Criminal Appeal No 279 of 1975
From the Judgment and order dated 1975 of the Madhya Pradesh High Court m M P No 597 of 1975 and Criminal Appeals No 355 356 of 1975
From the judgment and order dated 12111975 of the Allahabad Court in WP Nos 7428 and 6885 of 75 and Civil Appeal Nos
1845 1849 of 1975 From the Judgment and order dated 26111975 of the Karnataka High Court in W N Nos 3318 4101 4103 4177 and 4178 of 1975 and Criminal Appeal No 380 of 1975
Appeal by Special Leave from the Judgment and order dated 31101975 of the Delhi High Court in Criminal Writ No 14975 and Criminal Appeal No 41 of 1976 Appeal by Special Leave from the Judgment and order dated 19 11 1975 of Delhi High Court in Criminal Writ No 158 of 14975 and Criminal Appeal No 41 of 1976 Appeal by Special Leave from the Judgment and order dated 31 1075 of the Delhi High Court in Criminal Writ No 12875 and Criminal Appeal No 389 of 1975 Appeal by Special Leave from the Judgment and order dated 5 68th Dec 1975 of the Bombay High Court in Criminal Appln
Nos 171 95 97 99 109 115 116 and 16875 and Criminal Appeal No 3 of 1976 From the Judgment and order dated 12121975 of the High Court of Rajasthan in D B Crl
Habeas Corpus petition No 1606 of 1975 and ApplicantInterveners 1
Manek Ben In Crl A No 27975 2
Maharaj Jai Singh In Crl
A Nos 279 355 35675 3
Ms Surinder Mohan  Saraj Bhan Gupta In Crl
A Nos 279 353 35675 4
Mr VK Singh Chowdhry In Crl
A No 35575 5
Mr Deepchand Jain In Crl
A Nos 355 35675 215 I N Shroff and H section Parihar M C Nihalani Adv
Genl Ram Punjwani Dy
Genl for the state of Madhya Pradesh for the appellant in Criminal Appeal No 27975
Shanti Bhushan R P Goyal section section Khanduja B R Agarwala C L Sahu and R N Nath for the respondent in Criminal Appeal No 279 of 1975
section N Kakar Adv
Girdhar Malviya and o P Rana for the appellant State of U P in criminal appeals Nos
355 356 of 1975
Soli J Sorabjee section section Khanduja Mrs K Hingorani K N Tripathi R P Goyal and Yatindra Singh for the respondent in Crl
A No 35575
G C Dwivedi section section Khanduja Dr N M Ghatate R P Goyal K N Tripathi and K K
Jha for the respondent in Crl
A No 35675
For the applicantlnterveners 1
Manek Ben Ms section Venkataswami C section Vaidianatha Hardev Singh and R section Sodhi
Maharaj Jai Singh A K Sen R H Dhebar R C Bhatia and B V Desai 3
Ms Surinder Mohan  Suraj Bhan Gupta Ms Sharad Manohar and R N Nath 4
Mr V K Singh Chowdhry Mr Santokh Singh
Mr Deepchand Jain Ms Sharad Manohar and Amlan Ghosh Niren De Attorney General for India V P Raman Addl Sol
General R N Sachthey Girish Chandra and section P Nayar for the appellant in Civil Appeals Nos
1846 184975 and 192675 Rama Joise N M Ghatate and section section Khanduja for respondent in CA No 184575 C K Daphtary M Veerappa NM Ghatate Rama Joise SS Khanduja Miss Lilly Thomas Pramod Swaroop M Veerappa section Balakrishnan Sharad Manmohan MK Jain Altaf Ahmed RP Goyal KN Tripathi CC Dwivedi and Mrs K Hingorani for respondent in CA No 184875
SS Khanduja for respondent in CA No 1849 and RI 192675 K N Byra Reddy and Narayan Nettar for the appellant in CA No 192675
V M Tarkunde section K Sinha C K Ratnaparkhi section K Verma and M P Jha for respondent I in Criminal A 38075
216 N M Qazi and M N Shroff for the appellants in Criminal Appeal No 38075
N M Ghatate and section Balakrishnan for respondents 3  8 and 2 4 7 in Cr A No 38075
section M Jain for the appellant in Cr A No 376
V section Krishnan and A V M Krishnan for respondent No 2 in Criminal Appeal No 376
Niren De Attorney Genl V P Raman Addl
R N Sachthey Girish Chandra section P Nayar and P P Rad in Cr A No 27975 only for the Attorney General in Crl
As No 279  355 35675 P Ramchandra Reddy Adv
and P P Rao for the State of Andhra Pradesh in Crl
279 355 3567S Mr Balbhadra Prasad Singh and Mr U P Singh for the state of Bihar in Crl
279 355 35675
J N Kaushal Adv
General P P Rao and G D Gupta far the State of Haryana in Crl
A No 27975
Bakshi Sita Ram Adv
General R N Sachthey and section P Nayar for the state of Himachal Pradesh in Crl
279 355 35675
O K Tikhu Advocate General and Vineet Kumar for the state of Jammu and Kashmir in CA
1845 1849 R N Byra Reddy Advocate General and N Nettar for the State of Karnataka in Crl
A 279 and 184575
M M Abdul Khader Advocate General and D K M K Nair for the State of Kerala in Crh As 279 35S 3S675
R W Adik Advocate General and D R Dhanuka and M N Shroff for the state of Maharashtra in Crl
279 355 35675
J section Wasu Advocate General and O P Rana for the state of Punjab in Crl
279 355 35675
A V Rangam and Miss A Subhashini for the state of Tamil Nadu in Crl
279 355 35675
section N Kakar Advocate General and J M Nanavati OP Rana for the state of Uttar Predesh in Crl
A 279 and CA No 1845 184975
J M Thakore Advocate General J M Nanavati section K Dholakia and R C Bhatia for the state of Gujarat in an appeals
The following Judgments were delivered RAY CJ These appeals are by certificates in some cases and by leave in other cases
The state is the appellant The respondents were petitioners in the High Courts
217 The respondents filed applications in different High Courts for the issue of writ of habeas corpus
They challenged in some cases the validity of the 38th and the 39th Constitution Amendment Acts the Proclamation of Emergency by the President under Article 352 of the Constitution made on 25 June 1975
They challenged the legality and validity of the orders of their detention in all the cases
The State raised a preliminary objection that the Presidential order dated 27 June 1975 made under Article 359 of the Constitution suspending the detenus right to enforce any of the rights conferred by Articles 14 21 and 22 of the Constitution and the continuance of emergency during which by virtue of Article 358 all rights conferred by Article 19 stand suspended are a bar at the threshold for the resonants to invoke the jurisdiction of the High Court under Article 226 of the Constitution and to ask for writs of habeas corpus
The Judgment are of the High Courts of Allahabad Bombay Nagpur Bench Delhi Karnataka Madhya Pradesh Punjab and Rajasthan
The High Courts held that notwithstanding the continuance of emergency and the Presidential Order suspending the enforcement of fundamental rights conferred by Articles 1421 and 22 the High Courts can examine whether an order of detention is in accordance with the provisions of hereinafter referred to as the Act which constitute the conditions precedent to the exercise of powers thereunder excepting those provisions of the Act which are merely procedural or whether the order was necessary
The High courts also held that in spite of suspension of enforcement of fundamental rights conferred by Articles 21 and 22 of the Constitution a person s right to freedom from arrest or detention except in accordance with law can be enforced only where such arrest and detention except in accordance with law can be enforced only where such arrest and detention are not in accordance with those provisions of the statue which form the conditions precedent to the exercise of power under the status as distinguished from merely procedural provisions or are malafide or are not based on relevant materials by which the detaining authority could have been satisfied that the order of detention was necessary
The High Courts held that the High Courts could not go into the questions whether the Proclamation of Emergency was justified or whether the continuance thereof was malafide
The High Courts did not decide about the validity of the 38th and the 39th Constitution Amendment Acts
The 38th Constitution Amendment Act amended Articles 123 213 239b 352 356 359 and 360
Broadly Stated the 38th Constitution Amendment Act renders the satisfaction of the President or the Governor in the relevant Articles final and conclusive and to be beyond any question in any Court on any ground
As for Article 359 clause 1A has been inserted by the 38th Constitution Amendment Act
The 39th Constitution Amendment Act amended Articles 71 329
329A and added Entries after Entry 86 in the Ninth Schedule
218 No arguments were advanced on these Constitution Amendment Acts and nothing thereon falls for determination in these appeals
It is appropriate lo mention here that on 3 December 1971 in exercise of powers conferred by clause 1 of Article 352 of the Constitution the President by Proclamation declared that a grave emergency exists whereby he security of India is threatened by external aggression
On 25 June 1975 the President in exercise of powers conferred by clause 1 of Article 352 of the Constitution declared that a grave
emergency exists whereby the security of India is threatened by internal disturbances
On 27 June 1975 in exercise of powers conferred by clause 1 of Article 359 the President declared that the right of any person including a foreigner to move any Court for the enforcement of the rights conferred by Article 14 Article 21 and Article 22 of the Constitution and all proceedings pending in any Court for the enforcement of the above mentioned rights shall remain suspended for the period during which the Proclamations of Emergency made under clause 1 of Article 352 of the Constitution on 3 December 1971 and on 25 June 1975 are both in force
The Presidential order of 27 June 1975 further stated that the same shall be in addition to and not in derogation of any order made before the date of the aforesaid order under clause 1 of Article 359 of the Constitution
It should be noted here that on 8 January 1976 there was a notification that in exercise of powers conferred by clause 1 article 359 of the Constitution the President declares that the right of any perh son to move any Court for the enforcement of the rights conferred by Article 19 of the Constitution and all proceedings pending in any Court for the enforcements the above mentioned rights shall remain suspended for the period during which the Proclamation of Emergency made under clause 1 of Article 352 of the Constitution on 3 December 1971 and on 25 June 1975 are in force
The questions which fall for consideration are two 
First whether in view of the Presidential orders date 27 June 1975 and 8 January 1976 under clause 1 of Article 359 of the Constitution any writ petition under Article 226 before a High Court for habeas corpus to enforce the right to personal liberty of a person detained under the Act on the ground that the order of detention or the continued detention is for any reason not under or in compliance with the Act is maintainable
Second if such a petition is maintainable what is the scope or extent of judicial scrutiny particularly in view of the Presidential order dated 27 June 1975 mentioning inter alia Article 22 of the Constitution and also in view of sub section 9 of section 16A of the Act
The Attorney General contended that the object and purpose of emergency provisions is that the Constitution provides special powers to the Executive because at such times of emergency the considerations of state assume importance
It has been recognised that times of grave national emergency demand grant of special power to the Executive Emergency provisions contained in Part XVIII including Articles 358 219 3591 and 3591A are constitutional imperatives
The validity of law cannot be challenged on the ground of infringing a fundamental right mentioned in the Presidential Order under Article 3591
Similarly if the Executive take any action depriving a person of a fundamental right mentioned in the Presidential order any not complying with the law such Executive action can not be challenged because such challenge would amount in substance to and would directly impinge on the enforcement of fundamental rights mentioned in the Presidential order
The reason given by the Attorney General behind e principle is that in times of emergency the Executive safeguards the life of nation
Challenge to Executive actions either on the ground that these are arbitrary or unlawful has been negatived in England in Liversidge vs Andersonl and Greene vs Secretary of State for Home Affairs  and also by this Court in Sree Mohan Chowdhury vs the Chief Commissioner Union Territory of Tripura3 and Makhan Singh v State of Punjab4
The contentions of the respondents are as follows The arguments on behalf of the state mean that during the emergency there is no right to life or liberty
Article 358 is more extensive as the fundamental right itself is suspended
The Presidential order under Article 3591 does not suspend any fundamental right
Second the object of Article 3591 is to bar moving the Supreme Court under Article 32 for the enforcement of certain specified rights without affecting in any manner the enforcement of common law and statutory rights to personal liberty under Article 226 before the High Court
Third Article 3591 removes the fetter in Part III but does not remove the fetters arising from the principles of limited power of the Executive under the system of checks and balances based on separation of powers
Fourth while the Presidential order operates only in respect of fundamental rights mentioned in the Presidential order it would not affect the rights of personal liberty at common law or under statute law or under natural law
Fifth Article 3591 is not to protect illegal orders of the Executive
The Executive cannot flout the command of Parliament relying on a Presidential older under Article 3591
The suspension of fundamental right or of its enforcement cannot increase the power of the executive vis a vis the individual
Sixth there is no reason to equate the state with the Executive
The suspension of the fundamental right or the right to enforce it has only this consequence that it enables the Legislature to make laws violative of the suspended fundamental rights and the Executive to implement such laws
The suspension of the fundamental right does not unable the Executive to flout legislative mandates and judicial decisions
1  2 3  4 196414 Sr C R 797
220 Seventh the Executive can act to the prejudice of citizens only to the extent permitted by valid laws
The Proclamation of Emergency does not widen the Executive power of the state under Article 162 so as to empower the State to take any Executive action which it is not otherwise competent to take
Eighth the right to arrest is conferred by the Act on the State and their officers only if the conditions laid down under section 3 of the Act are fulfilled
Therefore if the conditions laid down under section 3 of the Act are not complied with by the detaining authority then the order of detention would be ultra vires the said Act
Ninth Habeas corpus is a remedy not only for the enforcement of he right to personal liberty whether under natural law or a statute but is also a remedy for the enforcement of the principle of ultra vires viz when the detaining authority has failed to comply with the conditions laid down in section 3 of the Act
In such a case the High Court has jurisdiction to issue a writ af haheas corpus for the enforcement of the principle of ultra vire
