statutory right 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
This question was elaborately considered by Rankin C J in Girindra Nath Banerjee vs Birendra Nath Pal1 where the learned CJ considered the history of the development of the law on this point and came to the conclusion that the relief of a writ in the nature of a habeas corpus could be claimed 1 ILR 819 after 1923 solely under Cr P C
The same view was taken by a full Bench of the Madras High Court in District Magistrate Trivandrum vs K C Mammen Mappillal1 where the said High Court held that it had no power to issue a writ of habeas corpus as known to the English Common Law
Its powers are confined in that respect to those conferred by section 491 of the Code of Criminal Procedure which gives authority to issue directions of the nature of habeas corpus
When this point was raised before the Privy Council in Matthen vs District Magistrate of Trivandrum 2 their Lordships observed that the reasoning of Rankin CJ in the case of Girindra Nath Banerjee3 was so clear and convincing that they were content to adopt it as also to state that they were in entire agreement with the views expressed by him
The same view was expressed by the Privy Council in King Emperor vs Sibnath Banerji4
Basing himself on these decisions Mr Setalvad contends that the statutory right to obtain relief under section 491 1 b is a right which is separate and distinct from the Constitutional right guaranteed by the relevant Articles of the Constitution and so article 3591 cannot be said to apply to the proceedings under section 491 1 b
In support of the same contention Mr Setalvad has also pressed into service the provisions of article 372 by which the existing laws are continued and he has invited our attention to the provisions of article 225 and 375 to show that the jurisdiction conferred on the High Courts by section 491 Cr P C continues unless it is expressly taken away by a competent piece of legislation
In this connection reliance has also been placed on the fact that in the past whenever the operation of section 491 was intended to be suspended the legislature made a specific provision in that behalf and as an illustration reference is made to section 10 of the Restriction and Detention Ordinance 1944 No III of 1944
Section 10 specifically refers to section 491 of the Code and provides that no Court shall have power to make any order under the said section in respect of any order made under or having effect under the Ordinance or in respect of any person the subject of such an order
It is urged that the Presidential Order is con 1 ILR 66 IA 222
3 ILR 54 Cal 7274 72 IA 241
820 fined only to proceedings taken for enforcement of consti tutional rights and if it was intended that the proceedings under section 4911b should also be prohibited it was essen tial that the said provision should in terms have been suspended by a competent piece of legislation
Mr Setalvad has also emphasised the fact that the approach in dealing with a proceeding under section 4911b is different from the approach which the courts adopt in dealing with proceedings under article 226 or article 32
In invoking the Jurisdiction of the High Courts under article 2261 or that of the Supreme Court under article 321 the Courts always enquire whether the party concerned is aggrieved by the order against which complaint is made
Under section 4911b however the court can take action suo motu and that brings out the difference in the character of the two respective categories of proceedings
That broadly stated is the manner in which Mr Setalvad has raised his contention that proceedings under section 491 1 b are outside the purview of the Presidential Order and do not fall within the mischief of article 3591
There is no doubt that the right to ask for a writ in the nature of habeas corpus which could once have been treated as a matter of Common Law has become a statutory right after 1923 and as we have already seen 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 provisions of section 4911b itself
It has however been suggested by the learned Attorney General that just as the common law right to obtain a writ of habeas corpus became a statutory right in 1923 a part of the said statutory tight has now become a part of the fundamental rights guaranteed by the Constitution and so after the Constitution came into force whenever a detenu claims to be released from illegal or improper  detention his claim can in some cases be sustained on the ground that illegal or improper detention affects his fundamental rights guaranteed by articles 19 or 21 or 23 as the case may be
If that be so it would not be easy to accede to the argument that the said part of the statutory right recognised by section 4911b retains its distinctive and independent character even after 821 the Constitution came into force to such an extent that it cannot be said to form part of the fundamental rights guaranteed by the Constitution
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 article 2261 or article 321 of the Constitution or he may take a proceeding under s4911b of the Code
But it seems to us that 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
It is no doubt urged that under section 491 1 b a stranger can apply for the release of a detenu improperly or illegally detained or the Court itself can act suo motu
This argument is based on the provision that the High Court may whenever it thinks fit issue the appropriate direction
The learned Attorney General contended that the clause whenever it thinks fit postulates that some application or petition has been filed before the Court and on perusing the application or petition it appears to the Court fit to take the appropriate action
In other words his argument is that the Court cannot take suo motu action under section 4911b
He has also urged that a third person may apply but he must show that he has been duly authorised to act on behalf of the detenu or he must at least purport to act on his behalf
We do not think it necessary to express any opinion on this part of the controversy between the parties
We are prepared to assume that the court can in a proper case exercise its power under section 4911b suo motu but that in our opinion does not affect the decision of the question with which we are concerned
If article 3591 and the Presidential Order issued under it govern the proceedings taken under section 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 822 Court cannot purporting to act suo motu pass any order inconsistent with the provisions of article 3591 and the Presidential Order issued under it
Similarly if the pro ceedings under section 4911b are hit by article 3591 and the Presidential Order the arguments based on the provisions of article 372 as well as articles 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 right  is to suspend the Jurisdiction of the Court pro tanto in that behalf
Let us take a concrete case which will clearly bring
out the character of the proceedings taken by the detenues in the present cases
An application is made on behalf of the detenu that he is illegally or improperly detained
The State in its return pleads that the detention is neither illegal nor improper because it has been effected under rule 301 b and in support of this return reliance is placed on the provisions of section 3215i of the Act
On receiving this return it is urged on behalf of the detenu that the provisions of section 3215i as well as Rule 301b are invalid because they contravene the fundamental rights guaranteed to the citizens under articles 14 21 and 22 and so the sole issue which falls to be determined between the parties relates to the validity of the relevant statutory provisions and Rules
If the impugned provisions in the Act and the Rules are ultra Vires the detention is illegal and improper but if on the other hand the said provisions are valid the detention is legal and proper
In deciding this point the Court will naturally have to take into account the provisions of section 451 of the Act
Section 451 provides that no order made in exercise of any power conferred by or under this Act shall be called in question in any Court and the reply of the detenu inevitably would be that notwithstanding this provision the validity of the impugned legislation must be tested
This clearly brings out the true nature and character of the dispute which is raised before the Court by the detenu in asking for the issue of a writ of habeas corpus in the present proceedings
The question which thus arises for our decision is can it be said that the proceedings taken under section 491 1 b are 823 of such a distinctly separate character that they cannot fall under article 3591  Under section 491 as it stood before the date of the Constitution it would have been open to the detenu to contend that the law under which he was detained was invalid because it was passed by a legislature without legislative competence
The validity of the law might also have been challenged on the ground that the operative provision in the law suffered from the vice of excessivedelegation
The detenu might also have urged that in detaining him the mandatory provisions under the Act had not been complied with
But before the Constitution was adopted it would not have been open to the detenu to claim that the impugned law was invalid because it contravened his fundamental rights guranteed by the relevant Articles of the Constitution
The right to challenge the validity of a statute on the ground that it contravenes the fundamental rights of the citizens has accrued to the citizens of this country only after and as a result of the provisions of the Constitution itself and SO there can be no doubt that when in the present proceedings the detenues seek to challenge the validity of the impugned statutory provision and the Rule they are invoking their fundamental rights under the Constitution
If section 491
is treated as standing by itself and apart from the provisions of the Constitution the plea raised by the detenues cannot be entertained in the proceedings taken under that section  it is only when the proceedings taken under the said section are dealt with not only in the light of section 491 and of the rights which were available to the citizens before 1950 but when they are considered also in the light of the fundamental rights guaranteed by the Constitution that the relevant plea can be raised
In other words it is clear that the content of the detenu s right to challenge the legality of his detention which was available to him under section 4911b prior to the Constitution has been enlarged by the fundamental rights guaranteed to the citizens by the Constitution and so whenever a detenu relies upon his fundamental rights even in support of his petition made under section 4911b he is really enforcing the said rights and in that sense the proceedings inevitably partake of the character of proceedings taken by the detenu for enforcing these rights that is why the argument that article 3591 824 and the Presidential Order issued under it do not apply to the proceedings under section 4911b cannot be sustained
The prohibition contained in the said Article and the Presidential Order will apply as much to proceedings under section 4911b as to those under article 2261  article 321
In this connection it is hardly necessary to emphasise that in deciding the present question we must take into account the substance of the matter and not attach undue or exaggerated importance to the form of the proceedings
If the form which the proceedings take is held to be decisive in the matter it would lead to this irrational position that an application containing the requisite averments in support of a plea for the release of the detenu would be thrown out by the High Court if in form it purports to be made under article 226 whereas it would be entertained and may indeed succeed if it purports to be made under section 4911b
Indeed this argument seems to suggest that when the Constitution makers drafted article 359 they intended that whenever an emergency arises and a Presidential Order is issued under article 3591 in regard to the fundamental rights guaranteed by articles 21 and 22 it would be necessary to pass another piece of legislation providing for an appropriate change or repeal of a part of the provision of section 4911b Cr P C and since the legislature has through oversight omitted to pass the necessary Act in that behalf proceedings under section 4911b must be allowed to be continued free from the bar created by the Presidential Order
In our opinion this position is wholly untenable
Whether or not the proceedings taken under section 4911b fall within the purview of the Presidential Order must depend upon the construction of article 3591 and the Order and in dealing with this point we must look at the substance of the matter and not its form
Before giving relief to the detenu who alleges that he has been illegally and impropely detained is the High Court required to consider the validity of the operative provisions of the impugned Act on the ground that they infringe the specified fundamental rights If yes the bar created by article 3591 and the Presidential Order must inevitably step in even though the proceedings in form may have been taken under section 49t1b of the Code
In our opinion therefore once it is shown that the proceedings under 825 s4911b cannot make a substantial progress unless the validity of the impugned law is examined on the ground of the contravention of the specified fundamental rights it must follow that the bar created by the Presidential Order operates against them as much as it operates against proceedings taken under article 2261 or article 321
Thus the true legal position in substance is that the clause the right to move any court used in article 3591 and the Presidential Order takes in all legal actions intended to be filed or filed in which the specified rights are sought to be enforced and it covers all relevant categories of Jurisdictions of competent courts under which the said actions would otherwise normally have been entertained and tried
At this stage we may conveniently refer to the recent decision of this Court in Sree Mohan Chowdhury vs The Chief Commissioner Union Territory of Tripura1 wherein this Court rejected the detenu s petition on the ground that it was barred by the Presidential Order and it refused to entertain the argument that the Ordinance and the Act and the Rules framed thereunder were void for the reason that they contravened articles 14 21  22 with the observation that the challenge made by the petitioner in that behalf really amounted to arguing in the circle
If the Presidential Order precludes a citizen from moving the Court for the enforcement of the specified fundamental rights it would not be open to the citizen to urge that the Act is void for the reason that it offends against the said fundamental rights
It is in order to prevent the citizen from making such a claim that the Presidential Order has been issued and so during the period of its operation the challenge to the validity of the Act cannot be entertained