In England it was the practice in times of danger to the state to pass what were popularly known as Habeas Corpus Suspension Acts
Suspension did not legalise illegal arrest it merely suspended a particular remedy in respect of particular offences
Accordingly it was the practice in England at the close of the period of suspension to pass an Indemnity Act in order to protect official concerned from the consequences of any incidental illegal acts which they might have committed under cover of the suspension of the prerogative writ
In England the Defence of the Realm Acts 1914 18 empowered the Executive to make regulations by order in Council for securing the public safety or for the defence of the realm
In The King vs Hallday Ex parte Zadiq1 the House of Lords held that a regulation was valid which authorised the Secretary of state to detain a British subject on the grounds of his hostile origin or association
It was contended on behalf of Zadiq that there was no provision for imprisonment without trial
The substantial contention was that general words in a statute could not take away the vested right of a subject or alter the fundamental law of the Constitution because it would be repugnant to the Constitutional tradition of the country
The majority of the court swept aside these arguments and held that on the construction of the Act
the Executive had unrestricted powers
During the Second World War the Emergency Powers Defence Act 1939 in England empowered the making of regulations for the detention of persons by the Secretary of state in the interests of the public safety or the defence of the realm and for authority to enter and search any premises
Although access to the courts was not barred during the Second World War in England the scope for judicial review of executive action 1  221 was limited
The courts could not consider whether a particular regulation is necessary or expedient for the purpose of the Act which authorised it
The question of necessity or expediency was one for the Government to decide
The court could however hold an act to be illegal as being not authorised by the regulation relied upon to Justify it
It was open to the subject in England to challenge detention by application for a writ of habeas corpus but such application had little chance of success in view of the decision of the House of Lords in Liversidge s case supra
The House of Lords took the view that the power to detain could not be controlled by the courts if only because considerations of security forbade proof of the evidence upon which detention was ordered
It was sufficient for the Home Secretary to have a belief which in his mind was reasonable
The courts would not enquire into the grounds for his belief although apparently they might examine positive evidence of mala fides or mistaken identity
In Greece s case supra the House of Lords held that a mistake on the part of the advisory committee in failing as was required by the regulation to give the appellant correct reasons for his detention did not invalid the detention order
It is noticeable how the same House expressed this view without any dissent
Dicey states that this increase in the power of the Executive is no trifle but it falls far short of the process known in some foreign countries as  suspending the constitutional guarantees or in France as the proclamation or a State of siege 
Under the Act of 1881 the Irish executive obtained the absolute power of arbitrary and preventive arrest and could without breach of law detain in prison any person arrested on suspicion for the whole period for which the Act continued in force
Under the Prevention of Crime Ireland Act 1882 the Irish Executive was armed with extraordinary powers in the case of certain crimes to abolish right to trial by jury
The Act of Indemnity in England is a retrospective statute which frees persons who had broken the law from responsibility for its breach and thus make acts lawful which when they were committed were unlawful
A Habeas Corpus Suspension Act does not free any person from civil or criminal liability for a violation of the law
The suspension indeed of the Habeas Corpus Act may prevent the person arrested from taking at the moment any proceeding against the Secretary of State
While the suspension lasts he will not be able to get himself discharged from prison
If the prisoner has been guilty of no legal offence then on the expiration of the Suspension Act the Secretary of State and his subordinates arc liable to actions or indictments for their illegal conduct
Dicey stated that the unavowed object of a Habeas Corpus Suspension Act is to unable the Government to do acts which though politically expedient may not he strictly legal
The Parliament which suspends one of the guarantees for individual freedom must hold that a crisis has arisen when the rights of individuals must be postponed to consideration or State
A Suspension Act would in facts fail of it
222 main object unless the officials felt
assured that as long as they bonafide and uninfluenced by malice or by corrupt motives carried out the policy of which the Act was visible sign they would be protected from penalties for conduct which though it night be technically a breach of law was nothing more than the free exertion for the public good of that discretionary power which the suspension of Habeas Corpus Act was intended to confer Upon the executive
The position in America is described in Cooley on the General Principles of Constitutional Law in the USA Fourth Edition
In America he right to the writ of Habeas Corpus is not expressly declared in the Constitution but it is recognised in the provision Article 1 in section 9 clause 2 that the privilege of writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it
In America the power in suspend the privilege is a legislative power and the President cannot exercise it except as authorised by law
The suspension does not legalise what is doing while it continues
It merely suspends or the time this particular remedy
All other remedies for illegal arrests remain and may be pursued against the parties making or continuing them
Liberty is confined and controlled by law whether common law or statute
It is in the words of Burke a regulated freedom
It is not an abstract or absolute freedom
The safeguard of liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved
If extraordinary powers are given they are given because the emergency is extraordinary and are limited to the period of the emergency
Unsuitability of a court of law for determining matters of discretionary policy was referred to by Lord Parker in the Zamora1 case and Lord Finlay in the Zadiq case supra
In the Liversidge s case supra it was held that the
court is not merely an inappropriate tribunal but one the jurisdiction of which is unworkable and even illusory in these cases
A court of law could not have before it the information on which the Secretary acts still less the background of statement and national policy what is and what must determine the action which he takes upon it
The Liversidge case supra referred to these observations in the Zadiq case supra However precious the personal liberty of the subject may be there is something for which it may well be to some extent sacrificed by legal enactment namely national success in the war or escape from national plunder or enslavement
Liberty is itself the gift of the law and may by the law be forfeited or abridged
There is no record of any life of an individual being taken away either in our country during emergency or in England or America during emergency in their countries
It can never be reasonably assumed that such a think will happen
Some instances from different countries were referred to by some counsel for the respondents as to what happened there when people were murdered in gas chambers or 1 223 people were otherwise murdered
Such instances are intend to produce a kind of terror and horror and are hortative in character
People who have faith in themselves and in their country will not paint pictures of diabolic distortion and mendacious malignment of the governance of the country
Quite often arguments are heard that extreme examples the given to test the power
If there is power extreme examples will neither add to the power nor rob the same
Extreme examples tend only to obfuscate reason and reality
The reffect of the Suspension of Habeas Corpus Acts and of Indemnity Acts in England has been to give every man security and confidence in periods of public danger or apprehension
Rarely however has this been suffered without jealousy hesitation and remonstrance
Whenever the perils of the State have been held sufficient to warrant this sacrifice of personal liberty no Minister or Magistrate has been suffered to tamper with the law at his discretion
Where the Government believes the State be threatened by traitorous conspiracies during times of grave emergencies the rights of individuals of ordinary times become subordinate to considerations of the State
The pre eminent questions are four
First is the Presidential order under Article 359 a bar at the threshold Second is Article 21 the sole repository of right to the and personal liberty
Third is the Presidential order subject to the rubric of Rule of Law  Fourth is section 16A9 of the Act a rule of evidence  The first question turns on the depth and content of the Presidential order
The vital distinction between Article 358 and Article 359 is that Article 358 suspends the rights only under Article 19 to the extent that the Legislature can make laws contravening Article 19 during the operation of a Proclamation of Emergency and the Executive can take action which the Executive is competent to take under such laws
Article 358 does not suspend any fundamental right
While a Proclamation of Emergency is in operation the Presidential order under Article 3591 can suspend the enforcement of any or all fundamental rights
Article 3591 also suspends any pending proceedings for the enforcement of such fundamental right or rights
The purpose and object of Article 3591 is that the enforcement of any fundamental right mentioned in the Presidential order is barred or it remains suspended during the emergency
Another important distinction between the two Articles is that Article 355 provides for indemnity where as Article 3591 does not Article 3591A is on the same lines as Article 358 but Article 3591A now includes all fundamental rights which may be mentioned in a Presidential order and is therefore much wider than Article 358 which includes Article 19 only
A person can enforce a fundamental right both in the case of law being made in violation of that right and also if the Executive acts in non compliance with valid laws or acts without the authority of law
It cannot be said that the scope of Article 3591 is only to restrict the application of the Article to the Legislative field and not to the Acts of the Executive
The reason is that and enforcement of the fundamental rights mentioned in the Presidential order is barred 224 and any challenge either to law or to any act of the Executive on the ground that it is not in compliance with the valid law or without authority of law will amount to enforcement of fundamental rights and will therefore be within the mischief of the Presidential order
The effect of the Presidential order suspending the enforcement of fundamental r right amounts to bar the locus standi of any person to move the court on the ground of violation of a fundamental right
The Constitution is the mandate
the Constitution is the rule of law
No one can arise above the rule of law in the Constitution
The decisions of this Court in Mohan Chowdhury s supra case Makhan Singh s supra case and Dr Ram Manohar Lohia vs State of Bihar  Ors 1 are that any court means all courts including this Court and high Courts and the right to initiate legal proceedings
A person can enforce fundamental rights in this Court under Article 32 as well as in the High Courts under Article 226
It is idle to suggest that the object of Article 3591 is that the right to move this Court only is barred and not the right to move any High Court
Article 226 does not provide a guaranteed fundamental right like Article 32
This guaranteed right under Article 32 itself may be suspended by a Presidential order under Article 3591
In such a case it could not be said that the object of the makers of the Constitution is that a person could not move this Court for the enforcement of fundamental rights mentioned in the Presidential order but could do so under article 226
the bar created by
Article 3591 applies to petitions for the enforcement of fundamental rights mentioned in the Presidential order whether by way of an application under Article 32 or by way of any application under Article 226
See Makhan Singh s case supra and Ram Manohar Lohia s case supra
It is incorrect to say that the jurisdiction and powers of this Court under Article 32 and of the High Courts under Article 226 are virtually abolished by the Presidential order without any amendment of the Constitution
No amendment of the Constitution is necessary because no jurisdiction and power either of this Court or of the High Court is taken away
When a Presidential order takes away the locus standi of the detenus to move any court for the enforcement of fundamental rights for the time being the jurisdiction and powers of this Court and of the High Courts remain unaltered Article 3591 is not directed against any court
It is directed against an individual and deprives him of his locus standi
The courts cannot either increase or curtail the freedom of individuals contrary to the provisions of the Constitution
The courts interpret the Constitution and the laws in accordance with law and judicial conscience and not emotion
It is wrong to say that the Executive has asked or directed any one not to comply with the conditions of the Act
The question is not whether the Executive should comply or should not comply with the Act but whether a detenu has a locus standi to move any court for a writ in the nature of habeas corpus of the ground of non compliance with the provisions of the Act
1  225 In period of public danger or apprehension the protective law which gives every man security and confidence in times of tranquility has to give way to interests of the State
The opinion in England has been that when danger is imminent the liberty of the subject is sub ordinated to the paramount interests of the State
Ring leaders are seized and outrages anticipated
Plots are disconcerted and the dark haunts of conspiracy filled with distrust and terror See May Constitutional History of England Vol
l pp 130 135
While the courts of law are in normal times peculiarly competent to weigh the competing claims of individuals and government they are in equipped to determine whether a given configuration of events threatens the life of the community and thus constitutes an emergency