Incidentally it may be observed that a petition for a writ of habeas corpus made by Mohan Chowdhury which was rejected by this Court on the ground that it was barred under the Presidential Order would on the view for which the appellants contend be competent if it is presented before the appropriate High Court under section 4911b of the Code and that incidentally illustrates how exaggerated importance to the form of the petition would lead to extremely anomalous and irrational consequences
Therefore our conclusion is that the proceedings 1 1964 3 SCR412
53 2 SC India64 826 taken on behalf of the appellants before the respective High Courts challenging their detention on the ground that the impugned Act and the Rules arc void because they contravene articles 14 21 and 22 arc incompetent for the reason that the fundamental rights which are alleged to have been contravened are specified in the Presidential Order and all citizens ire precluded from moving any Court for the enforcement of the said specified rights
The next question to consider is the validity of tile Presidential Order itself which was issued on the 3rd November 1962
This is how the Order reads GSR 1464
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 suspends for the period during which the Proclamation of Emergency issued under clause 1 of article 352 thereof on lie 26th October 1962 is in force if such person has been delivered of any such rights under the Defence of India Ordanance 1962 4 of 1962 or any rule or order made thereunder
 We have already stated that this Order was subsequently modified on the 11th November 1962 by the addition of article 14
The first argument which has been urged against the validity of this Order is that it is inconsistent with the provisions of article 3591
It is argued that the Order which the President is authorised to issue under this Article must be an Order of general application in fact the Order purports to be confined to persons who have been deprived of any of the specified rights under the Defence of India Ordinance 1962 or any Rule or Order made thereunder
In other words there is no doubt that this Order does not apply to persons who have been detained under the provisions of the earlier No 4 of 1950 and so in limiting the application of the Order to persons who have been detained under the Ordinance the President has acted outside the powers conferred on him by article 3591
In our opinion this argument cannot be sustained
The power conferred on the President is wide enough to enable him to make an Order applicable to all parts of the country and to all 827 citizens and in respect of any of the rights conferred by Part 111
This wide power obviously includes the power to issue a limited order
What the Order purports to do is to provide that all persons wherever they reside who have been detained under the Ordinance or the Act will be precluded from moving any court for the enforcement of the rights specified in the Order
It is not easy to see how this Order can be said to contravene or be otherwise inconsistent with the powers conferred on the President by article 3591
It is then argued that the said Order is invalid because it seeks to give effect to the Ordinance which is void
It will be recalled that Ordinance No 4 of 1962 was promul gated on the 26th October 1962 whereas the Order was issued under article 3591 on the 3rd November 1962
The argument is that during the period between the 26th October and the 3rd November the validity of the said Ordinance could have been challenged on the ground that it contravened articles 14 21 and 22 and so the said Ordinance can be held to have been a still born piece of legislation and yet detentions effected under such a void law are sought to be protected by the Presidential Order by depriving the the detenues of their right to move any court to challenge the validity of the orders of detention passed against them
In our opinion this argument is wholly misconceived
We have already stated that for the purpose of these appeals we are prepared to assume that despite the issue of the Order under article 3591 the fundamental rights guaranteed by articles 14 21 and 22 are not suspended what is suspended is the enforcement of the said rights during the prescribed period and so what is said about the invalidity of the Ordinance during the period between 26th October and 3rd November is true even after the Order was issued on the 3rd November
If the detenues are justified in contending that the Ordinance and the Act which took its place contravened the fundamental rights guaranteed by articles 14 21 and 22 the said Ordinance and the Act would be and would continue to be invalid but the effect of the Presidential Order is that their invalidity cannot be tested during the prescribed period
Therefore the argument that since the Ordinance or the Act is invalid the Presidential Order cannot preclude a citizen from test 828 ing its validity must be rejected
The same argument is put in another form
It is urged that we have merely to examine the Ordinance and Act to be satisfied that articles 14 21 and 22 4 5 and 7 have been contravened and it is suggested that if these infirmities in the Ordinance and the Act are glaring it would not be open to the President to issue an Order pre venting the detenues from challenging the validity of the said statutory provisions
That in substance is what is described by this Court in Mohan Choudhury s case1 as arguing in the circle
Therefore we are satisfied that the challenge to the validity of the Presidential Order is not well founded
It still remains to consider what are the pleas which are now open to the citizens to take in challenging the legality or the propriety of their detentions either under section 4911b of the Code or article 2261 of the Constitution
We have already seen that the right to move any court which is suspended by article 3591 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 article 3591 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 article 3591 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 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 1  829 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 article 3591 and the Presidential Order
That is another kind of plea which is outside the purview of article 3591
Section 4911 deals with the power of the High Court to issue directions in the nature of the habeas corpus and it covers six categories of cases in which such a direction can be issued
It is only in regard to that class of cases falling under section 4911b where the legality of the deten tion is challenged on grounds which fall under article 3591 and Presidential Order that the bar would operate
In all other cases falling under section 4911 the bar would be inap plicable 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 illustration 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 be barred by the Presi 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
Mr Chatterjee has urged before us that section 32 15 i as well as section 40 of the Act are invalid because they confer oil the rule making authoritypower which is often described as excessive delegation
It istherefore necessary to consider this point
The Actwhich took the place of the Ordinance was passed because it was thought necessary to provide for special measures to ensure the public safety and interest the defence of India and civil defence and for the trial of certain offences and for matters connected therewith
Section 3215i whose validity is challenged purports to confer on the Central Government power to make Rules
Section 31 reads thus  830 The Central Government may by notification in the Official Gazette make such rules as appear to it necessary or expedient for securing the defence of India and civil defence the public safety the maintenance of public order or the efficient conduct of military operations or for maintaining supplies and services essential to the life of the community Section 32 provides that without prejudice to the gene rality of the powers conferred by sub section
1 the rules may provide for and may empower any authority to make orders providing for all or any of the following matters then follow clauses 1 to 57 including several subclauses which provide for the matters that may be covered by the Rules
Amongst them is cl
15i which reads as under Notwithstanding anything in any other law for the time being in force the rules to be made may provide for the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain the authority empowered to detain not being lower in rank than that of a District Magistrate suspects on grounds appearing to that authority to be reasonable of being of hostile origin or of having acted acting being about to act or being likely to act in a manncr prejudicial to the defence of India and civil defence the security of the State the public safety or interest the maintenance of public order India s relations with foreign States the maintenance of peaceful conditions in any part or area of India or the efficient conduct of military operations or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner
 The argument is that in conferring power on the Central Government to make rules the legislature has abdicated its essentially legislative function in favour of the Central Government
In our opinion this argument is wholly un tenable
Right up from the time when this Court dealt with Special References in 1951 In re The etc1 the question about the limits within which 1  831 the legislature can legitimately confer powers on its dele gate has been examined on several occasions and it has been consistently held that what the legislature is prohibited from doing is to delegate its essentially legislative func tion and power
If it appears from the relevant provisions of the impugned statute that powers which have been delegated include powers which can legitimately be regarded as essentially legislative powers then the legislation is bad and it introduces a serious infirmity in the Act itself
On the other hand if the legislature lays down its legislative policy in clear and unambiguous terms and leaves it to the delegate to execute that policy by means of making appropriate rules then such delegation is not impermissible
In Harishanker Bagla vs The State of Madhya Pradesh1 where the validity of section 3 of the Essential Supplies Temporary Powers Act 1946 was challenged this Court in upholding the validity of the impugned statute held that the preamble and the body of the relevant sections of the said Act sufficiently formulate the legislative policy and observed that the ambit and the character of the Act is such that the details of that policy can only be worked out by delegating that power to a subordinate authority within the framework of that policy
The same view has been expressed in Bhatnagars and Co Ltd vs The Union of India 
In the present cases one has merely to read section 31 and the detailed provisions contained in the several clauses of section 32 to be satisfied that the attack against the validity of the said section on the ground of excessive delegation is patently unsustainable
Not only is the legislative policy broadly indicated in the preamble to the Act but the relevant provisions of the impugned section itself give such detailed and specific guidance to the rule making authority that it would be idle to contend that the Act has delegated essentially legislative function to the rule making authority
In our opinion therefore the contention that section 3215i of the Act suffers from the vice of excessive delegation must be rejected
What we have said about this section applies with equal force to section 40
If the impugned sections of the Act are valid it follows that Rule 301b which is challenged by the appellants must be 1 2  832 held to be valid since it is consistent with the operative provisions of the Act and in making it the Central Gov ernment has acted within its delegated authority
This conclusion is of course confined to the challenge of the appellants based on the ground that the impugned provisions and the Rule suffer from the vice of excessive delegation
If we had held that the impugned provision in the Act suffered from the vice of excessive delegation it would have become necessary to consider what the effect of that conclusion would have been on the merits of the controversy between the parties in the present proceedings
If we had reached the conclusion that the impugned sections were invalid because they conferred power on the rule making authority which suffers from the vice of excessive delegation the question would have arisen whether in challenging the validity of the Order of detention passed against him the detenu is enforcing his fundamental right under article 21 of the Constitution
article 21 is one of the articles specified in the Presidential Order and if at any stage of the proceedings the detenu seeks to enforce his right under the said Article that would be barred
It may be urged that if the detenues had been able to show that the impugned provisions of the Act were invalid because they suffered from the infirmity of excessive delegation the next step which they would have been entitled to take was to urge that their detention under such an Act is void under article 21 because the law referred to in that Article must be a valid law and that would raise the question as to whether this latter plea falls within the ambit of article 3591 and the Presidential Order issued under it
We do not propose to express any opinion on this question in these appeals
Since we have held that the Act does not suffer from the vice of excessive delegation as alleged it is unnecessary to pursue the enquiry as to whether if the challenge had been upheld the detenu would have been precluded from urging the said invalidity in support of his plea that his detention was illegal
We must now turn to some other arguments which were urged before us at the hearing of these appeals
Mr Sule contends that part of the Act containing the im 833 pugned sections was a colourable piece of legislation
His argument was that since the No 4 of 1950 was already on the statute book it was hardly necessary for the Legislature to have passed the impugned Act and he urges that since the sole object of the Legislature in passing the impugned Act was to deprive the citizens of their fundamental rights under articles 21 and 22 it should be deemed to be a colourable piece of legislation
The legislative competence of the Parliament to pass this Act is not disputed
Entry No 9 in List I in the Seventh Schedule confers on the Parliament jurisdiction to make laws in regard to the preventive detention for reasons connected with defence foreign affairs or the security of India as well as in regard to persons subjected to such detention