Neither are they equipped once an emergency has been recognised particularly a war emergency or emergency on account of security of the country being threatened by internal aggression to measure the degree to which the preservation of the life of the community may require governmental control of the activities of the individual
Jurists do not have the vital sources of information and advice which are available to the executive and the legislature nor have they the burden of formulating and administering the continuing programme of the government and the political responsibility of the people which though intangibles are of crucial importance in establishing the content within which such decisions must be made
Article 3591 makes no distinction between the threat to the security of India by war or external aggression on one hand and threat to the security of India by internal disturbance on the other
In fact both situations are covered by the expression grave emergency in Article 3521
Apart from Article 3591 all provisions of the Constitution laying down the consequences of a Proclamation of Emergency under Article 3521 would apply to both situations
The consequences of a Proclamation of Emergency under Article 3521 of our Constitution are much wider than in England or America
Article 353 provides that the executive power of the Union shall extend to giving of directions to any State as to manner in which the executive power thereof is to be exercised
The exercise of such executive power by the Union totally displaces the provisions of Article 162
Non compliance with directions of the Union Executive under Article 353 by any State Executive may attract the provisions of Article 356 and the President s Rule may be imposed on that State
In such an event Parliament may under Article 3571 confer on the President the power of the Legislature of that State to make laws or to delegate such legislative power to any other authority
In such a situation the federal structure and representative Government on which the Constitution is based may be completely changed in the State or States concerned
Article 250 provides that during the operation of Proclamation of Emergency Parliament may make laws with respect to any of the matters enumerated in the State list
The Federal Structure and representative government may suffer its full place in that situation
17 833 SCI76 226 on the expiry of the operation of the Presidential order under Article 3591 the infringement of the fundamental rights mentioned in the order either by the legislative enactment or by an executive action may be challenged in a court of law and if after such expiration Parliament passes an Act of Indemnity the validity and the effect of such legislation may have to be scrutinised
See Makhan Singh s case supra at 813
The provisions in our Constitution relating to emergence are of wide amplitude
The Executive is armed with special powers because individual interests are subordinated to State security
If law is invalid vis a vis fundamental rights there cannot be any challenge during the operation of Articles 358 and 359 on the ground that law violates fundamental rights
It is contradictory to say that there can yet be challenge to orders under that law as being not in accordance with law
Article 19 is a prohibition against law
Article 19 has nothing to do with the Executive
Law under Article 21 can be punitive or preventive
In Article 22 reference is made to grounds and representation in cases of preventive detention
If enforcement of Article 22 is suspended one is left with Article 21
The Act in the present case is law
The Executive orders are under that law
Any allegation that orders are not under that law will not rob the orders of the protective umbrella of Article 359
The challenge by a detenu that law is broken will be enforcement of Article 21 because law contemplated under Article 21 is substantive as well as procedural law
A law can be broken either of substantive or procedural parts
Neither enforcement of nor relief to personal liberty is based on Article 19
No executive action is valid unless backed by law
In the present cases there is law authorising detention
In the present cases the writs questioned the validity of detention
The Legislature under Article 358 is authorised to act in breach of Article 19
The executive can act only in terms of that law
If this is pre emergency law it has to satisfy Part III of our Constitution
If it is emergency law it can violate Article 19 because it is protected by Article 358
Under Article 359 the Presidential orders have been of two types
on 3 November 1962 in exercise of powers conferred by clause 1 of Article 359 of the Constitution the President declared that the right of any person to move any court for the enforcement of the rights conferred by Article 21 and Article 22 shall remain suspended for the period during which the Proclamation of Emergency issued under clause 1 of Article 352 on 26 October 1962 is in force if such a person has been deprived of any right under the Defence of India ordinance 1962 or of any rule or order made thereunder
the 1975 Presidential order under Article 3591 does not have the words if such a person has been deprived of any such right under the Defence of India ordinance 1962 or any rule or order made thereunder
In other words the 1962 Presidential order is limited to the condition of deprivation of rights under the Defence of India ordinance or any rule or order made thereunder whereas in the 1975 Presidential order no statute is mentioned
The illegality of orders was challenged in 227 Makhan Singh s case supra in spite of the Presidential order under the 1962 Proclamation on the ground that the impeached orders are not in terms of the statute or they are made in abuse of law
The decisions of this Court in Mohan Chowdhury s and Makhan Singh s cases supra are that during the operation of a Proclamation of emergency no one has any locus standi to move any court for the enforcement of any fundamental rights mentioned in the Presidential Order
The ratio must necessarily apply to Executive acts because Executive acts are challenged on the grounds of being contrary to law and without the authority of law
The submission of the respondents that a person in detention can come to a court of law in spite of the Presidential order under Article 3591 and contend that a habeas corpus should be issued for his release or that the Executive should answer the detenu s challenge that the Act complained of is without authority of law or the challenge of the detenu that the provisions of the Legislative Act under which the detention has been made have not been complied with are all rooted in the enforcement of fundamental rights to liberty under Articles 21 and 22
If courts will in spite of the Presidential order entertain such applications and allow the detenus to enforce to start or continue proceedings or enforce fundamental rights
Article 3591 will be nullified and rendered notice
This Court in Makhan Singh s case supra said that if there was challenge to the validity of the detention order based on any right other than those mentioned in the Presidential order that detenu s right to move any court could not be suspended by the Presidential order because the right was outside Article 3591
This was explained by stating that if the detention was challenged on the ground that it contravened the mandatory provisions of the relevant Act or that it was malafide and was proved to be so the bar of the Presidential order could have no application
This observation in Makhan Singh s case supra is to be understood in the context of the question that arose for decision there
Decision on a point not necessary for the purpose of or which does not fall to be determined in that decision becomes an obiter dictum See Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur  Ors
vs Union of India1
In Makhan Singh s case supra the detention orders which were the subject matter of the judgment were orders made by the Executive under the Defence of India ordinance or Act and rules and orders made thereunder which was the express condition for detention in respect of which the Presidential order of 1962 under Article 3591 applied
The Presidential order in the present case is on the face of it an unconditional order and as such there is the vital and telling difference between the effect of the Presidential order of 1962 and the present Presidential order
It is obvious that the Government fully conscious of the Presidential order of 1962 and its effect as determined by the decisions of this Court in Makhan Singh s case supra and subsequent 1 at pp
97 98 193 194
228 cases deliberately made the present Presidential order an unconditional order under Article 3591
Reference may be made to State of Maharashtra vs Prabhakar Pandurang Sangzgiri and Anr1 which clearly pointed out that the Presidential order of 1962 was a conditional one and therefore if a person was deprived of his personal liberty not under the Act or rules and orders made thereunder but in contravention thereof his right to move the courts in that regard would not be suspended The decision of this Court in Pandurang s case supra is by the Constitution Bench of five learned Judges three of whom were on the Constitution Bench of seven learned Judges deciding Makhan Singh s case supra
In Pandurang s case supra the ratio was that if a personal was deprived of his personal liberty not under the Act or rules and orders made thereunder but in contravention thereof his right to move the courts in that regard was not suspended It therefore follows from the decisions in Pandurang s case and Makhan Singh s case supra that the ratio in both the cases was that the 1962 Presidential order being a conditional one the enforcement of rights under Articles 21 and 22 was suspended only to the extent of the conditions laid down in the Presidential order and the suspension could not operate in areas outside the conditions
There is no aspect whatever
Of any condition in the present Presidential order
Therefore the decisions in Makhan Singh s case supra and subsequent cases following it have no application to the present cases where the suspension is not hedged with any condition of enforcement of any right under Articles 21 and 22
The conclusion for the forging reasons is that the Presidential order is a bar at the threshold
The heart of the matter is whether Article 21 is the sole repository of the right to personal liberty
If the answer to that question be in the affirmative the Presidential order will be a bar
The contentions of the Attorney General are two fold
First the legal enforceable right to personal liberty for violation thereof by the Executive is a fundamental right conferred by the Constitution and is embodied in Article 21
Second apart from Article 21 the right to personal liberty against the Executive is neither a common law right nor a statutory right nor a natural right
He relies on three decisions
The earliest is Girindra Nath Banerjee vs Birendra Nath Pal2
The others are King Emperor vs Sibnath Banerjee3 and Makhan Singh s case supra
In the first two decisions it has been held that the right to habeas corpus is only under section 491 of the Code of Criminal Procedure
In Makhan Singh s case supra it has been said that this right under section 491 became embodied in Article 21
The statutory right under section 491 of the Code of Criminal Procedure has been deleted from the new Code of Criminal Procedure which came into effect on 1 April 1974
1  2 I L
R 3 72 I A 241 229 The arguments on behalf of the respondents are that the right to life and personal liberty is not only in Article 21 but also under common law and statutes for these reasons
The right to personal liberty is contained in Articles 19 20 and 22 and therefore Article 21 is not the sole repository to personal liberty
The respondents rely on the decision is Rustom Cavasjee Cooper vs Union of India1 where it was said that the ruling in A K Gopalan vs the State of Madras2 that Articles 19 and 22 are mutually exclusive no longer holds the field
The respondents also rely on the decisions if Shombhu Nath Sankar vs The state of West Bengal  Ors1 Haradhan Saha  Anr
vs The State of West Bengal  Ors4 and Khudiram Das vs The State of West Bengal  Ors5 in support the proposition that these decisions followed the ruling in the Bank Nationalisation case supra
The respondents contend that the Presidential order bars enforcement of rights under Articles 14 19 21 and 22 but it is open to the respondents to enforce violation of right under Article 20
The other reasons advanced by the respondents are dealt with hereinafter
The majority view in His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala6 is that there are no natural rights
fundamental rights in our Constitution are interpreted to lie what is commonly said to be natural rights
The only right the life and liberty is enshrined in Article 21
In A K Gopalan s case supra it has been said that to read law as meaning natural law is to lay down vague standards
Law means law enacted by the State
Law must have some firmness
Law means positive State made law
Article 21 has been interpreted in A K Gopalan s case supra to include substantive as well as procedural law in the phrase procedure established by law
The reason is obvious
A law providing for procedure depriving a person of liberty must be a law made by statute
P D Shamdasani vs Central Bank of India Ltd7 held that Article 21 is prohibition against unauthorised executive action
In Shrimati Vidya Verma through next friend R V section Mani vs Dr Shiva Narain Verma8 law in Article 21 has been held in mean State made law
In Makhan Singh s case supra it was decided that during the subsistence of the Presidential order suspending the enforcement of fundamental rights neither a petition under Article 32 nor a petition under Article 226 could be moved invoking habeas corpus
An application invoking habeas corpus under section 491 of the Code of Criminal Procedure cannot similarly be moved in the High Court
Part III of our Constitution confers fundamental rights in positive as well as in negative language
Articles 151 161 19 222
1  2 3  4  S  6 1973 Supp
section C R 1
7  8  230 225 251 26 291 30 and 321 can be described to be Articles in positive language
Articles 14 152 162 20 21 221 224 27 281 292 311 and 2 are in negative language
It is apparent that most categories of fundamental rights are in positive as well as in negative language
A fundamental right couched in negative language accentuates by reason thereof the importance of that right
The negative language is worded to emphasise the immunity from State action as a fundamental right
See The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga and ors 1  These fundamental rights conferred by our Constitution have taken different forms
Some of these fundamental rights are said to have the texture of Basic Human Rights See A K Gopalan s case supra at pp
96 97 248 249 293 and Bank Nationalisation case supra at pp
568 71 576 78
Article 311 and 2 subordinate the exercise of the power of the State to the concept of the Rule of Law enshrined in the Constitution
See Bank Nationalisation case supra at p 568
Similarly Article 21 is our Rule of Law regarding life and liberty
No other rule of law can have separate existence as a distinct right
The negative language of fundamental right incorporated in Part III imposes limitations on the power of the State and declares the corresponding guarantee of the individual to that fundamental right
The limitation and guarantee are complementary
The limitation of State action embodied in a fundamental right couched in negative form is the measure of the protection of the individual
Personal liberty in Article 21 includes all varieties of rights which go to make personal liberty other than those in Article 191d
see Kharak Singh vs State of UP  Ors2
The Bank Nationalisation case supra merely brings in the concept of reasonable restriction in the law
In the present appeals the Act is not challenged nor can it be challenged by reason of Article 358 and Article 3591A and the Presidential order mentioning Article 19 as well
If any right existed before the commencement of the Constitution and the same right with its same content is conferred by Part III as a fundamental right the source of that right is in Part III and not in any pre existing right
Such pre Constitution right has been elevated by Part III as a fundamental right
The pre existing right and the fundamental right have to be grouped together as a fundamental right conferred by the Constitution
See Dhirubha Devisingh Gohil vs The State of Bombay3
If there is a pre Constitution right which is expressly embodied as a fundamental right under our Constitution the common law right has no separate existence under our Constitution
See B Shanknra Rao Badami  Ors
vs State of Mysore  Anr4
If there be any right other than and more extensive than the fundamental right in Part III such right may continue to exist under Article 372
1 at 988 89
2 1964 1 section C R 332
3  at 693 97
4 19691 3 section C R 1 at 11 13 231 Before the commencement of the Constitution the right to personal liberty was contained in Statute law eg the Indian Penal Code the Criminal Procedure Code as also in the common law of Torts
In the event of any wrongful infringement of the right to personal liberty the person affected could move a competent court by way of a suit for false imprisonment and claim damages
Suits for false imprisonment are one of the categories of law of Torts
The common law of Torts prevailed in our country before the Constitution on the basis of justice equity and good conscience
See Waghela Rajsanji vs Shiekh Masludin  Ors1 Satish Chandra Chakravarti vs Ram Doyal Deo and Baboo so Thakur Dhobi vs Mt Subanshi wo Mangal Dhobi3
This principle of justice equity and good conscience which applied in India before the Constitution is generally known as the English Common Law
Apart from the law of Torts there was no civil remedy for unlawful infringement of the right to personal liberty in India before the Constitution
After the amendment of section 491 of the Code of Criminal Procedure in 1923 the right to obtain a direction in the nature of a habeas corpus became a statutory right to a remedy in India
After 1923 it was not open to any party to ask for a writ of habeas corpus as a matter of common law
See Makhan Singh s case supra at pp 818 19 District Magistrate Trivandrum vs K C Mammen Mappillai4 Matthen vs District Magistrate Trivandrum5 Girindra Nath Banerjee s case supra and Sibnath Banerjee s case supra
The provisions of section 491 of the Criminal Procedure Code have been repealed recently as being superfluous in view of Article 226
See 41st Report of Law Commission of India Vol1 p 307
The present appeals arise from petitions filed in High Courts for writs in the nature of habeas corpus
The statutory right to remedy in the nature of habeas corpus under section 491 of the Criminal Procedure Code cannot be exercised now in view of the repeal of that section
Even if the section existed today it could not be exercised as a separate right distinct from the fundamental right the enforcement of which is suspended by the Presidential order as was held by this Court in Makhan Singh case supra at pp
818 825
There was no statutory right to enforce the right to personal liberty other than that in section 491 of the Criminal Procedure Code before the commencement of the Constitution which could be carried over after its commencement under Article 372
Law means enacted law or statute law
See A K Gopalan s case supra at pp
112 199 276 277 288 307 308 309 321 322
It follows that law in Article 21 will include all post constitutional statute law including the Act in the present case and by virtue of Article 372 all pre constitutional statute law including the Indian Penal Code and the Criminal Procedure Code
The expression procedure established by law includes substantive as well as procedural law
See A K Gopalan s case supra at p 111 and section Krishnan  ors
vs The State of Madras6
It means 1 14 I A 59 at 96
2 ILR at 407 10 425
3 AIR 1942 Nag
4 ILR 5 LR 66 IA 222
6  at p 639
232 some step or method or manner of procedure leading upto deprivation of personal liberty
A law depriving a person of personal liberty must be a substantive and procedural law authorising such deprivation
It cannot be a bare law authorising deprivation of personal liberty
The makers of the Constitution had the Criminal Procedure Code in mind
The repealed Criminal Procedure Code as well as the present Criminal Procedure Code has substantive as well as procedural provisions
The 13 substantive as well 35 the procedural parts in a law depriving a person of personal liberty must be strictly followed
There is no distinction between the expression save by authority of law in Article 311 and the expression except by authority of law in Article 265
Laws under Article 311 must lay down a procedure containing reasonable restrictions
Law under Article 265 also lays down a procedure
Therefore there is no difference between the expression except according to procedure established by law in Article 21 and the expression save by authority of law in Article 311 or the expression except by authority of law in Article 265
When Article 21 was enacted it would be a blunder to suggest that the founding fathers only enshrined the right to personal liberty according to procedure and not frame the constitutional mandate that personal liberty could not be taken except according to law
The Attorney General rightly submitted at the outset that Article 21 confers a fundamental right against the Executive and law in that Article means State law or statute law
In the present appeals the respondents allege that section 3 of the Act has not been complied with
In the present appeals the Act is not challenged nor can it be challenged on the ground of infringement of Article 19 by reason of Articles 358 3591 and the Presidential order
It has been pointed out earlier that non compliance with the provisions of the Act cannot be challenged as long as the Presidential order is in force
Article 20 states that no person shall be prosecuted and published for the same offence more than once
The present appeals do not touch any aspect of Article 20
The reason why reference is made at this stage to Article 20 is to show that Article 20 is a constitutional mandate to the Judiciary and Article 21 is a constitutional mandate to the Executive
The respondents contend that State in Article 12 will also include the Judiciary and Article 20 is enforceable against the Judiciary in respect of illegal orders
The answer is that Article 20 is a prohibition against the Judiciary in the cases contemplated there
If a person is detained after the Judiciary acts contrary to the provision in Article 20 such detention cannot be enforced against the Judicially
In the event of the Judiciary acting contrary to the provisions in Article 20 such detention can be challenged by moving the court against the Executive for wrongful detention or conviction or punishment as the case may be
The expression No person shall be prosecuted for the same offence more than once in Article 20 would apply only to the Executive The decision in Makhan Singh s case supra is that fundamental rights cannot be enforced against the Judiciary in case of illegal 233 orders
The decision in Ram Narayan Singh vs The State of Delhi  Ors1 is no authority for the proposition that fundamental rights can be enforced against the Judiciary
This Court held that the detention of Ram Narayan was illegal because Ram Narayan was being detained without any order of remand by the Magistrate
In Ram Narayan s case supra there was no aspect of the bar
under Article 359
It is not correct to say that the suspension of fundamental rights or of their enforcement can increase the power of the Executive
The effect of suspension or enforcement of fundamental rights is that an individual cannot move any court for the enforcement of his fundamental right to personal liberty for the time being
Reference to Articles 256 265 and 361 has make by the respondents to show that Article 21 is not the repository of rights to life and liberty
These references arc irrelevant
Article 256 do
not confer any right on any person
It deals with relations between the Union and the State
Article 265 has nothing to do with right to personal liberty
Article 361 3 refers to the issue of a process from any court which is a judicial act and not any Executive action
In any event these Articles have not relevance in the present appeals
Reference was made by the respondents to an accused filing appeal relating to criminal proceedings to show that Article 21 is not the sole respository of right to life and liberty
In a criminal proceeding the accused defends himself against the accusation of an offence against him
He does not move any court for the enforcement of his fundamental right of personal liberty
In an appellant against the order of conviction the accused challenges the correctness of the judicial decision
An appeal or revision is a continuation of  the original proceeding
See Garikapatti Veeraya vs N Subbiah Choudhury2 and Ahmedabad Mfg  Calico Pvt Co Ltd vs Ram Tahal Ramnand  Ors3
The respondents posed the question whether a decree given against the Government could be enforced because of the Presidential order
This is irrelevant
However a decree conclusively determines the rights of the parties in the suit and after a decree is passed the right of the decree holder is not founded on the right which is recognised by the decree but on the decree itself
This right arising from a decree is not a fundamental right and therefore will not be prima facie covered by a Presidential order under Article 3591
The other examples given by the respondents are seizure of property by Government requisition by Government contrary to Articles 31 and 191 f
If any seizure of property is illegal or in acquisition or requisition is challenged it will depend upon the Presidential order to find out whether the proceedings are for the enforcement of fundamental rights covered by the Presidential Order 1  2  3  234 Fundamental rights including the right to personal liberty are enforced by the Constitution
Any pre Constitutional rights which are included in Article 21 do not after the Constitution remain in existence which can be enforced if Article 21 is suspended
If it be assumed that there was any pre constitutional right to personal liberty included in Article 21 which continued to exist as a distinct and separate right then Article 3591 will be an exercise in futility
In Makhan Singh s case supra there was not suggestion that apart from Article 21 there was any common law or pre Constitution right to personal liberty
The theory of eclipse advanced on behalf of the respondents is untenable
Reliance was placed on the decision in Bhikaji Narain Dhakras  Ors
vs The State of Madhya Pradesh  Anr1
The theory of eclipse refers to pre constitutional laws which were inconsistent with fundamental right
By reason of Article 13 1 such laws could not become void but became devoid of legal force
Such laws became eclipsed for the time being
The theory of eclipse has no relevance to the suspension of the enforcement of fundamental rights under Article 359 1 
The constitutional provisions conferring fundamental rights cannot be said to be inconsistent with Article 13 1 
Article 21 is not a common law right
There was no pre existing common Law remedy to habeas corpus
Further no common law right which correspond s to a fundamental right can exist as a distinct right
apart from the fundamental right
See Dhirubha Devisingh Gohil s vs The State of Bombay supra and B Shankar Rao Badami s  case supra
In Gohil s case supra the validity of the Bombay Act of 1949 was challenged on the ground that it took away or abridged fundamental rights conferred by the Constitution
The Act was held to be beyond question in view of Article 31 B which had been inserted in the Constitution by the First Amendment and the Act being mentioned as Item 4 of the 9th Schedule
It was said that one of the rights secured by Part III of our Constitution is a right that the property shall be acquired for a public purpose and under a law authorising such acquisition and providing for compensation
That is also the very right which was previously secured to a person under section 299 of the Government of India Act 1935
is Court said that what under the Government of India Act was a provision relating to the competency of the Legislature was also clearly in the nature of a right of the person affected
The right under Article 299 which was pre existing became along with other fundamental rights for the first time secured by our Constitution when grouping them together as fundamental rights
The respondents gave the example that although section 122 of the Act makes it obligatory on the Executive to revoke the detention order and if the Executive does not do so such Executive action will amount to non compliance with the Act
Here again the detenu 1  235 cannot enforce any statutory right under the Act for the same reason that it will amount to enforce his fundamental right to personal liberty by contending that the Executive is depriving him of his personal liberty not according to procedure established by law
Similarly the example given of an illegal detention of a person by a Police officer will be met with the same plea
An argument was advanced on behalf of the respondents that if n pre existing law is merged in Article 21 there will be conflict with Article 372
The expression law in force in Article 372 cannot include laws which are incorporated in the Constitution viz in Part III
The expression law in Articles 191 and 21 takes in statute law