If the Legislature thought that having regard to the grave threat to the security of India posed by the Chinese aggression it was necessary to pass the impugned Act notwithstanding the fact that another Act had already been passed in that behalf it would be difficult to hold that the Legislature had acted malafide and that the Act must therefore be struck down as a colourable exercise of legislative power
It is hardly necessary to emphasise that a plea that an Act passed by a legislature competent to pass it is a colourable piece of legislation cannot succeed on such flimsy grounds
Whether or not it was wise that this part of the Act should have been passed is a matter which is wholly irrelevant in dealing with the plea that the Act is a colourable piece of legislation
In this connection we may refer to another aspect of the same argument which has been pressed before us
Before doing so however let us briefly indicate the effect of the relevant Articles
Article 14 guarantees equality before law
Article 21 provides inter alia that no person shall be deprived of his personal liberty except according to procedure established by law and article 224 5 6  7 lay down Constitutional safeguards for the protection of the citizen whose personal liberty may be affected by an order of detention passed against him
Article 224 requires that an Advisory Board should be constituted and that cases of detenues should be referred to the Advisory Board for its opinion as provided therein
Article 225 834 imposes an obligation on the detaining authority to commu nicate to the detenu grounds on which the order of detention has been passed against him with a view to afford him the earliest opportunity of making a representation against the order
Article 226 provides that in giving notice to the detenu under article 225 facts need not be disclosed which the detaining authority considers to be against public interest to disclose and article 227 prescribes certain conditions which have to be satisfied by any law which the Parliament may pass empowering the detention of citizens
It is thus clear that the Constitution empowers the Parliament to make a law providing for the detention of citizens but this power has to be exercised subject to the mandatory conditions specified in article 224 5  7
It is common ground that the of 1950 complies with these requirements inasmuch as it has enacted sections 7 to 13 in that behalf
It is also clear that these Constitutional safeguards have not been provided for by the impugned Act
The argument is that even if the Parliament thought that during the period of emergency citizens reasonably suspected to be engaged in prejudicial activities should be detained without affording them the benefit of the Con stitutional safeguards guaranteed by article 224 5  7 the Parliament need not have enacted the Act and might well have left the executive to take action under the of 1950 and since Parliament has chosen to pass the Act under challenge and has disregarded the Constitutional provisions of Articles 14 and 22 the exercise of legislative power by Parliament must in the context be held to be a colourable exercise of legislative power
This argument seems to assume that if the Parliament had expected the executive to detain citizens under the of 1950 without giving them the benefit of the Constitutional safeguards prescribed by article 22 their cases could have been covered if a Presidential Order had been issued under article 3591 in respect of such detentions
The question is is this assumption well founded Assuming that the Presidential Order had suspended the citizens  right to move any court for enforcing their fundamental rights under articles 14 21 and 22 and had made 835 the said Order applicable to persons detained under the of 1950 could that Order have effectively prevented the detenues from contending that their detention was illegal and void In such a case if the detenu was detained under the of 1950 and he challenged the validity of his detention on the ground that the relevant provisions of the said Act had not been complied with would his challenge be covered by article 3591 and the Presidential Order issued under it In other words can it be said that in making the said challenge he was enforcing his fundamental rights specified in the Presidential Order If it is held that he was challenging the validity of his detention because the mandatory provisions of the Act had not been complied with his challenge may be outside article 3591 and the Presidential Order
If on the other hand it is held that in substance the challenge is to enforce his aforesaid fundamental rights though he makes the challenge by reference to the relevant statutory provisions of the Act themselves that would have brought Ills challenge within the prohibition of the Presidential Order
Normally as we have already held a challenge against the validity of the detention on the ground that the statutory provisions of the Act under which the detention is ordered have not been complied with would fall outside article 3591 and the Presidential Order but the complication in the hypothetical case under discussion arises because unlike other provisions of the Act the mandatory provisions in question essentially represent the fundamental rights guaranteed by article 22 and it is open to argument that the challenge in question sub stantially seeks to enforce the said fundamental rights
In the context of the alternative argument with which we arc dealing at this stage it is unnecessary for us to decide whether the challengein question would have attracted the provisions ofArt
3591 and the Order or not
We are referringto this matter only for the purpose of showing thatthe Parliament may have thought that the executive would not be able to detain citizens reasonably suspected of prejudicial activities by taking recourse to the of 1950 and that may be the genesis of the impugned Act
If that 836 be so it would not be permissible to suggest that in passing the Act Parliament was acting malafide
It is quite true that if the Act has contravened the citizens  fundamental rights under articles 14 and 22 it would be void and the detentions effected under the relevant provisions of the said Act would be equally inoperative but it must be remembered that it is precisely in this set of circumstances that article 3591 and the Presidential Order issued under it step in and preclude the citizen from enforcing his fundamental rights in any court
The said Article as well as the Presidential Order issued under it indicate that there may be cases in which the specified fundamental rights of citizens have been contravened by executive action and the impugned executive action may be invalid on that account
That is precisely why the said Article and the Presidential Order impose a ban against the investigation of the merits of the challenge during the period prescribed by the Order
Therefore the alternative argument urged in support of the plea that the impugned provisions of the Act amount to a colourable piece of legislation fails
Mr Parulekar who argued his own case before us with remarkable ability contended that a detenu cannot be prevented from disputing the validity of the Ordinance Act and the Rules under the Presidential Order if he did not ask for any consequential relief
His argument was that the prayer made in his petition under section 4911b consists of two parts the first prayer is to declare that the impugned Act and the Order are invalid and the second prayer is that his detention should be held to be illegal and his release should accordingly be ordered
The first prayer says Mr Parulekar cannot fall within the mischief of the Order because he is not enforcing any of his rights when he asks merely for a declaration that the law is invalid and he suggested that even if we take the view that he is precluded from challenging the validity of his detention by virtue of the said Order we should not preclude him from challenging the validity of the law merely with a view to obtain a declaration in that behalf
In our opinion this argument cannot be accepted
What section 3591 purports to do is to empower the President to make an Order by which the right of the detenue to move the Court 437 to challenge the validity of his detention on the ground that any of his fundamental rights specified in the Order have been contravened is suspended and so it would be unreasonable to suggest that what the detenu cannot do in order to secure his release he should be allowed to do merely for the purpose of obtaining an academic declaration
A proceeding taken under section 4911b like a petition filed under article 2261 or article 321 is intended to obtain relief and the relief in such cases means the order for the release of the detenu
If the detenu is prohibited from asking for an order of release on the ground that the challenge to the validity of his order of detention cannot be made during the pendency of the Presidential Order we do not see how it would be open to the same detenu to claim a mere declaration either under s491 Cr
PC or article 2261 or article 321 of the Constitution
We do not think that it was open to the High Court to consider the validity of the impugned Act without relation to the prayer made by the detenu in his petition
The proceedings commenced by the detenu by means of his petition under section 4911b constitute one proceeding and if the sole relief which the detenu seeks to obtain cannot be claimed by him by virtue of the Presidential Order it would be unreasonable to hold that he can claim a different relief VI Z a mere declaration such a relief is clearly outside the purview of the proceedings under section 4911b and articles 2261 and 321
During the course of the hearing of these appeals it has been strenuously pressed before us by Mr Setalvad that the emergency created by the Chinese act of aggression may last long and in consequence the citizens would be precluded from enforcing their fundamental rights specified in the Presidential Order during the period that the Order is in operation
That however has no material bearing on the points with which we are concerned
How long the Proclamation of Emergency should continue and what restrictions should be imposed on the fundamental rights of citizens during the pendency of the emergency are matters which must inevitably be left to the executive because the executive knows the requirements of the situation and the effect of compulsive factors which operate during periods of grave crisis such as our country is facing 838 today
As Lord Wright observed in the case of Liver sidge1 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
If extra ordinary powers are here given they are given because the emergency is extraordinary and are limited to the period of the emergency
 The other aspect of Mr Setalvad s argument was that during Operation the Presidential Order the executive may abuse
Its powers and the citizens would have no remedy
This argument is essentially political and its impact on the constitutional question with which we are concerned is at best indirect
Even so it may be permissible to observe that in a democratic State the effective safeguard against abuse of executive powers whether in peace or in emergency is ultimately to be found in the existence of enlightened vigilant and vocal public opinion
The appellants have also relied upon the made by Lord Atkin in the case of Eshuqbavi Elecko vs Officer Administering the Government of Nigeria 2 In accordance with British jurisprudence said Lord Atkin 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
 These noble sentiments so eloquently expressed by Lord Atkin as well as his classic minority speech in the case of Liversidge evoke a spontaneous response in the minds of all of us who have taken the oath to administer law in accordance with our Constitution and to uphold the fundamental rights of citizens guaranteed by the Constitution
This Court is fully conscious of the solemn duty imposed on it by article 32 which constitutes it the Custodian and Guardian of the citizens  fundamental rights
But we must remember that the democratic faith in the inviolable character of individual liberty and freedom and the majesty of law which sustains it must ultimately be governed by the Constitution itself
The Constitution is the law of laws the paramount 1  2 839 and supreme law of the country
It has itself enshrined the fundamental rights of the citizens in the relevant Articles of Part III and it is no doubt the duty of this Court as the Custodian of those rights to see that they are not contravened contrary to the provisions of the Constitution
But the Constitution itself has made certain emergency provisions in Chapter XVIII with a view to en Able the na tion to meet grave emergencies like the present and so in dealing with the question about the citizen s right to chal lenge the validity of his detention we will have to give effect to the plain words of article 3591 and the Presidential Order issued under it
As we have already indicated the only reasonable construction which can be placed upon article 3591 is to hold that the citizen s right to take any legal proceeding for the enforcement of his fun damental rights which have been specified in the Presi dential Order is suspended during the prescribed period
It is in our opinion plain that the right specified in article 351 includes the relevant right whether it is statutory Constitutional or Constitutionally guaranteed and the words any court refer to all courts of competent jurisdiction and naturally include the Supreme Court and the High Courts
If that be so it would be singularly inappropriate for this Court to entertain an argument which seeks to circumvent this provision by suggesting that the right of the detenu to challenge the legality of his detention under section 4911b does not fall within the scope of the said Article
The said argument concentrates attention on the mere form of the petition and ignores the substance of the matter altogether
In the context we think such a sophisticated approach which leans solely on unrealistic and artificial subtlety is out of place and is illogical unreasonable and unsound
We must therefore hold that the Punjab and the Bombay High Courts were right in coming to the conclusion that the detenues before them were not entitled to contend that the impugned Act and the statutory Rule under which they were deained were void for the reason that they contravened articles 14 21 and 224 5  7
Before we part with these appeals we ought to mention one more point
At the commencement of the hearing of these appeals when Mr Setalvad began to argue about 840 the validity of the impugned provisions of the Act and the Rules the learned Attorney General raised a preliminary contention that logically the appellants should satisfy this Court that it was open to them to move the High Courts on the grounds set out by them before the validity of the said grounds is examined
He suggested that logically the first point to consider would be whether the detenues can challenge the validity of the impugned Act on the ground that they arc illegally detained