The respondents contended that permanent law cannot be repealed by temporary law
The argument is irrelevant and misplaced
The Presidential order under Article 3591 is not a law
The order does not real any law either
The suggestion that Article 21 was intended to afford protection to life and personal liberty against violation lay private individuals was rejected in Shamdasani s case supra because there cannot be any question of one private individual being authorised by law to deprive another of his property or taking away the life and liberty of any person by procedure established by law
The entire concept in Article 21 is against Executive action
In Vidya Verma s case supra this Court said that there is no question of infringement of fundamental right under Article 21 where the detention complained of is by a private person and not by a State or under the authority or orders of a State
The Act in the present case is valid law and it has laid down procedure of applying the law
The validity of the Act has not been challenged and cannot be challenged
The Legislature has competence to make the law
The procedure therefore
cannot be challenged because Articles 21 and 22 cannot be enforced
The suggestion of the respondents that the power of the Executive is widened is equally untenable
The suggestion on behalf of the respondents that the right to private defence is available and if any one resorted to private defence in resisting detention there might be civil war is an argument to excite emotion
If there are signs of civil wars as the respondents suggestion it is for the Government of our country to deal with the situation
It is because of these aspects that emergency is not justifiable because no court can have proper standard to measure the problems of emergency in the country
If any person detained finds that the official has the authority to arrest him no question of resistance arises and if there is no authority the same cannot be challenged during the operation of the Presidential order but the person shall have his remedy for any false imprisonment after the expiry of the Presidential order
The respondents submitted that if Article 21 were the repository of a right to personal liberty it would mean that Article 21 destroyed pre existing rights and then made a fresh grant
There is no 236 question of destruction of any right
Our fundamental rights came into existence for the first time under the Constitution
The fact that section 491 of the old Criminal Procedure Code has been abolished in the new Code establishes that the pre existing right was embodied as a fundamental right in the Constitution
The right to personal liberty because identified with fundamental right to personal liberty under Article 21
The third question is whether Rule of law overrides the Presidential Order
The Presidential Order does not alter or suspended any law
The Rue of law is not a mere catchword or incantation
Rule of Law is not a law of nature consistent and invariable at all times and in all circumstances
The certainly of law is one of the elements in the concept of the Rule of law but it is only one element and taken by itself affords little guidance
The essential feature if Rule of law is that the judicial power of the state is to a large extent separate from the Executive and the Legislature
The Rule of Law us a normative as much as it is a descriptive term
It expresses an ideal as much as a juristic fact
The Rule of Law is nit identical with a free society
If the sphere of the Rule of Law involves what can be called the Existence of the Democratic system it means two things
In the first place the individual liberties of a democratic system involves the right of the members of each society to choose the Government under the which they lie
In the second place come freedom of speech freedom of assembly and freedom f association
These are not absolute tights Their exceptions are justified by the necessity if reconciling the claims of different individuals to those rights The criterion whereby this reconciliation an be effected is the concern of law to ensure that the status and dignity of all individuals is to the greatest possible extent observed
Freedom of speech may be limited by conception as clear present danger attack on the free democratic order
The institutions and procedures by which the fundamental regard for the status and dignity of the human person an be effected is that rights and remedies are complimentary to the other The phrases such as equality before law or equal protection of the laws are in themselves equivocal
The supremacy of the law means that the faith of civil liberty depends on the man who has to administer civil liberty much more than on any legal formula
Aristotle pointed out that the rigid certainty of law is not applicable to all circumstances
this plea would be echoed by the modern administrator called upon to deal with the ever changing circumstances of economic and social life of the nation
The respondents contend that all executive actions which operate to the prejudice of any person must have the authority of law to support it
Reliance is placed on the decisions in Rai Sahib Ram Jawaya Kapur Ors
vs The State of Punjab1 MP State vs Bharat Singh 2 Collector vs Ibrahim  Co 3 Bennet Coleman  Co vs Union of 1 2  3 237 India1 and Meenakshi Mills vs Union of India2
This is amplified by the respondents to mean that the Executive cannot detain a person otherwise than under any legislation and on the suspension of Article 21 or the right to enforce it the Executive cannot get any right to act contrary to law
The Executive cannot detain a person otherwise than under valid legislation
The suspension of any fundamental right does not effect this rule of the Constitution
In normal situations when there is no emergency and when there is no Presidential order of the type like the present tile situation is different
In Bharat Singh s case supra this Court was concerned with the pre emergency law and an order of the Executive thereunder
It was held that the pre emergency law was void as violative of Article 19 and therefore such a law being pre emergency law could not claim the protection under Article 358
The ratio in Bharat Singh s case supra is this Executive action which operates to the prejudice of any person must have the authority of law to support it
See also Ram Jawaya Kapur s case supra
The provisions of Article 358 do not detract from that rule
Article 358 expressly authorises the State to take legislative or Executive action provided such action was competent for the State to make or take but for the provisions contained in Part III of our Constitution
Article 358 permits an Executive action under a law which may violate Article 19 but if the law is void or if there be no law at all the Executive action will not be protected by Article 358
Bharat Singh s case supra considers the effect of Article 358 so far the Executive action is concerned but was not concerned with any Executive action taken infringing any fundamental right mentioned in a Presidential order under Article 359 1 
Ibrahim s case supra the Bannett Coleman case supra and the Meenakshi Mill s case supra follow Bharat Singh s case supra regarding the proposition that the terms of Article 358 do not detract from the position that the Executive cannot act to the prejudice of a person without the authority of law
The ratio in Bharat Singh s case supra is that the Madhya Pradesh Public Security Act was brought into force before the Emergency Article 358 empowers the legislature to make a law violating Article 19
Article 358 does not mean that a pre emergency law violating Article 19 would have constitutional validity during the period of emergency
The Executive action which was taken during the emergency on the basis of the pre emergency law did not have the authority of law inasmuch as the Madhya Pradesh Act of 1959 was a void law where it was enacted in violation of Article 19
In Ibrahim s case supra is the Sugar Control order 1963 permitted allocation of quotas of sugar
The State Government ordered that the sugar allocated to the two cities of Hyderabad and Secunderabad were entirety to be given to the Co operative Stores
Under Article 1 1973 2 section C R 757
2 238 358 the respondents there could not challenge an Executive action which but for the provisions contained Article 19 the State was competent to take
But the Executive order there was one which had the effect canceling the licenses of the respondents which could be done only after an enquiry according to the procedure prescribed in the order
The Executive order there was contrary to the provisions contained in the Sugar Control order
In other words the Executive action which was in breach of the order could not be immune from attack under Article 358
In the Bennet Coleman case supra it was said that the Newsprint Control order could not authorise the number of pages
In the Meenakshi Mill case supra it was said that the Yarn Control order could not be resisted on the ground that it had no direct impact on the rights of the mills
In these four cases referred to there was no question of enforcement of fundamental right mentioned in the Presidential order
These four cases were not concerned with any Executive action taken infringing any fundamental right mentioned in a Presidential order under Article 359
The suspension of right to enforce fundamental right has the elect that the emergency provisions in Part XVIII are by themselves the rule of law during times of emergency
There cannot be any rule of law other than the constitutional rule of law
There cannot be any pre Constitution or post Constitution Rule of Law which can run counter to the rule of law embodied in the Constitution nor can there be any invocation to any rule of law to nullify the constitutional provisions during the times of emergency
The respondents relied on the decision in Eshugbayi Eleko vs officer Administering the Government of Nigeria1 support of the proposition that Rule of Law will always apply even when there is Presidential order
It has to be realised that the decision in Eshuqbavi Eleko cannot over reach our Constitution
Article 358 does not permit the Executive action to have the authority of law
Article 359 prevents the enforcement of the fundamental rights mentioned in the Presidential order
It bars enforcement against any legislation or executive action violating a fundamental right mentioned in the Presidential order
The principle in Eshugbayi Eleko s case supra will not apply where Article 359 is the paramount and supreme law of the country
There is no question of amendment of the concept of rule of law or any suggestion of destruction of rule of law as the respondents con tended because the Presidential order under Article 359 neither nullifies nor suspends the operation of any law
The consequence of the Presidential order is of a higher import than the suspension of any law because the remedy for the enforcement of fundamental rights is barred for the time being because of grave emergency
1  239 The respondents contend that if an individual officer acts outside his authority it will be an illegal act and the High Court under Article 226 can deal with it
Reliance is placed on the English decision in Christie  Anr
vs Leachinsky1 in support of the proposition that the action of an individual officer will be an Executive action when he acts within the scope of his authority
 The decision in Leachinsky s case supra is an action for false imprisonment and damages against two persons of Liverpool City Police for wrongfully arresting a person without informing that person of the grounds for arrest
That case has no relevance here
An individual officer acting within the scope of his official duty would not cease to be so if he makes an order which is challenged to be not in compliance with the statute under which he is authorised to make the order 
Any challenge to the order of detention would come within the fold of breach of fundamental right under Article 21 namely deprivation of personal liberty
The obligation of the Executive to act in accordance with the Act is ail obligation as laid down in Article 21
If such an obligation is not performed the violation is of Article 21
It will mean that the right of the person affected will be a violation of fundamental right
The expression for any other purpose in Article 226 means for any purpose other than the enforcement of fundamental rights
A petition for habeas corpus by any person under Article 226 necessarily involves a question whether the detention is legal or illegal
An Executive action if challenged to be ultra vires a statute cannot be challenged by any person who is not aggrieved by any such ultra vires action
Section 18 of the Act has been argued by the respondents to mean that a malafide order of detention cannot be regarded as an order made under the Act
Section 18 has also been challenged to suffer from the vice of excessive delegation
Section 18 has been amended by the words in respect of whom an order is made or purported to be made under section 3 in substitution of the words detained under this Act
The result is that no person in respect of whom and order is made or purported to be made under section 3 shall have any right to personal liberty by virtue of natural law or common law if any
It has been earlier held that there is no natural law or common law right to habeas corpus
The respondents rely on the decisions in Poona Municipal Corporation vs D N Deodher2 Kala Bhandar vs Munc
Committee3 Indore Municipality vs Niyamatulla4 and Joseph vs Joseph5 in support of the proposition that the expression purports means has the effect of
The respondents contend that 1  2  3  4 A I R 5 240 Section 18 of the Act can apply only when a valid order of detention is made
If the section be interpreted to include malafide orders or orders without jurisdiction then it is said that such interpretation will prevail upon the judicial power and violate Article 226
The expression purported to be done occurs is section 80 of the Code of Civil Procedure
The expression purported to be made under section 3 of the Act in section 18 will include an executive act made by the District Magistrate within the scope of his authority as District Magistrate even if the order is made in breach of the section or is mala fide
See Hari Singh vs The Crown1 Bhagchand Dagadusu vs Secretary of State for India2 Albert West Meads vs The King3 Anisminic vs Foreign Compensation etc4 and Dakshina Ranjan Ghosh vs Omar Chand Oswal5
As long as the District Magistrate acts within the scope of his authority as a District Magistrate an order passed by him is an order made or purported to be made under section 3 of the Act
The section applies to any person in respect of whom an order as been made or purported to be made
There is no question of excessive delegation
Section 18 of the Act lays down the law
Section 18 of the Act is only an illustration of an application of the act by the officers authorised by the Act