If they succeed in showing that the applications made by them under section 4911b are competent and do not fall within the purview of article 3591 and the Presidential Order then the stage would be reached to examine the merits of their complaint that the said statutory provisions are invalid
If however they fail on the first point the second Point would not fall to be considered
We then took the view that since a large number of appeals were placed for hearing before us and they raised important issues of Constitutional Law it would be better to allow Mr Setalvad to argue the case in the manner he thought best and so Mr Setalvad addressed us on the validity of the Act in the first instance and then dealt with the question about the competence of the applications made under section 491 1 b of the Code
In the main the same method was adopted by the learned Advocates who followed Mr Setalvad on the appellants  side
Naturally when the learned Attorney General made his reply he also had to address us on both the points
It appeared that as regards the validity of the impugned provisions of the Act and the Rules he was not in a position to challenge the contention of the appellants that the Act contravened articles 14 21 and 224 5  7
Even so he strongly pressed before us his original contention that we would not reach the stage of expressing our opinion on the validity of the Act if we were to uphold the preliminary objection that the applications made by the detenues were incompetent
In our opinion the learned Attorney General is right when he contends that we should not and cannot pronounce any opinion on the validity of the impugned Act if we come to the conclusion that the bar created by the Presidential Order operates against the detenues in the present cases
In fact that is the course which this Court 841 adopted in dealing with Mohan Choudhury s case1 and we are satisfied that that is the only course which this Court can logically and with propriety adopt
In the result we hold that the Punjab and the Bombay High Court are right in coming to the conclusion that the applications made by the detenues for their release under section 491 1 b Cr P C are incompetent in so far as they seek to challenge the validity of their detentions on the ground that the Act and the Rule under which they are detained suffer from the vice that they contravene the fundamental rights guaranteed by articles 14 21 and 224 5 and 7
Since these appeals were placed before the Special Bench for the decision of the common questions of law raised by them we do not propose to examine the other contentions which each one of the appellants seeks to raise in his appeal
Therefore we direct that all the appeals included in the present group should now be set down before a Constitution Bench and each one of them should be dealt with in accordance with law
SUBBA RAO J I have had the advantage of reading the judgment of my learned brother Gajendragadkar J
I regret my inability to agree with him wholly
I agree with his conclusion in regard to the applicability of article 359 of the Constitution to a right to move a court both under article 321 and article 226 thereof but not with his conclusion in regard to the exercise of power by the High Court under s491 of the Code of Criminal Procedure
These appeals raise questions of great importance touching apparently conflicting but really harmonious concepts of individual liberty and security of the State for the former cannot exist without the latter
My only Justification for a separate treatment of the subject even on questions on which here is general agreement is my conviction that on important questions I should express my thoughts in my own way
Broadly two questions are posed for the consideration of this Court namely i whether section 32 15 i of the Defence of India Act 1962 51 of 1962 hereinafter called the Act and r 301b of the Rules made in exercise of the power conferred under the Act are constitutionally void and ii whether the Order made by the President in exercise of the power conferred on him under article 3591 of the Constitution would be a 1  54 2 section C India64 842 bar against the maintainabilityof any action in any court to question the validity of the detention order made under the Act
I shall deal with the two questions in the said order
Before dealing with the first question it would be conveni ent to quote the impugned provisions of the Act
Section 3  1 The
Central Government may by notification in the Official Gazette make such rules as appear to it necessary or expedient for securing the defence of India and civil defence the public safety the maintenance of public order or the efficient conduct of military operations or for maintaining supplies and services essential to the life of the community
2Without prejudice to the generality of the powers conferred by sub section 1 the rules may provide for and may empower any authority to make orders providing for all or any of the following matters namely
15notwithstanding anything in any other law for the time being in force i the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain the authority empowered to detain not being lower in rank than that of a District Magistrate suspects on grounds appearing to that authority to be reasonable of being of hostile origin or of having acted acting being about to act or being likely to act in a manner prejudical to the defence of India and civil defence the security of the State the public safety or interest the maintenance of public order India s relations with foreign States the maintenance of peaceful conditions in any part or area of India or the efficient conduct of military operations or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner     Rule 30 1 The Central Government or the State Government if it is satisfied with respect to any particular person that with a view to preventing him from 843 acting in any manner prejudicial to the defence of India and civil defence the public safety the maintenance of public order India s relations with foreign powers the maintenance of peaceful conditions in any part of India the efficient conduct of military operations or the maintenance of supplies and services essential to the life of the community it is necessary so to do may make an order     bdirecting that he be detained
Rule30A 2 Every detention order shall be reviewedin accordance with the provisions hereinafter contained
3A detention order made by the Central Government Or the State Government or the Administrator shall be reviewed by the Central Government or the State Government or the Administrator as the case may be
4A detention order made by an officer who shall in no case be lower in rank than that of a District Magistrate empowered by the State Government or the Administrator shall be reviewed  a in the case of an order made by an officer empowered by the State Government by a reviewing authority consisting of any such two officers from among the following officers of that Government that is to say the Chief Secretary a mem ber of the Board of Revenue a Financial Commissioner and a Commissioner of a Division as may be specified by that Government by notification in the Official Gazette  b in the case of an order made by an officer empowered by the Administrator by the Administrator himself
Under the said provisions the Central Government or the State Government or an officer on whom the power to detain is delegated can direct the detention of any person if the detaining authority is satisfied that his detention is necessary for one or other of the reasons mentioned in r 30
No grounds of detention need be served upon the detenu no opportunity need be given to him to make representations or establish his innocence
The period of detention can be indefinite
The Central Government or the 844 State Government or the Administrator of a Union Territory as the case may be is authorised to review the order of detention made by them
So too a detention order made by an officer empowered by the State Government in that behalf can be reviewed by one or other of the officers mentioned in r 30A 4 It is contended that the said provisions infringe article 224 and 5 of the Constitution and therefore void
This Court in Deepchand vs The State of Uttar Pradesh1 laid down the effect of a law made in infringement of fundamental rights and observed  The result of the aforesaid discussion may be summarized in the following propositions i whether the Constitution affirmatively confers powers on the legislature to make laws subject wise or negatively prohibits it from infringing any fundamental right they represent only two aspects of want of legislative power ii the Constitution in express terms makes the power of a legislature to make laws in regard to the entries in the Lists of the Seventh Schedule subject to the other provisions of the Constituion and thereby circumscribes or reduces the said power by the limitations laid down in Part III of the Constitution iii it follows from the premises that a law made in derogation or in excess of that power would be ab initio void wholly or to the extent of the contravention as the case may be     This view was accepted by a later decision of this Court in Mahandra Lal vs State of UP2
It is therefore manifest that if the Act and the rules framed thereunder infringed the provisions of article 224 and 5 of the Constitution they would be ab initio void they would be stillborn law and any detention made thereunder would be an illegal detention
Articles 21 and 22 enshrine fundamental rights relating to personal liberty
Clauses 4 to 6 of article 22 specifically deal with preventive detention
This Court has held in A K 
Gopalan vs State of Madras3 that the word law in article 21 means State made law or enacted law and that article 22 lays down only the minimum procedural conditions which such a 1 1959 Supp 2 SCR 8 40
2   3  845 a statutory law cannot infringe in the matter of pre ventive detention
The minimum conditions arc as follows 1 Parliament may make a law prescribing the maximum period for which any person may be detained 2 he shall not be detained for a period more than 3 months unless an Advisory Board constituted for that purpose reports before the expiry of three months that there is sufficient cause for detention  and 3 the authority making the order shall communicate to such person the grounds on which the order has been made and afford him the earliest opportunity of making representations against the order
At the same time cl
7 enables Parliament to make a law prescribing the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months without obtaining the opinion of the Advisory Board
Clause 6 of article 22 enables an authority not to disclose facts to the detenu which it considers to be against the public interest to disclose
While cls
4 to 6 of article 22 provide for the minimum safeguards for a dctenu in the matter of preventive detention cl
7 removes them enabling Parliament to make a law for preventive detention ignoring practically the said safeguards
The only outstanding safeguard therefore is that Parliament can only make a law in derogation of the said safeguards by defining the circumstances under which and the class or classes of cases in which a person may be so detained
Parliament did not make such a law
Neither the Act nor the rules made thereunder satisfy the conditions laid down in that clause
The Act and the rules do not provide for the maximum period of detention for the communication to the detenu of the grounds of detention for affording him an opportunity of making representations against his detention or for an Advisory Board consisting of persons with the requisite qualifications
The power to review given to the detaining authority cannot conceivably satisfy the condition of an Advisory Board provided for under cl
4a of article 22
It is therefore a clear case of Parliament making a law in direct infringment of the relevant provisions of article 22 of the Constitution and therefore the law so made is void under the said Article 846 In this context a relevant aspect of the argument advanced by the learned Attorney General may be noticed
He contends that on a true construction of article 3591 of the Constitution if the requisite order is made by the President a law can be made in infringement of article 22 of the Constitution
Under article 359 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 shall remain suspended for the period during which a Proclamation of Emergency is in force or for such shorter period as may be specified in the order
It is contended that when remedy is suspended in respect of infringement of article 22 the right thereunder also falls with it
It is said that right and remedy are reciprocal and if there cannot be a right without a remedy there cannot also be a remedy without a right
In Salmond on jurisprudence 11th Edn the following interesting passage is found at p 531 under the heading Ubi jus Ibi Remedium Whenever there is a right there should also be an action for its enforcement
That is to say the substantive law should determine the scope of the law of procedure and not vice versa
Legal procedure should be sufficiently elastic and comprehensive to afford the requisite means for the protection of all rights which the substantive law sees fit to recognize
In early systems this is far from being the case
We there find remedies and forms of action determining rights than rights determining remedies
The maxim of primitive law is rather Ubi remedium ibi jus
 I understand this passage to mean that a right pertains to the substantive law and the remedy to procedural law that where a right is provided by a statute a remedy though not expressly provided for may necessarily be implied
But the converse though obtained in primitive law cannot be invoked in modern times
To put it in other words the suspension of a remedy cannot abrogate the right itself
Indeed a comparative study of articles 358 and 359 of the Constitution indicates that it could not have been the intention of the makers of the Constitution for article 358 expressly suspends the right whereas article 359 suspends the remedy
If the contention of the learned Attorney 847 General be accepted both have the same effect if that was the intention of the makers of the Constitution they would not have expressed themselves in different ways in the two articles
Where they intended to suspend the right they expressly said so and where they intended only to suspend the remedy they stated so
We cannot therefore accept this contention
At this stage I may also notice the argument of the learned Attorney General that article 359 by enabling the President to suspend the right to move for the enforcement of the fundamental rights mentioned therein impliedly permitted Parliament to make laws in violation of those fundamental rights in respect whereof the right to move the court is suspended
I cannot appreciate this argument
It is one thing to suggest that in view of the amplitude of the phraseology used in article 359 the right to move for the enforcement of fundamental rights infringed by a void law even deliberately made by Parliament is suspended but it is a different thing to visualize a situation when the Constitution permitted Parliament under the shelter of executive fiat to make void laws
Indeed a comparison of article 358 and article 359 I shall deal with them in detail later on indicates the contrary
I cannot for a moment attribute to the august body the Parliament the intention to make solemnly void laws
It may have made the present impugned Act bona fide thinking that it is sanctioned by the provisions of the Constitution
Whatever it may be the result is we have now a void Act on the statute book and under that Act the appellants before us have been detained illegally
To use the felicitous language of Lord Atkin in this country amid the clash of arms the laws are not silent they may be chanced but they speak the same language in war as in peace
The tendency to ignore the rule of law is contagious and if our Parliament which unwittingly made a void law not only allows it to remain on the statute book but also permits it to be administered by the executive the contagion may spread to the people and the habit of lawlessness like other habits dies hard
Though it is not my province I venture to suggest if I may that the Act can be amended in conformity with our Constitution without it losing its effectiveness
This leads us to the question whether the appellants 948 who are illegally detained can move this Court under article 32 of the Constitution or the High Court under article 226 thereof or under section 491 of the Code of Criminal Procedure hereinafter called the Code
It would be convenient at this stage to read the relevant provisions of the Constitution
Article 321 The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
    3Without prejudice to the powers conferred on the Supreme Court by clauses 1 and 2 Parliament may by law empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause 2
4The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution
Article
226 1 Notwithstanding anything in article 32 every High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases any Government within those territories directions orders or writs including writs in the nature of habeas corpus mandamus prohibition  quo warranto and certiorari or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose
2The power conferred on a High Court by clause 1 shall not be in derogation of the power conferred on the Supreme Court by clause 2 of article 32
Article 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 the 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 849 except as respects things done or omitted to be done before the law so ceases to have effect
Article 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 in force or for such shorter period as may be specified in the order
Article 33 confers power on Parliament to modify the rights conferred by Part III in their application to Armed Forces or the Forces charged with the maintenance of public order article 34 enables Parliament to impose restrictions an the rights conferred by Part III while martial law is in force in any area
The contention of learned counsel for the appellants on the construction of the said provisions may be classified under the following heads 1 article 358 permits the State to make laws only in infringement of article 19 of the Constitution and article 359 suspends only the right to move the enforcement of the fundamental rights specified in the President s Order and therefore article 359 cannot be so construed as to enlarge the legislative power of Parliament beyond the limits sanctioned by article 358 and therefore it should be confined only to executive infringements of the said rights
2 Article 359 does not permit the executive to commit fraud on the Constitution by doing indirectly what Parliament cannot do directly under article 358 and article 132 of the Constitution
3 For invoking article 359 two conditions must be complied with namely i the party shall have a right to move any court and ii only for the enforcement of the rights conferred by Part III
Such a right to move for such a relief is expressly conferred by the Constitution under article 32
Therefore the President s order under article 359 would only suspend the right to move under article 32 and not for approaching the Court under article 226 of the Constitution
In any view those words are inappropriate to a pre existing statutory right under section 491 of the Code
850 To appreciate the contentions from a correct perspective it is necessary at the outset to notice the nature of the fundamental rights enshrined in the Constitution and the remedy or remedies provided for their enforcement
It would be pedantic to go into the question whether fundamental rights provided for under our Constitution are natural rights or primordial rights  whatever their origin might have been and from whatever source they might have been extracted they are enshrined in our Constitution in Part III and described as fundamental rights
The constitution declared under article 132 that the State shall not make any law taking away or abridging the said rights and any law made in contravention of this clause shall be void to the extent of the contravention
After declaring such a law void it proceeds to provide for the mode of enforcement of the said rights
Article 321 makes the right to move the Supreme Court by appropriate proceedings for the enforcement of the said rights a guaranteed right
Appropriate proceedings are described in cl
2 thereof that is to say a person can move the said Court for directions orders or writs in the nature described thereunder for the enforcement of any of the said rights
The right to move therefore is regulated by the procedure prescribed thereunder
Article 226 though it does not find a place in Part III of the Constitution confers a power on every High Court throughout the territories in relation to which it exercises jurisdiction to issue such directions orders or writs in the nature described thereunder for the enforcement of any of the rights conferred by Part III
There is a material difference between article 32 and article 226 of the Constitution namely while in article 32 the right to move the court is guaranteed under article 226 no such guarantee is given
But a fair construction of the provisions of article 226 indicates that the right to move though not guaranteed is necessarily implied therein
As I have pointed out under article 32 the right to move the Court is given a practical content by the provision indicating the different modes open to the person who has the said right to approach the Supreme Court
Article 226 employs the same procedure for approaching the High Court and that procedure must necessarily be for the exercise of the right to move that 851 court
When a power is conferred upon the High Court and a procedure is prescribed for a party to approach that court it is reasonable to imply that the person has a right to move that court in the manner prescribed thereunder
The only difference between article 32 and article 226 is that the Supreme Court cannot say if it is moved in the manner prescribed that it will not decide on merits but the High Court in exercise of its jurisdiction can do so
The decision on merits is left to its discretion though the exercise of that discretion is regulated by convention and precedent
Further article 323 also enables Parliament to make a law empowering any other court to exercise within the local limits of itsjurisdiction all or any of the powers exercisable by theSupreme Court under cl
2 thereof
One thing to benoticed is that Parliament can only empower any othercourt to exercise any of the powers exercisable under cl2  it cannot confer the guaranteed right mentioned in cl
1 on any person to move that court
That is to say the court or courts to which such powers are given would be in the same position as the High Court in respect of the enforcement of the fundamental rights
To put it shortly no person will have a guaranteed right to move any such other court for the enforcement of fundamental rights
A discretionary jurisdiction similar to that of the High Court can only be conferred on them
For the same reason given in the case of the High Court an aggrieved party will also have a right to move those courts in the manner prescribed
This analysis leads us to the following position Under the Constitution every person has a right to move for the enforcement of a fundamental right the Supreme Court the High Courts or any other court or courts constituted by Parliament by law in the manner prescribed ie by one or other of the procedural writs or directions or orders described thereunder
With this background let me have a close look at the provisions of article 359
The expressions used in article 359 are clear and unambiguous
Three expressions stand out in bold relief namely i right to move ii any Court and iii for the enforcement of such of the rights conferred by Part III
Any Court implies more 852 than one court but it cannot obviously be any court in India for it must be a court where a person has a right to move for the enforcement of the fundamental rights
It can therefore be only the Supreme Court High Court or the courts or courts constituted by Parliament under article 323
If the contention of learned counsel for the appellants be accepted the expression court should be confined to the Supreme Court
But the Article does not say either Supreme Court or that the right to move is the guaranteed one under article 321
The next question is what do the words right to move mean The right to move is qualified by the expression for the enforcement of such of the rights conferred by Part 111
Therefore the right to move must be a right to move the Supreme Court or the High Court in the manner prescribed by article 322 or article 2261 of the Constitution for the enforcement of the fundamental rights
The words in the second limb of the Article viz that all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended only relate to the proceedings instituted in exercise of the said right  they do not throw any light on the scope of the right to move 
This construction gives full meaning to every expression used in the Article
if so construed it can only mean that the temporary bar that can be imposed by an order of the President is not confined only to the guaranteed right of a person to move the Supreme Court for the enforcement of his fundamental rights but also extends to the right of a person to move the High Court or the Court or Courts constituted by Parliament for the enforcement of such of the fundamental rights as mentioned in the order
I would therefore hold that the President s order under article 359 suspending the right to move any court in respect of specified fundamental rights includes not only the right to move under article 32 but also that under article 226
The more difficult question is whether article 359 can be so construed as to empower the President to suspend all actions which a person may take under a statute or common law if he seeks thereby to protect his liberty against unlawful encroachment by State or its officers
To put it in other words can a person who is illegally 853 detained under a void law approach the High Court under section 491 of the Code or file a suit in a civil court for damages for illegal confinement or take any other legal proceedings open to him Learned Attorney General contends that any court in article 359 means any court in India and that the expression enforcement of fundamental rights implies any relief asked for by a party if the granting of such relief involves directly or indirectly a decision on the question whether any of the fundamental rights specified in the President s order has been infringed
This argument if I may say so completely ignores the scheme of the Constitution
Under the Constitution a person may have three kinds of rights namely i fundamental rights ii constitutional rights and iii statutory or common law rights
Under article 321 a person has a fundamental right to move the Supreme Court for enforcement of his fundamental rights under article 226 a person has a constitutional right to move the High Court for the enforcement of the said rights
Parliament by law in exercise of its powers conferred on it under article 245 may confer a right on a person to move any court for a relief wider in scope than that provided by article 32 or article 226 of the Constitution
Though Parliament may not have power except in the cases specified to circumscribe the fundamental rights enshrined in Part III it can certainly make a law enlarging the content of the substantive and procedural rights of parties beyond those conferred by Part III
Under this category there may also be laws made by competent authority before the commencement of the Constitution but continued under article 372 which do not any way infringe the fundamental rights created by the Constitution
Section 491 of the Code is one of the pre Constitution statutory provisions continued under article 372 of the Constitution
It does not in terms posit any right to move the High Court for the enforcement of fundamental rights
Therefore the argument of the learned Attorney General involves considerable strain on the express language of article 359 for he in effect asks us to equate the expression a right to move for the enforcement of fundamental rights with any relief asked for in any proceedings in any court whether initiated at the instance of the party affected or not 854 or whether started suo motu by the court if it involves a decision on the question whether a particular law was void for the reason that it infringed the fundamental rights mentioned in the President s order
In support of this contention he presses on us to hold that in days of stress and strain ie when there is a threat of war and conse quently an emergency is declared a court has to adopt the principle of strained construction which will achieve the object behind article 359 of the Constitution and the order issued by the President
I shall briefly examine the decisions cited by him to ascertain whether any such novel doctrine of construction of statutes exists
Rex vs Halliday1 is a decision of the House of Lords made in 1917 ie during the First World War
Regulation 14B of the Defence of the Realm Consolidation Regulation 1914 empowered the Secretary of State to order the internment of any person of hostile origin or associations where on the recommendation of a competent naval or military authority it appeared to him expedient for securing the public safety or the defence of the realm
This regulation was authorized by the Defence of the Realm Consolidation Act 1914 section 1 sub section 1
The House of Lords by a majority held that the Act conferred upon  the King In Council power during the continuance of the war to issue regulations for securing the public safety and the defence of the realm and there fore the regulation was valid
It was urged there that no such restraint of personal liberty should be imposed except as a result of judicial enquiry