Section 18 identifies the person to whom it applies and in what cases it applies to such a person
The word purport covers acts alleged to be malafide
The decisions to which reference has been made indicate that the acts whatever their effect be are all acts made or purported to be made under the Act
A contention is advanced by the respondents that section 18 of the Act will apply only to post detention challenge
This is wrong
Sec lion 18 applies to all orders of detention
Counsel on behalf of the respondents submitted that the High Courts had only heard the matters on preliminary points and not on the area of judicial scrutiny and therefore this Court should not express any view on the latter question
There are three principal grounds why this Court should express views
First
The Bombay High Court Nagpur Bench has read down section 16A9 of the Act
One of the appeals is from the judgment of the Bombay High Court Nagpur Bench
This judgment directly raises the question of section 16A9 of the Act
Second
The Additional Solicitor General made his submissions on this part of the case and all counsel for the respondents made their submissions in reply
Considerable time was spent on hearing submissions on both sides
Time of the Court is time of the nation
Third
It is only proper that when so much time has been taken on these questions this Court should express opinions and lay down areas for judicial scrutiny
1 2 L R 54 I A 338 at 352
3 AIR 1948 P C 156 at 157_59 4  at 212 13 237
5 I L R at 995 1003
241 The respondents contend that if the Presidential order does not bar the challenge on the ground that the orders are malafide or that the orders are not made in accordance with the Act the non supply of grounds will not affect the jurisdiction of the Court
It is said by the respondents that the scope of judicial scrutiny is against orders
The respondents submit that court has gone behind the orders of detention in large number of cases
The respondents submit as follows It is open to the Court to judge the legality of the orders
This the Court can do by going beyond the order
Though satisfaction is recorded in the order and such recording of satisfaction raises the presumption of legality of order the initial onus on a detenu is only to the extent of creating disquieting doubts in the mind of the Court
The doubts are that the orders are based on irrelevant non existing facts or on facts on which no reasonable person could be satisfied in respect of matters set out in section 3 of the Act
If such a prima facie case is established the burden shifts and the detaining authority must satisfy the court about the legality of detention and the detaining authority must remove doubts on all aspects of legality which have been put in issue
If the detaining authority for whatever reasons  fails to satisfy the court either by not filing an affidavit or not placing such facts which may resolve the doubts about the legality of detention the court may direct release of the detenus
The respondents submit that all that they want is that if the detenus challenge the orders to be malafide or to be not in compliance with the statute and if the court does not have any disquieting doubts the court will dismiss the petitions
If the court has any such doubt the court will call for the return
On a return being made if the court is satisfied that the return is an adequate answer the court will dismiss the petition
If the court wants to look into the grounds the court will ask for the production M the grounds and the court itself will look into the grounds but will not show the grounds to the detenus
In short the respondents submit that the jurisdiction of the court to entertain the application should not be taken away as a result of the Presidential order
F The appellants submit that if Article 359 is not a bar at the threshold and if the Court can entertain a petition judicial review should be limited within a narrow area
In the forefront 16A9 of the Act is put because that section forbids disclosure of grounds and information in the possession of the detaining authority
The Nagpur Bench of the Bombay High Court read down section 16A9 but the Additional Solicitor General submitted that section 16A9 should not be read down because it enacts a rule of evidence
The Additional Solicitor General submitted as follows the scrutiny by courts will extend to examining first whether detention is in exercise or purported exercise of law
That will be to find out whether there is a legal foundation for detention
The second enquiry will be whether the law is valid law
If it is a pre emergency law the same can be tested as to whether it was valid with reference to Articles 18 833Sup
CI76 242 14 19 21 and 22
If it is an emergency legislation the validity of law cannot be gone into first because of Article 358 and second because of the Presidential order under Article 359
The other matters which the court may examine are whether the detaining authority is a competent authority under the law to pass the order whether the detenu has been properly identified whether the stated purpose is one which ostensibly conforms to law and whether the procedural safeguards enacted by the law are followed
With regard to grounds of detention it is said by the Additional Solicitor General that if the grounds are furnished or are required to be furnished the Court can examine whether such grounds ex facie justify reasonable apprehension of the detaining authority
Where the grounds are not to be furnished it is said that this enquiry does not arise
The Additional Solicitor General submits that judicial scrutiny cannot extend to three matters first objective appraisal of the essential subjective satisfaction of the detaining authority second examination of the material and information before the detaining authority for the purpose of testing the satisfaction of the authority and third directing compulsory production of the file relating to detenu or drawing and adverse inference from the non production thereof
Material and information on which orders of preventive detention are passed necessarily belong to a class of documents whose disclosure would impair the proper functioning of public service and administration
The file relating to a detention order must contain intelligence reports and like information whose confidentiality is beyond reasonable question
This was the view taken in the Live sidge 1 case
See also Rogers2 case
If privilege were to be claimed in each case such a claim would in terms of sections 123 and 162 of the Evidence Act have been invariably upheld
Article 22G also contemplates such claims on behalf of the State
That is why instead of leaving it to individual decision in each case or to the discretion of individual detaining authorities to make a claim for privilege the legislature has enacted section 16A9 providing for a general exclusion from evidence of all such material as would properly fall within the classification
Section 16A cannot be said to be an amendment to Article 226
The jurisdiction to issue writs is neither abrogated nor abridged
A claim of privilege arises in regard to documents or information where a party to a suit or proceeding is called upon to produce evidence
Section 16A9 enacts provisions analogous to a conclusive proof of presumption
Such a provision is a genuine rule of evidence
It is in the nature of an Explanation to sections 123 and 162 of the Evidence Act
Section 16A9 is a rule of evidence
Therefore when the detaining authority is bound by section 16A9 and forbidden absolutely from disclosing such material no question can arise for adverse inference against the authority
If a detenu makes out a prime facie case and the court calls for a return the affidavit of the 1 19421 A C 206 at 221 253 254 266 267 279 and 280 2 at 400 401 and 405
243 authority will be an answer
The Court cannot insist on the production of the file or hold that the case of the detenu stands unrebutted by reason of such non disclosure
To hold otherwise would be to induce reckless averments of malafides to force production of the file which is forbidden by law
Section 16A9 cannot be read down implying an exception in favour of disclosure to the Court as was suggested by the Bombay High Court Nagpur Bench
Such disclosure to the court alone and not to the detenu will introduce something unknown to judicial procedure
This will bring in an element of arbitrariness and preclude both parties from representing their respective cases
Further it would substitute or super impose satisfaction of the Court for that of the Executive
This Court has held that the view of the detaining authority is not to be substituted by the view of the court
See State of Bombay vs Atma Ram Sridhar Vaidya 1 Shibban Lal Saksena vs The State of Uttar Pradesh  Ors2
 Rarneshwar Shaw vs District Magistrate Burdwan  Anr
3 Jaichand Lal vs W Bengal4 and Ram Manohar Lohia s case supra
The theory of good return mentioned in the English decisions is based on the language of Habeas Corups Act and the Rules of the Supreme Court of England
The practice of our Court is different
The respondents relied on M M Damnoo vs J  K State5 in support of the proposition that the file was produced there and also contended that section 16A9 can be struck down as happened in A K Gopalan s case supra where section 14 of the Preventive Detention Act was struck down
When A K Gopalan s case supra was decided Article 22 was in force
Prevention of court from on seeing the grounds contravened Article 22
There was no question of privilege
Section 14 of the Preventive Detention Act in A K Gopalan s case supra offended Article 22
See A K Gopalan s case 1950 section C R 88 at 130 217 242 283 84 332 33
In Damnoo s case supra there was no question of privilage
The file was produced but there was no direction of the court to produce the file
Second
There was no aspect of Article 359
Third
In Damnoo s case supra the analogy of section 14 of the Preventive Detention Act in Gopalan s case was considered
No provision like section 16A9 was on the scene
Fourth The State did not rely on the proviso to section 8 of the relevant Act there to contend that the file could not be produced
Section 16A9 of the Act contains definite indications of implied exclusion of judicial review on the allegations of malafide
It is not possible for the court to adjudicate effectively on malafides
The reason why section 16A has been enacted is to provide for periodi 1  2  3  4 1966 Supp
section C R 464
5  244 cal review by Government and that is the safeguard against any unjust or arbitrary exercise of power
It will be useless to attempt to examine the truth of the fact alleged in the order in a case when the fact relates to the personal belief of the relevant authority formed at least partly on grounds which he is not bound to disclose
It is not competent for the court to decide whether the impugned order of detention under section 31 or the declaration under section 16A2 and 3 or the Act during the emergency is a result of malice or ill will
The reason is that it is not at all possible for the court to call for and to have a look at the grounds of the order of detention under section 31 or the declaration under section 16A2 and 3 of the Act that induced the satisfaction in the mind of the detaining authority that it was necessary to detain the person or to make a declaration against him
The grounds of detention and any information or materials on which the detention and the declaration were made are by section 16A9 of the Act confidential and deemed to refer to matters of State and to be against public interest to disclose
No one under the provisions of the Act and in particular section 16A9 thereof shall communicate or disclose such grounds materials or information except as provided in section 16A5 and 8 of the Act
Sub sections 5 and 8 have no application in these cases
The court cannot strike down the order as vitiated by malafide and grant relief since it is not possible for the court without the examination of such grounds materials and information to decide whether the order of detention is the result of malice or ill will
When the court cannot give any relief on that basis the contention of malafides is not only ineffective but also untenable
See Lawrence Joachim Joesph D Souza vs The State of Bombay1
The provision for periodical review entrusted to the Government under section 16A4 of the Act in the context of emergency provides a sufficient safeguard against the misuse of power of detention or arbitrary malafide detention during the emergency
The Government is in full possession of the grounds materials and information relating to the individual detentions while exercising the power of review
The jurisdiction of the court in times of emergency in respect of detention under the Act is restricted by the Act because the Government is entrusted with the task of periodical review
Even if the generality of the words used in section 31 of the Act may not be taken to show an intention to depart from the principle in ordinary times that the courts arc not deprived of the jurisdiction where bad faith is involved there are ample indications in the provisions of the Act viz section 16A2 proviso to section 16A3 section 16A4 section 16A5 section 16A7ii and section 16A9 of the Act to bar a challenge to the detention on the basis of mala 1  at 392 93
245 fides
See Smith vs East Elloe Rural District Council  Ors1 and Ram Manohar Lohia s case supra at 716 732
This Court said that an action to decide the order on the grounds of malafides does not lie because under the provisions no action is maintainable for the purpose
This Court also referred to the decision in the Liversidge case supra where the Court held that the jurisdiction of the court was ousted in such way that even questions of bad faith could not be raised
The production of the order which is duly authenticated constitutes a peremptory answer to the challenge
The onus of showing that the detaining authority was not acting in good faith is on the detenu
This burden cannot be discharged because of the difficulty of proving bad faith in the exercise of subjective discretionary power vested in the administration
De Smith in his Judicial review of Administrative Actions 1973 Edition at page 257 seq
has said that the reservation for the case of bad faith in hardly more than a formality
Detenu will have to discharge the impossible burden of proof that the detaining authority did not genuinely believe he had reasonable cause In Lawrence Joachim Joseph D Souza s case supra malafide exercise of power was untenable having regard to the grounds on which detention was based
In the context of emergency section 3 1 of the Act confers an unlimited discretion which cannot be examined by courts
This rule of construction of the phrases is satisfied in the opinion of it appears to be has reason to believe adopted by courts in times of national emergency will be rendered nugatory and ineffective if allegations of malafides are gone into