It was also contended that if the Legislature intended to interfere with personal liberty it should have provided for suspending the right of the subject as to the writ of heabeas corpus
The argument was negatived
Lord Atkin observed The subject retains every right which those statutes confer upon him to have tested and determined in 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
If the Legislature chooses to enact that he can be deprived of his liberty and incarcerated or 1   272 855 interned for certain things for which he could not have been heretofore incarcerated or interned that enactment and the orders made under it if intra vires do not infringe upon the Habeas Corpus Acts in any way whatever to take away any rights conferred by Magna Charta for the simple reason that the Act and these Orders become part of the law of the land
 This decision does not lay down any new rule of cons truction
Parliament is supreme in England
It its wisdom it did not take away the habeas corpus but empowered the executive to issue regulations for public safety and defence of the nation
The regulation made did not exceed the power conferred by the Parliament
The House of Lords held that the detention was in accordance with law
Nor does the controversial decision in Liverside vs Sir John Anderson1 which was the subject of servere criticism in later years lay down any such new rule of construction
There the Secretary of State acting in good faith under reg
18B of the Defence General Regulations 1939 made an order in which he recited that he bad reasonable cause to believe a person to be of hostile associations and that by reason thereof it was necessary to exercise control over him and directed that that person be detained
The validity of the detention turned upon the construction of the express provisions of reg
18B of the said Regulations
In that regulation the expression used was reasonable cause to believe any person to be of hostile origin
The House of Lords by a majority held that the expression meant that the Secretary of State thinks fit to be reasonable
There was a powerful dissent by Lord Atkin on the question of construction
With the correctness of the construction put upon by the majority on the said provision we are not concerned  but none of the learned law Lords laid down in their speeches any new rule of construction peculiar to war conditions
Viscount Maugham observed  My Lords I think we should approach the construction of reg
18B of the Defence General Regulations without any general presumption as to its 1   219 251
856 meaning except the universal presumption applicable to Orders in Council and other like instruments that if there is a reasonable doubt as to the meaning of the words used we should prefer a construction which will carry into effect the plain intention of those responsible for the Order in Council rather than one which will defeat that intention Lord Atkin in his dissenting judgment protested against the strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister
Then he proceeded to observe  The words have only one meaning
They arc used with that meaning in statements of the common law and in statutes
They have never been used in the sense now imputed to them These observations by the dissenting Lord may at the most indicate that the majority in fact put a strained cons truction on the express words used in the regulation but they do not show that they have laid down any such rule of construction
This is made clear by Lord Macmillan when he stated In the first place it is important to have in mind that the regulation in question is a war measure
This is not to say that the courts ought to adopt in wartime canons of construction different from those Which 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 matter the contrary
But in a time of emergency when the life of the whole nation is at stake it may well be that a regulation for the defence of the realm may quite properly have a meaning which because of its drastic invasion of the liberty of the subject the courts would be slow to attribute to a peace time measure
The purpose of the regulation is to ensure public safety and it is right so to interpret emergency legislation as to promote rather than to defeat its efficacy for the defence of the realm
That is in accordance with a general rule applicable to the interpretation of 857 all statutes or statutory regulations in peace time as well as in war time
 These observations should be understood in the background of the earlier observation  I do not agree that the critical phrase in the context in which I find it is susceptible only of one meaning namely that for which the appellant contends
Were it so it would be strange that several learned judges should have found it to possess quite a different meaning This judgment therefore is no authority for the position for which it is relied upon
The decision in substance says that the rule of construction of a statute is the same both in peace time and in war time and that when there is an ambiguity in the expressions used the court may give such meaning to the words used which are capable of bearing that meaning as would promote rather than defeat the object of the legislation
Indeed the Privy Council in Nakkuda Ali vs Jayaratna1 confined the interpretation put upon reg
18B of the Defence General Regulations 1939 by a majority of the House of Lords to the particular cricumstances of that case and they did not accept that construction when similar words were used in the Regulation 62 of the Defence Control of Textiles Regulations 1945
I cannot therefore hold that the said decisions suggested a new rule of construction peculiar to war measures
The rules of construction are the same in war time as well as in peace time
The fundamental rule of construction is that the courts have to find out the expressed intention of the Legislature from the words of the enactment itself
Where the language is unambiguous no more is necessary than to expound those words in their natural and ordinary sense
But where the words are ambiguous and reasonably capable of bearing two meanings the court may be justified in adopting that meaning which would further the intention of the Legislature rather than that which would defeat it
In the present case we are not dealing with a war measure but a constitutional provision which was designed to govern the affairs of our country for all times so 1 LR 1 55 2 S C India64
858 long the Constitution remains in force  and it cannot certainly be strained to meet a passing phase in a country s life
A strained construction put upon a statutory provison to meet a particular emergency may be rectified by a subsequent enactment
But such a construction put upon a constitutional provision might entail serious consequences
Even if Liversidge s case1 had laid down a new rule of construction that construction cannot be invoked in the case of a constitutional provision
In Gibbons vs Ogden2 the following rule of construction of a constitutional provision is stated  That which the words declare is the meaning of an instrument  and neither Courts nor legislatures have the right to add or to take away from that meaning
This is true of every instrument but when we arc speaking of the most solemn and deliberate of all human writings those which ordain the fundamental law of states the rule rises to a very high degree of significance
It must  be very plain nay absolutely certain that the people did not intend what the language they have employed in its natural signifi cation imports before a Court will feel itself at liberty to depart from the plain reading of a constitutional pro vision
 No doubt a constitution should receive a fair liberal and progressive construction so that the true objects of the instrument may be promoted  but such a construction could not do violence to the natural meaning of the words used in particular provision of the Constitution
The relevant provisions of section 491 of the Code read 1 Any High Court may whenever it thinks fit direct a that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law  b that a person illegally or improperly detained in public or private custody within such limits be set at liberty     Bearing in mind the said rules of construction I ask myself the question whether the exercise of the power un 1  2  859 der section 491 of the
Code can be equated with a right to move the High Court to enforce such of the fundamental rights conferred by Part III of the Constitution as may be mentioned in the order of the President
It is necessary to ascertain the correct scope of the section to answer the question raised before us
The section is framed in wide terms and a discretionary power is conferred on the High Court to direct one or other of the things mentioned therein whenever it thinks fit
Unlike article 32 and article 226 the exercise of the power is not channelled through well recognized procedural writs or orders
With the result the technicalities of such procedural writs do not govern or circumscribe the court s discretion
A short history of this section reinforces the said view
Originally the Supreme Courts in India purported to exercise the power to issue a writ of habeas corpus which the Kings  Bench Division in England exercised
In 1861 Parliament passed Acts 24 25 Vict
104 authorising the establishment of High Courts of judicature in India
The Letters Patents issued under that Act in 1865 were expressly made subject to the legislative powers of the Governor General in Council
The courts were given the same jurisdiction power and authority which the Supreme Courts possessed but subject to the legislative power of the Governor General in Council
Pursuant to the power so conferred the Governor General in Council passed successive Codes of Criminal Procedure in the years 1872 1875 1882and1898 and in 1923 by the Criminal Law Amendment Act some of the provisions of the Code of 1898 were amended
The High Courts Act of 1861 authorized the Legislature if it thought fit to take away the powers which the High Courts exercised as successor to the Supreme Courts and Acts of Legislatures passed in 1872 and subsequent years had taken away the power of the High Courts to issue prerogative writs  and instead a statutory power precisely defined was conferred upon the High Courts
That statutory power underwent various changes and finally took the form of section 491 of the Code as at present it stands
The attempt to resuscitate the prerogative writs was rejected by the Calcutta High Court in Girindra Nath Banerjee vs Birendra Nath Pal1 and 1 Cal
727 860 by the Madras High Court in District Magistrate Trivandrum vs Mammen Mappillai1
The Privy Council in Matten vs District Magistrate Trivandrum2 approved the said decisions and held that the said Act
 have taken away the power of the High Courts to issue prerogative writs and thereafter the only power left in the High Court was that conferred by the statute
By reason of article 372 of the Constitution the Code of Criminal Procedure including section 491 thereof continued to be in force until altered repealed or amended by the competent Legislature or other competent authority
Article 225 of the Constitution expressly preserved the High Courts  powers and jurisdiction subject to other provisions thereof
Admittedly Parliament has not made any law repealing section 491 of the Code
The statutory power conferred on the High Courts under that section is not inconsistent either article 32 or with article 226 or with any other Article in Part III or any other Chapter of the Constitution
So it cannot be held that section 491 of the Code has been impliedly superseded by article 226 even to the extent it empowers the High Court to give relief to persons illegally detained by the State
Now what is the scope of that section Though section 491 of the Code is remedial in form it postulates the existence of the substantive right
In India as in England the rule of law was the accepted principle
No person can be deprived of his liberty except in the manner prescribed by the law of the land
If a person is illegally or improperly detained in violation of the law of the land the High Court can direct his release whenever it thinks fit so to do
The section prima facie does not predicate a formal application  nor does it insist that any particular person shall approach it
The phraseology used is wide enough for the exercise of the power suo motu by the High Court
Nor does the section introduce an antithesis between the exercise of jurisdiction on application and that exercised suo motu  that is to say even if an application was filed before the High Court and for one reason or other no orders could be passed thereon either because of procedural defect or because it was not pressed 1 LIR 2 LR 1939 66 IA 222
861 nothing prevents the High Court from acting suo motu on the basis of the information brought to its notice
It is said that various High Courts framed rules regulating the procedure of the respective High Courts but that fact is not much relevance in the matter of construing the section
Shortly stated the High Court is given an absolute discretion to direct a person who has been illegally detained to be released whenever that fact is brought to its notice through whatever source it may be
This juris diction existed long before the Constitution was made and long before the fundamental rights were conferred upon the people under the Constitution
The rights substantive as well as procedural conferred under Part III and article 226 on the one hand and under section 491 of the Code on the other are different
Under articles 32 and 226 an affected party can approach the Supreme Court or the High Court as the case may be only in the manner prescribed under article 322 or article 226 ie by way of writs and orders mentioned therein  he must ask the court for the enforcement of this fundamental right
The relief implies that he must establish that he has a fundamental right that his fundamental right has been infringed by the State and therefore the Court should give the appropriate relief for the enforcement of that right
Both the right as well as the procedure are the creatures of the Constitution
Whereas section 491 of the Code assumes the existence of the rule of law and confers a power on the High Court to direct persons in illegal detention to be set at liberty
It is not bound by any technical procedures envisaged by the Constitution
If a person approaches the High Court alleging that he or some other person has been illegally detained the Court calls upon the detaining authority to sustain the validity of the action
The onus of proof lies on the custodian to establish that the person is detained under a legal process  but if it fails to establish that the person is detained under law the said person may be released
It is true that the detaining authority will have to satisfy the court that the law under which the detention is made is a valid one
It may also be true that in scrutinizing the validity of that law the court has to go into the question whether the law offends any of the fundamental rights mentioned 862 in Part III of the Constitution