A distinction is to be drawn between purpose and motive so that where an exercise of power fulfils the purpose for which power was given it does not matter that he who exercised it is influenced by an extraneous motive because when an act is done which is authorised by the Legislature it is not possible to contest that discretion
So long as the authority is empowered by law action taken to realise that purpose is not malafide
when the order of detention is on the face of it within the power conferred the order is legal
The width and amplitude of the power of detention under section 3 of the Act is to be adjudged in the context of the emergency proclaimed by the President
The Court cannot compel the detaining authority to give the particulars of the grounds on which he had reasonable cause to believe that it was necessary to exercise this control
An investigation into facts or allegations of facts based on malafides is not permissible because such a course will involve advertence to the grounds of detention and materials constituting those grounds which is not competent in the context of the emergency
For the foregoing reasons the conclusions are as follows First
In view of the Presidential order dated 27 June 1975 under clause 1 of Article 359 of our Constitution no person has locus 1  at 776
246 standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to enforce any right to personal liberty of a person detained under the Act on the grounds that the order of detention or the continued detention is for any reason not under or in compliance with the Act or is illegal or malafide
Second
Article 21 is the sole repository of rights to life and personal liberty against the State
Any claim to a writ of habeas corpus is enforcement of Article 21 and is therefore barred by the Presidential order Third
Section 16A9 of the Act is valid
It is a rule of evidence and it is not open either to the detenu or to the court to ask for grounds of detention
Fourth
It is not competent for any court to go into questions of malafides of the order of detention or ultra vires character of the order of detention or that the order was not passed on the satisfaction of the detaining authority
The appeals are accepted
The judgments of the High Courts are set aside
KHANNA J Law of preventive detention of detention without trial is an anathema to all those who love personal liberty
Such a law makes deep inroads into basic human freedoms which we all cherish and which occupy prime position among the higher values of life
It is therefore not surprising that those who have an abiding faith ill the rule of law and sanctity of personal liberty do not easily reconcile themselves with a law under which persons can be detained for long periods without trial
The proper forum for bringing to book those alleged to be guilty of the infraction of law and commission of crime according to them is the court of law where the correctness of the allegations can be gone into in the light of the evidence adduced at the trial
The vesting of power of detention without trial in the executive the assert has the effect of making the same authority both the prosecutor as well as the judge and is bound to result in arbitrariness
Those who are entrusted with the task of administering The land have another viewpoint
According to them although they are conscious of the value of human liberty they cannot afford to be obvious of the need of the security of the State or the maintenance of public order
Personal liberty has a value if the security of the State is not jeopardised and the maintenance of public order is not threatened
There can be the administrator assert no freedom to destroy 
Allegiance to ideals of freedom cannot operate in vacuum
Danger lurks and serious consequences can follow when thoughts become encysted in fine phrases oblivious of political realities and the impact of real politik
No government can afford to take risks in 247 matters relating to the security of the State
Liberty they accordingly claim has to be measured against community s need for security against internal and external peril
It is with a view to balancing the conflicting viewpoints that the framers of the Constitution made express provisions for preventive detention and at the same time inserted safeguards to prevent abuse of those powers and to mitigate the rigour and harshness of those provisions
The dilemma which faced the Constitution makers in balancing the two conflicting viewpoints relating to liberty of the subject and the Security of the State was not however laid to rest for good with the drafting of the Constitution
It has presented itself to this Court in one form or the other ever since the Constitution came into force
A K 
Gopalan s1 was he first case where in a Bench of six Judges of this Court dealt with the matter
Another Bench of seven Judges again dealt with the matter in 1973 in the case of Shambhu Nath Sarkar vs State of West Bengal  Ors2 In between a number of Benches have dealt with the various facets of the question one such facet has now presented itself to this Constitution Bench The question posed before us is whether in view of the Presidential order dated June 27 1975 under clause 1 of article 359 of the Constiution any petition under article 226 before a High Court for writ of habeas corpus to enforce the right of personal liberty of a person detained under the Act 26 of 1971 hereinafter referred to as MISA as amended is maintainable
A consequential question which may be numbered as question No 2 is if such a petition is maintainable what is the scope or extent of judicial scrutiny
The above questions arise in criminal appeals Nos 279 of 1975 355 and 356 of 1975 1845 49 of 1975 380 of 1975 1926 of 1975 389 of 1975 3 of 1976 41 of 1976 and 46 of 1976
These appeals have been filed against the orders of Madhya Pradesh High Court Allahabad High Court Karnataka High Court Delhi High Court Nagpur Bench of Bombay High Court and Rajasthan High Court whereby the High Courts repelled the preliminary objections relating to the maintainability of petitions under article 226 for writs of habeas corpus on account of Presidential order dated June 27 1975
On the second question some of the high Courts expressed the view that this was a matter which would be gone into while dealing with individual cases on their merits
The other High Courts went into the matter and expressed their view
This judgment would dispose of all the appeals
MISA was published on July 2 1971
Section 2 of the Act contains the definition clause
Section 3 grants powers to make orders for detaining certain persons and reads as under 3
1 The Central Government of the State Government may a if satisfied with respect to any person including a foreigner that with a view to preventing him from acting in any manner prejudicial to 1  2  248 1 the defence of India the relations of India with foreign powers or the security of India or ii the security of the State or the maintenance of public order or iiithe maintenance of supplies and services essential to the community or b if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India it is necessary so to do make an order directing that such person be detained
2 Any of the following officers namely a district magistrates b additional district magistrates specially empowered in this behalf by the State Government cCommissioners of Police wherever they have been appointed may if satisfied as provided in sub clauses ii and iii of clause a of sub section 1 exercise the power conferred by the said sub section
3 When any order is made under this section by an officer mentioned in sub section 2 he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter and no such order shall remain in force for more than twelve days after the making there of unless in the meantime it has been approved by the State Government Provided that where under section 8 the grounds of detention are communicated by the authority making the order after five days but not later than fifteen days from the dates of detention this sub section shall apply subject to the modification that for the words twelve days  the words twenty two days  shall be substituted
4 When any order is made or approved by the State Government under this section the State Government shall within seven days report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government have a bearing on the necessity for the order 249 Section 4 and 5 deal respectively with execution of detention orders and the power to regulate place and conditions of detention
According to section 6 detention orders are not to be invalidated or inoperative on the ground that the person to be detained is outside the limits of the territorial jurisdiction of the Government or officer making the order  or that the place of detention of such person is outside the said limits
Section 8 requires that the Grounds of order of detention should be disclosed to persons affected by the order and he should be granted the earliest opportunity of making a representation against the order
Section 9 deals with the constitution of Advisory Boards
Section 10 makes provision for reference to Advisory Boards
Section 11 prescribes the procedure of Advisory Boards and section 12 requires that action should be taken in accordance with the report of the Advisory Board
According to section 13 the maximum period of detention shall be 12 months from the date of detention
Section 14 confers power of revocation of detention orders
Section 15 confers power upon the appropriate Government to temporarily release the detained persons
Section 16 gives protection to action taken in good faith
Section 17 provides for detention up to two years in certain cases of foreigners
Section 18 which has subsequently been re numbered as section 19 provides for the repeal of the Maintenance of Internal Security ordinance and the saving clause
According to clause 1 of article 352 of the Constitution if the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened whether by war or external aggression or internal disturbance he may by Proclamation make a declaration to that effect
On December 3 1971 the President of India issued the following proclamation of emergency In exercise of the powers conferred by clause 1 of article 352 of the Constitution I V V Giri President of India by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by external aggression
V V Giri President Clause 1 of article 359 of the Constitution reads as under Where a Proclamation of Emergency is in operation the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order
 On November 16 1974 the President of India made the following order 250 In exercise of the powers conferred by clause 1 of article 359 of the Constitution the President hereby declares that a the right to move any count with respect to orders of detention which have already been made or which may hereafter be made under section 3 1 c of the as amended by ordinance 11 of 1974 for the enforcement of the rights conferred by article 14 article 21 and clauses 4 5 6 and 7 of article 22 of the Constitution and b all proceedings pending in any court for the enforcement of any of the aforesaid rights with respect of orders of detention made under the said section 31 c  shall remain suspended for a period of six months from the date of issue of this order or the period during which the Proclamation of Emergency issued under clause 1 of article 352 of the Constitution on the 3rd December 1971 is in force whichever period expires earlier
This order shall extend to the whole of the territory of India
 On June 20 1975 the President of India amended the above order by substituting twelve months for six months in the order
On June 25 1975 the President of India issued another proclamation of emergency and the same reads as under PROCLAMATION OF EMERGENCY In exercise of the powers conferred by clause 1 of article 352 of the Constitution I Fakhruddin Ali Ahmed President of India by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by internal disturbance
Sd F A Ahmed President New Delhi the 25th June 1975 On June 27 1975 the President of India made the following order exercise of the powers conferred by clause 1 of article 359 of the Constitution the President hereby declares that the right of any person including a foreigner to move any court for the enforcement of their rights conferred by article 14 article 21 and article 22 of the Constitution 251 and all proceedings pending in any court for the enforce h men of the above mentioned rights shall remain suspended for the period during which the Proclamation of Emergency made under clause 1 of article 352 of the Constitution on the 3rd December 1971 and on the 25th June 1975 are both in force
This order shall extend to the whole of the territory of India except the State of Jammu and Kashmir
This order shall be in addition to and not in derogation of any order made before the date of this order under clause 1 of article 359 of the Constitution On June 29 1975 another order was issued by the President whereby the words except the State of Jammu  Kashmir in the order dated June 27 1975 were omitted
On September 25 1975 another Presidential order was issued as a result of which the last paragraph in the Presidential order dated June 27 1975 was omitted
By Act 39 of 1975 Section 16A was introduced in MISA with effect from June 29 1975 and the same reads as under  16A 1 Notwithstanding anything contained in this Act or any rules of natural justice the provisions of this section shall have effect during the period of operation of the Proclamation of Emergency issued under clause 1 of article 352 of the Constitution on the 3rd day of December 1971 or the Proclamation of Emergency issued under that clause on the 25th day of June 1975 or a period of twelve months from the 25th day of June 1975 whichever period is the shortest
2 The case of every person including a foreigner against whom an order of detention was made under this Act on or after the 25th day of June 1975 but before the commencement of this section shall unless such person is sooner related from detention be reviewed within fifteen days from such commencement by the appropriate Government for the purpose of determining whether the detention of such person under this Act is necessary for dealing effectively with the emergency in respect of which the Proclamations referred to in sub section 1 have been issued hereinafter in this section referred to as the emergency and if on such review the appropriate Government is satisfied that it is necessary to detain such person for effectively dealing with the emergency that Government may make a declaration to that effect and communicate a copy of the declaration to the person concerned