But that circumstance does not by any process of involved reasoning make the said proceeding one initiated in exercise of the right to move the High Court for the enforcement of the petitioner s fundamental right
The distinction between the two lies in the fact that one is an enforcement of a petitioner s fundamental right and the other a decision on the unconstitutionality of a law because of its infringement of fundamental rights generally
Further the right and the relief have a technical and specific significance given to them by the Constitution
They cannot be equated with the mode of approach to the High Court under section 491 of the Code or with the expressionwhenever it thinks fit confers an absolute discretionon the court to exercise its power thereunder or not todo so having regard to the circumstances of each case
While the word may used in a statute was sometimes construed as imposing a duty on the authority concerned on whom a power is conferred to exercise the
same if the circumstances necessitated its exercise the expression whenever it thinks fit does Rot warrant any such limitation on its absolute discretion
Though ordi narily a High Court may safely be relied upon to exercise its powers when the liberty of a citizen is illegally violated by any authority the said unlimited discretion certainly enables it in extraordinary circumstances to refuse to come to his rescue
The absolute discretionary jurisdiction conferred under section 491 of the Code cannot be put on a par with the jurisdiction conferred under article 226 of the Constitution hedged in by constitutional limitations  A brief reference to decided cases on the scope of section 491 of the Code will make my meaning clear
In Alam Khan vs The Crown1 the Full Bench of the Lahore High Court has defined the scope of section 491 of the Code
Ram Lall J who spoke for the majority stated after quoting the relevant part of the section The language of the section places no limit on the class of person or persons who can move a High Court with relation to a person in custody and if the 1 Lahore 274 303
863 High Court on hearing the petition thinks fit
to do so may make an order that he be dealt with according to law
 In Ramji Lal vs The Crown1 a Full Bench decision of the East Punjab High Court Mahajan J as he then was defined the wide scope of the section thus Whatever may be the state of English law on the subject so far as section 491 of the Criminal Procedure Code is concerned it has been very widely worded and confers Jurisdiction on the Court to issue directions whenever it thinks fit
The Court may be moved by the prisoner or by some relation of his or it may act suo motu if it acquires knowledge that a certain person has been illegally detained
The mode and manner in which the judge has to be satisfied cannot affect the Jurisdiction conferred on him under section 491 of the Criminal Procedure Code
 In King Emperor vs Vimlabai Deshpande2 a police officer made an arrest of the respondents under sub rule I of r 129 of the Defence of India Rules 1939 which read  Any police officer  may arrest without warrant any person whom he reasonably suspects of having acted  a in a manner prejudicial to the public safety or to the efficient prosecution of the war  The Judicial Committee held that the burden was upon the police officer to prove to the satisfaction of a court before whom the arrest was challenged that he had reasonable grounds of suspicion and that if he failed to discharge that burden an order made by the Provincial Government under sub rule 4 of r 129 for the temporary custody of the detenu was invalid
As the police officer failed to discharge the onus the Privy Council held that the High Court was right in ordering the release of the person from custody under section 491 of the Code of Criminal Procedure
This shows that when a person is detained by a police officer the burden of establishing that the detention is valid is on him
These authorities well establish that section 491 of the Code does not contemplate any right to move a court by any affected party but the court can exercise the 1 ILR 1949
II EP 28 54
2 1946 LR 73 IA 144
864 statutory power whenever it thinks fit if the fact of illegal detention of a person is brought to its notice
The problem may be approached from a slightly different perspective
Three questions may be posed namely 1 has any person the right to move the High Court under section 491 of the Code to enforce his fundamental right 2 would it be necessary for a person detained or any other on his behalf to allege that the detenu has a fundamental right and that it has been infringed by State action and seek a relief for enforcement of that right 3 would it be obligatory on the Court to enforce the right if the said right had been established All the questions must be answered in the negative
Under section 491 of the Code there is neither a right in the person detained to move the High Court for the enforcement of the fundamental right nor there is an obligation on the part of the High Court to give the said relief
It is only a discretionary jurisdiction conceived as a check on arbitrary action
There is another aspect of the question
Article 359 has nothing to do with statutory powers conferred by Parliament
Article 359 expressly deals with the constitutional right to move a court and the constitutional enforcement of that right
So far as ordinary laws are concerned Parliament can always amend the law having regard to the circumstances obtaining at a particular point of time  for instance Parliament could have amended section 491 of the Code by repealing that section altogether or by suitably amending it
Briefly stated article 359 provides for the suspension of some constitutional rights in the manner prescribed thereunder
The statutory rights are left to be dealt with by the appropriate Legislature in exercise of the powers conferred on them
The argument that the intention of the makers of the Constitution in enacting article 359 would be defeated if section 491 of the Code was salvaged does not appeal to me
If Parliament had amended section 491 of the Code which it should have done if it intended to do so this alleged anomaly pointed outby the learned Attorney General could not have arisen
I would therefore hold that the expression rightto move any Court for the enforcement of such of the rights conferred by Part III could legitimately refer 865 only to the right to move under article 32 or article 226 of the Constitution for the said specific relief and could not be applied without doing violence to the language used to the exercise of the statutory power conferred on the High Courts under section 491 of the Code
If that be so the expression all proceedings pending in any Court for the enforcement of the rights used in the second limb of article 359 must also necessarily refer to proceedings initiated in exercise of the right to move envisaged in the first limb of the article
I shall now proceed to consider some of the minor points raised at the Bar
Another argument advanced on behalf of the respondents may also be briefly noticed
It is said that while article 358 maintains the legislative incompetency to make laws in derogation of fundamental rights other than those enshrined in article 19 Art 359 enables the President by an indirect process to enlarge the said legislative competency and therefore article 359 must be so read as to confine its scope only to executive acts
I cannot agree
Article 359 does not ex facie enlarge the legislative competency of Parliament or a State Legislature
It does not enable them to make laws during the period covered by the order of the President infringing the fundamental rights mentioned therein
It does not empower the Legislatures to make void laws  it only enables the President to suspend the right to move the Court during the period indicated in his order
Once that period expires the affected party can move the Court in the manner prescribed by the Constitution
Despite article 358 it may happen that void laws are made and executive actions are taken inadvertently or otherwise  and article 359 is really intended to put off the enforcement of the rights of the people affected by those laws and actions till the expiry of the President s order
The invalidity of the argument would be clear if it was borne in mind that article 358 also saved executive acts infringing article 19 but nonetheless article 359 gave protection against the exercise of the right to move any court in respect of such acts not saved by article 358
If the infringement of fundamental rights by executive action not saved by article 358 could not be a basis for the exercise of a right to move during the period of suspension 866 by the same token laws not saved by article 358 could not equally be the basis for such an action during the said
period
Be it as it may the phraseology of article 359 is wide enough to comprehend laws made in violation of the specified fundamental rights
Another argument advanced is while article 358 read with article 131 and 2 maintained the constitutional position that all laws infringing fundamental rights other than that enshrined in article 19 would be void during the emergency the President by issuing the order he did indirectly in effect and substance validated the laws infringing Arts14 21 and 22 and therefore the issuing of the said order must be held to be a fraud on hi s powers
This argument has no merits
It is based upon a misapprehension of the doctrine of fraud on powers
In the context of the application of the doctrine to a statutory law this Court observed in Gullapally Nageswara Rao vs Andhra Pradesh Road Transport Corporation1 thus  The legislature can only make laws within its legislative competence
Its legislative field may be circumscribed by specific legislative entries or limited by fundamental rights created by the Constitution
The legislature can not overstep the field of its competency directly or indirectly
The Court will scrutinize the law to ascertain whether the legislature by device purports to make a law which though in form appears to be within its sphere in effect and substance reaches beyond it
If in fact it has power to make the law its motives in making the law are irrelevant
 To the same effect are the observations in Gajapati Narayan Deo vs The State of Orissa2
On the same analogy the President cannot overstep the limits of his power defined under article 359 of the Constitution
So long as he does not exceed his power the effect of his order made within bounds could not conceivably sustain the plea of fraud on powers
Fraud on power implies that a power not conferred is exercised under the cloak of a power conferred
But if an act can legitimately be referred to a power conferred the intention of the person exercising 1 1959 Supp 1 SCR 319 329
2   867 the power or the effect of his exercise of the power is ir relevant
Now on the construction placed by me on article 359 the President has clearly the constitutional power  to suspend the aforesaid right
The fact that Parliament by taking shelter under that order may enforce void laws cannot make a valid exercise of a power of the President one in fraud of his power
The next argument is that the order issued by the President is in excess of the powers conferred under article 359 of the Constitution
Under article 359 the argument proceeds the order made by the President can relate to a period or the whole or a part of the territory of India and cannot be confined to a class of persons
As the order is restricted to persons that have
been deprived of their rights under the Defence of India Ordinance it is said that it is not sanctioned by the provisions of article 359
There are no merits in this contention
Under the order the right to move for the enforcement of the rights mentioned therein is suspended during the period of emergency and it applies to the entire country
The fact that only persons who are deprived of their rights under the Defence of India Ordinance cannot exercise their right to move the Court does not make the order one confined to a class of persons
The Ordinance has force throughout India and ex hypothesis only persons affected would move the Court
That does not mean that the order is confined only to a class of persons
The next contention is that the impugned section suffers from the vice of excessive delegation and that in any view the relevant rules framed are in excess of the power conferred upon the Government by the said Act
I cannot agree with either of the two contentions
On this aspect I have nothing more to add to that found in the judgment of my learned brother
But the order made by the President still leaves the door open for deciding some questions even under article 32 or article 226 of the Constitution
The order is a conditional one
 In effect it says that the right remains suspended if such person has been deprived of any such right under the Defence of India Ordinance 1962 or under any rule or order made thereunder
The condition is that the person should have been deprived of a right under the 868 Defence of India Ordinance or under any rule or order made thereunder
If a person was deprived of such a right not under the Ordinance or a rule or order made thereunder his right would not be suspended
If the order was made in excess of the power conferred upon the Government by the said Ordinance it would not be covered by that order
If the detention was made mala fide it would equally be not an order made under the Ordinance
My view on the basis of the aforesaid discussion may be stated thus  1 The detenus cannot exercise their right to enforce their fundamental rights under articles 21 22 and 14 of the Constitution during the period for which the said right was suspended by the President s order
2 This does not preclude the High Court to release the detenus in exercise of its power under section 491 of the Code of Criminal Procedure if they were imprisoned under a void law though the voidness of the law arose out of infringement of their fundamental rights under articles 14 21 and 22 of the Constitution
3 The President s order does not preclude even under article 321 and article 226 of the Constitution the petitioners from proving that the orders of detention were not made under the Defence of India Ordinance or the Act either because they were made i outside the provisions of the Ordinance of the Act or ii in excess of the power conferred under them or iii the detention were made mala fide or due to a fraudulent exercise of power
I would close with a few observations
In the view I have taken
there are three courses open to Parliament  either it can make a valid law without infringing the fundamental rights other than those enshrined in article 19 or amend section 491 of the Code in order to maintain the enforcement of void laws or do both
It is not for me to suggest the right course
In the result the petitions will now go to the Constitution Bench for disposal on the said questions
ORDER BY COURT In accordance with the opinion of the majority the constitutional points raised in the Appeals are dismissed
Appeals to be set down individually before a Constitution Bench for dealing with the other contentions raised in each one of them


Summary:
The appellants were detained under r 30l of the Defence of India Rules made by the Central Government under section 3 of the Defence of India Ordinance 1962
They applied to the Punjab and Bombay High Courts under section 4911b of the Code of Criminal Procedure and their case was that sections 3215i and 40 of the Defence of India Act 1962 and r 301b of the Defence of India Rules which were continued under the Act were unconstitutional and invalid inasmuch as they contravened their fundamental rights under articles 14 21 224 5 and 7 of the Constitution and that therefore they should be set at liberty
The High Courts held that the Presidential Order which had been issued on November 3 1962 under article 3591 of the Constitution after a declaration of emergency under article 352 consequent on the Chinese invasion of India barred their right to move the said petitions and dismissed them
These appeals raised two common questions in this Court 1 what was the true scope and effect of the Presidential Order issued under article 3591 and 2 did the bar created by the Order operate in respect of the applications under section 4911b of the Code
The Presidential Order was as follows GSR 1464 In exercise of the powers conferred by cl
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 right 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
 By a later amendment of the Order article 14 was incorporated into it
798 Heldper Gajendragadkar Sarkar Wanchoo Hidayatullah Das Gupta and Shah JJ that the proceedings taken by the appellants in the High Courts under section 4911b of the Code were hit by the Presidential Order and must be held to be incompetent
Article 359 of the Constitution was not capable of two interpretations and it was therefore not necessary to decide the controversy raised by the parties as to whether that Article should be interpreted in favour of the President s power granted by it or the fundamental rights of the citizens
The King At the Prosecution of Arthur Zadig vs Halliday   Liversidge vs Sir John Anderson   Keshav Talpade vs The King Emperor 1943 FCR 49 Nakkuda Ali vs M F De section Jayaratne and King Emperor vs Vimalabal Deshpande LR 73 1 A 144 considered
The words any court  in article 3591 construed in their plain grammatical meaning must mean any court of competent jurisdiction including  the Supreme Court and the High Courts before which the rights specified in the Presidential Order can be enforced
It was not correct to say that the use of the words was necessary so as to include such other courts as might be empowered in terms of article 323
Nor was it correct to say that the words could not include a High Court as its power to issue a writ under article 2261 was discretionary
In judging whether a particular proceeding fell within the purview of the Presidential Order the determining factor was not its form nor the words in which the relief was couched but the substance of it
If in granting the relief the court had to consider whether any of the fundamental rights mentioned in the Presidential Order had been contravened the proceeding was within the Order whether it was under article 32l or 2261 of the Constitution
The right to move the court for writ of habeas corpus under section 4911b of the Code of Criminal Procedure was now a statutory right and could no longer be claimed under the common law
Girindra Nath Banerjee vs Birendra Nath Pal ILR 54 Cal
727 District Magistrate Trivandrum vs K C Mammen Map pillai ILR  Matthen vs District Magistrate Trivandrum LR 66 IA 222 and King Emperor vs Sibnath Banerji LR 72 IA 241 referred to
Since the promulgation of the Constitution the two methods by which a citizen could enforce his right of personal freedom were i by a writ under article 2261 or article 32l or ii under section 4911b of the Code of Criminal Procedure
Whichever method he adopted if the right he sought to enforce was a fundamental right guaranteed by the Constitution the matter must come within article 3591 of the Constitution
That the court could exercise its power under section 4911b suo motu could make no 799 difference and articles 372 225 or 375 could provide no valid ground of attack
The suspension of the right to move any court as under the Presidential Order must necessarily suspend the Court s jurisdiction accordingly
The right to challenge a detention order under section 4911b of the Code had been enlarged by the fundamental rights guaranteed by the Constitution and when a detenu relied upon such rights in his petition under that section he was in substance seeking to enforce his fundamental rights
The prohibition contained in article 3591 and the Presidential Order must therefore apply
The expression right to move any court in article 3591 and the Presidential Order takes in all legal actions filed or to be filed in which the specified rights are sought to be enforced and covers all relevant categories of jurisdictions of competent courts under which the said actions would other wise have been normally entertained and tried
Sree Mohan Chowdhury vs Chief Commissioner Union Territory of Tripura   referred to
Even though the impugned Act may be invalid by reason of contravention of articles 14 21 and 22 as contended by the appellants that invalidity could not be challenged during the period prescribed by the Presidential Order and it could not be said that the President could not because of such invalidity issue the order
Where however the challenge to the validity of the detention order was based on any right other than those mentioned in the Presidential Order the detenu s right to move any court could not be suspended by the Presidential Order because the right was outside article 3591
Where again 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 and in all cases falling under the other categories of section 4911 of the Code excepting those under section 4911b the bar of the Presidential Order could have no application
So also the plea that the operative provision of the law under which the order of detention was made suffered from the vice of excessive delegation was an independent plea not relatable to the fundamental rights mentioned in the Presidential Order and its validity had to be examined
The plea that section 3215i and section 40 of the impugned Act suffered from excessive delegation must fail
The legislative policy was broad stated in the preamble and the relevant provisions of sections 31 and 32 gave detailed and specific guidance to the rule making authority and it was not correct to say that the Act had by the impugned sections delegated essentially legislative function to that authority
Rule 301b which was consistent with the operative provisions of the Act could not also be challenged on that ground
800 In  The etc
  Harishankar Bagla vs The State of Madhya Pradesh  Bhatanagars and Co Ltd vs The Union of India   relied on
The impugned Act could not also he struck down as a piece of colourable legislation because the  was already on the Statute book
The Parliament had power under Entry 9 List I of the Seventh Schedule to the Constitution and if in view of the grave threat to the security of India it passed the Act it could not be said to have acted malafide
If the Parliament thought that the executive would not be able to detain citizens reasonably suspected of prejudicial activities by a recourse to the  which provided for the required constitutional safeguards and the impugned Act which it enacted did not it could not be suggested that it was acting malafide
Even if the impugned Act contravened articles 14 and 22 and the detentions thereunder were invalid article 3591 and the Presidential Order which were precisely meant to meet such a situation barred investigation on the merits during the period prescribed by the Order
The proceeding under section 4911b of the Code is one pro ceeding and the sole relief that can be claimed under it is release from the detention
If that could not be claimed because of the Presidential Order it was unreasonable to say that a mere declaration that the impugned Act and the detention thereunder were invalid could be made
Such a declaration is clearly outside the purview of section 4911b of the Code as also of articles 2261 and 32l of the Constitution
The period for which the emergency should continue and the restrictions that should be imposed during its continuance are matters that must inevitably be left to the executive
In a democratic state the effective safeguard against any abuse of power in peace as also in emergency is the existence of enlightened vigilant and vocal public opinion
Liversidge vs Sir John Anderson 19421 AC 206 referred to
The inviolability of individual freedom and the majesty of law that sustains it are equally governed by the Constitution which has made this Court the custodian of the fundamental rights on the one hand and on the other provided for the declaration of the emergency
Consequently in dealing with the right of a citizen to challenge the validity of his detention effect must be given to article 3591 and the Presidential Order issued under it
The right specified in that Article must be held to include such right whether constitutional or constitutionally guaranteed and the words any court must include the Supreme Court and the High Court
The Punjab and the Bombay High Courts were therefore right in their decision that the applications under section 4911b of 801 the Code were incompetent in so far as they sought to challenge the validity of the detentions on the ground that the Act and the Rules under which the orders were made contravened articles 14 21 and 2245 and 7 of the Constitution
Per Subba Rao J It was clear that section 3215i of the Defence of India Act 1962 and r 301b made under the Act contravened the relevant provisions of article 22 of the Constitution and were therefore void
Deep Chand vs The State of Uttar Pradesh 1959 Supp 2 SCR 840 Mahendra Lal vs State of UP AIR 1963 SC 1019 A K Gopalan vs State of Madras   referred to
Under the Constitution every person has a right to move the Supreme Court the High Courts or any other court or courts constituted by the Parliament under article 323 for the enforcement of fundamental rights in the manner prescribed
But while the right to move the Supreme Court is a guaranteed right the right to move the others is not so
Article 359 properly construed meant that the bar imposed by the Presidential Order applied not only to the guaranteed right to move the Supreme Court but also the rights to move the other courts under article 32 and article 226 of the Constitution
There is no new rule of construction peculiar to war measures
It is always the same whether in peace or in war
The fundamental rule is that the courts have to find out the expressed intention of the Legislature from the words of the enactment itself
Words must be given their natural and ordinary meaning unless there is ambiguity in the language in which case the court has to adopt that meaning which furthers the intention of the Legislature
A constitutional provision such as article 359 however cannot be given a strained construction to meet a passing phase such as the present emergency
Rex vs Halliday LR 19171 AC 260 Liversidge vs Sir John Anderson   Nakkuda A1i vs jayaratna  Gibbon vs Ogden 1824 6 L Ed 23 discussed
Section 491 of the Code of Criminal Procedure is wide in its terms and gives a discretionary power to the High Courts
Unlike articles 32 and 226 the exercise of the power is not channelled through procedural writs or orders and their technicalities cannot circumscribe the court s discretion
Girindra Nath Banerjee vs Birendra Nath Pal 1927 ILR  District Magistrate Trivandrum vs Mammen Mappillai ILR  Matten vs District Magistrate Trivandrum LR 1939 66 IA 222 referred to
Section 491 is continued by article 372 and article
225 preserves 802 the jurisdiction of the High Court
The power it confers on the High Court is not inconsistent either with article 32 or article 226 or any other Article of the Constitution and the section cannot therefore be said to have been impliedly superseded even to the extent article 226 empowers the High Court to give relief in cases of illegal detention
Though remedial in form the section postulates the existence of the substantive right that no person can be deprived of his liberty except in the manner prescribed by law
It assumes the existence of the rule of law and empowers High Court to act suo motu
The rights substantive and procedural conferred by it arc different from those under articles 32 or 226 of the Constitution
It places the onus on the custodian to prove that the detention is legal and although in scrutinising the legality of the detention the court may have to consider whether the law offends any fundamental rights that cannot make the proceeding one for the enforcement of fundamental rights or the decision anything but one on the unconstitutionality of a law because of infringement of fundamental rights generally
The mode of approach to the High Court under section 491 of the Code or the nature of the relief given thereunder cannot be equated with those under the Constitution
The absolute discretionary jurisdiction under it cannot be put on a par with the jurisdiction under article 226 which is hedged in by constitutional limitations
Alam Khan vs The Crown Lahore 274 Ramji Lal vs The Crown ILR 1949 11 EP 28 King Emperor vs Vimlabai Deshpande 1946 LR 73 IA 144 referred to
While section 491 gives no right to enforce fundamental rights operating as it does as a check on arbitrary action article 359 is concerned not with statutory powers but deals with the constitutional right and the constitutional enforcement of it
It was not therefore correct to say that article 359 would be frustrated if section 491 was allowed to stand for Parliament might amend that section any time it liked
The expression right to move any court for enforcement of such of the rights conferred by Part 111 in article 359 must refer only to the right to move under article 32 or article 226 for the said specific relief and could not be applied to the exercise of the statutory power of the High Courts under section 491 of the Code and consequently the expression all proceedings pending in any court for the enforcement of the rights must refer to the proceedings initiated in exercise of that right
The detenus could not therefore enforce their fundamental rights under articles 21 32 and 14 while the Presidential Order lasted but that did not affect the High Court s power under section 491 of the Code
The President s Order cannot bar the detenus from proving even under articles 32l and 226 that the detentions were not made 803 under the Defence of India Ordinance or the Act as they were outside the Ordinance or the Act or in excess of the power conferred by them or that the detentions were made malafide or in fraudulent exercise of power