3 When making an order of detention under this Act against any person including a foreigner after the commencement of this section the Central Government or the 252 State Government or as the case may be the officer making the order of detention shall consider whether the detention of such person under this Act is necessary for dealing effectively with the emergency and if on such consideration the Central Government or the State Government or as the case may be the officer is satisfied that it is necessary to detain such person for effectively dealing with the emergency that Government or officer may make a declaration to that effect and communicate a copy of the declaration to the person concerned
Provided that where such declaration is made by an officer it shall be reviewed by the State Government to which such officer is subordinate within fifteen days from 5 the date of making of the declaration and such declaration shall cease to have effect unless it is confirmed by the State Government after such review within the said period of fifteen days
4 The question whether detention of any person in respect of whom a declaration has been made under sub section 2 or sub section 3 continues to be necessary for effectively dealing with the emergency shall be reconsidered by the appropriate Government within four months from the date of such declaration and thereafter at intervals not exceeding four months and if on such re consideration it appears to the appropriate Government that the detention of the person is no longer necessary for effectively dealing with the emergency that Government may revoke the declaration
5 In making any review consideration or reconsideration under sub sections 2 3 or 4 the appropriate Government or officer may if such Government or officer considers it to be against public interest to do otherwise act on the basis of the information and materials in its or his possession without disclosing the facts or giving an opportunity of making a representation to the person concerned 6 In the case of every person detained under a detention order to which the provisions of sub section 2S apply being a person the review of whose case is pending under that sub section or inrespect of whom a declaration has been made under that sub section 1 section 8 to 12 shall not apply and ii section 13 shall apply subject to the modification that the words and figures which has been confirmed under section 12 shall be omitted
7 In the case of every person detained under a deten 253 tion order to which the provisions of sub section 3 apply being a person in respect of whom a declaration has been made under that sub section 1 section 3 shall apply subject to the modification that for sub sections 3 and 4 thereof the following sub section shall be substituted namely 3 when order of detention is made by a State Government or by an officer subordinate to it the State Government shall within twenty days forward to the Central Government a report in respect of the order ii section 8 to 12 shall not apply and iii section 13 shall apply subject to the modification that the words and figures which has been confirmed under section 12  shall be omitted
 Act 39 of 1975 also inserted section 18 with effect from June 25 1975 and the same reads as under 18
No person including a foreigner detained under this Act shall have any right to personal liberty by virtue of natural law or common law if any
 By the Constitution Thirty eighth Amendment Act 1975 clauses 4 and 5 which read as under were added in article 352 of the Constitution  4 The power conferred on the President by this article shall include the power to issue different Proclamation on different grounds being war or external aggression or internal disturbance or imminent danger of war or external aggression or internal disturbance whether or not there is a Proclamation already issued by the President under clause 1 and such Proclamation is in operation
5 Notwithstanding anything in this Constitution a the satisfaction of the President mentioned in clause 1 and clause 2 shall be final and conclusive and shall not be questioned in any court on any ground b subject to the provisions of clause 2 neither the Supreme Court nor any other court shall have jurisdiction to entertain any question on any ground regarding the validity of 1 a declaration made by Proclamation by the President to the effect stated in clause 1 or ii the continued operation of such Proclamation 254 Following clause 1A was also added after clause 1 of article 359 and the same reads as under 1A While an order made under clause 1 mentioning any of the rights conferred by Part III is in operation nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take but any law so made shall to the extent of the in competence cease to have effect as soon as the order aforesaid ceases to operate except as respects things done or omitted to be done before the law so ceases to have effect
 The Constitution Thirty ninth Amendment Act 1975 was published on August 10 1975 and inserted the as item 92 in the Ninth Schedule to the Constitution
On October 17 1975 ordinance 16 of 1975 was issued making further amendment in section 16A of MISA and the same read as under a for sub section 5 the following sub section shall be substituted namely 5 In making any review consideration or re consideration under sub section 2 sub section 3 or sub section 4 the appropriate Government or officer may act on the basis of the information and materials in its or his possession without communicating or disclosing any such information or materials to the person concerned or affording him any opportunity of making any representation against the making under sub section 2 or the making or confirming under sub section 3 or the non revocation under sub section 4 of the declaration in respect of him  b in sub section 7 in clause 1 1 in the opening portion for the words the following sub section  the words the following  shall be substituted ii in sub section 3 as substituted by that clause for the words forward to the Central Government a report in respect of the order  the words report the fact to the Central Government  shall be substituted iiiafter sub section 3 aforesaid the following shall be inserted namely 4 At any time after the receipt of a report under sub section 3 the Central Government may require the State Government to furnish to the Central Government the grounds on which the order has been made and such other particulars 255 as in the opinion of the State Government have a bearing on the necessity for the order  c after sub section 7 the following sub sections shall be inserted namely 8 in the case of any person in respect of whom a declaration has been made by a State Government under sub section 2 or a declaration has been made by a State Government or an officer subordinate to it or confirmed by the State Government under sub section 3 or a declaration has not been revoked by a State Government under sub section 4 the Central Government may whenever it considers it necessary so to do require the State Government to furnish to the Central Government the information and materials on the basis of which such declaration has been made or confirmed or not revoked as the case may be and such other information and materials as the Central Government may deem necessary
9 Notwithstanding anything contained in any other law or any rule having the force of law a the grounds on which an order of detention is made under sub section 1 of section 3 against any person in respect of whom a declaration is made under sub section 2 or sub section 3 and any information or materials on which such grounds or a declaration under sub section 2 or a declaration or confirmation under sub section 3 or the non revocation under sub section 4 of a declaration are based shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest Lo disclose and save as
Otherwise provided in this Act no one shall communicate or disclose any such ground information or material or any document containing such ground information or material b no person against whom an order of detention is made under sub section 1 of section 3 shall be entitled to the communication or disclosure of any such ground information or material as is referred to in clause a or the production to him of any document containing such ground information or material
 On November 16 1975 ordinance 22 of 1975 was issued making certain amendments in MISA
By section 2 of the ordinance the words twelve days and twenty days in sub section 3 of section 3 of MISA were substituted by the words twenty days and twentyfive days respectively
In section 14 of the principal Act following sub section was substituted for the original sub section 2 The expiry or revocation of a detention order hereafter in this sub section referred to as the earlier detention order shall not bar the making of another detention 256 order hereafter in this sub section referred to as the subsequent detention order under section 3 against the same person Provided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person the maximum period for which such person may be detained in pursuance of the subsequent detention order shall in no case extend beyond a period of twelve months from the date of detention under the earlier detention order or until the expiry of the Defence and Internal Security of India Act 1971 whichever is later
 Following sub section 2A was also inserted in section 16A of the principal Act 2A If the State Government makes a declaration under sub section 2 that the detention of any person in respect of whom a detention order is made by an officer subordinate to that Government is necessary for dealing effectively with the emergency the State Government shall be deemed to have approved such detention order and the provisions of sub section 3 of section 3 in so far as they relate to the approval of the State Government and of sub section 4 of that section shall not apply to such detention order
 The amendments made by the ordinance were given retrospective effect for the purpose of validating all acts done previously
During the pendency of these appeals the Maintenance of Internal Security Amendment Act 1976 Act 14 of 1976 was published on January 25 1976
This amending Act incorporated and in same respects modified the changes which had been brought about in the principal Act by ordinance 16 of 1975 and ordinance 22 of 1975
Section 2 and 3 of the amending Act incorporate the changes which had been introduced by sections 2 and 3 of ordinance 22 of 1975
At the same time sections 2 and 3 of the amending Act make it clear that substitution brought about by those sections shall be with effect from June 29 1975
Sections 4 5 and 6 of the amending Act read as under 4
In section 16A of the principal Act a after sub section 2 the following sub section shall be inserted and shall be deemed to have been inserted with effect from the 29th day of June 1975 namely 2A If the State Government makes a declaration under sub section 2 that the detention of any person in respect of whom a detention order is made by an officer subordinate to that Government is necessary for dealing effectively with the emergency the State Government shall be 257 deemed to have approved such detention order and the provisions of sub section 3 of section 3 in so far as they relate to the approval of the State Government and of sub section 4 of that section shall not apply to such detention order  b for sub section 5 the following sub section shall be substituted and shall be deemed to have been substituted with effect from the 29th day of June 1975 namely 5 In making any review consideration or reconsideration under sub section 2 sub section 3 or sub section 4 the appropriate Government or officer may act on the basis of the information and materials in its or his possession without communicating or disclosing any such information or materials to the person concerned or affording him any opportunity of making any representation against the making under sub section 2 or the making or confirming under sub section 3 or the non revocation under sub section 4 of the declaration in respect of him
 c in sub section 7 in clause 1 1 in the opening portion for the words the following sub section  the words the following  shall be substituted and shall be deemed to have been substituted with effect from the 29th day of June 1975 ii in sub section 3 as substituted by that clause for the words forward to the Central Government a report in respect of the order  the words report the fact to the Central Government  shall be substituted E and shall be deemed to have been substituted with effect from the 29th day of June 1975 iiiafter sub section 3 aforesaid the following shall be inserted
and shall be deemed to have been inserted with effect from the 17th day of October 1975 namely 4 At any time after the receipt of a report under sub section 3 the Central Government may require the State Government to furnish to the Central Government the grounds on which the order has been made and such other particulars as
in the opinion of the State Government have a bearing on the necessity for the order  d after sub section 7 the following sub sections shall be inserted and shall be deemed to have been inserted with effect from the 29th day  of June 1975 namely 8 In the case of any person in respect of whom a declaration has been made by a State Government under sub section 2 or a declaration has been made by a State Government or an officer subordinate to it or confirmed by the State Government under sub section 3 or a declaration has not been revoked by a State Government under sub sec 19 833 SCI76 258 tion 4 the Central Government may whenever it considers it necessary so to do require the State Government to furnish to the Central Government the information and materials on the basis of which such declaration has been made or confirmed or not revoked as the case may be and such other information and materials as the Central Government may deem necessary
9 Notwithstanding anything contained in any other law or any rule having the force of law a the grounds on which an order of detention is made or purported to be made under section 3 against any person in respect of whom a declaration is made under sub section 2 or sub section 3 and any information or materials on which such grounds or a declaration under sub section 3 or the non revocation under sub section 4 of a declaration are based shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose and save as otherwise provided in this Act no one shall communicate or disclose any such ground information or immaterial or any document containing such ground information or material b no person against whom an order of detention is made or purported to be made under section 3 shall be entitled to the communication or disclosure of any such ground information or material as is referred to in clause a or the production to him of any document containing such ground information or material  5
In section 18 of the principal Act for the words detained under this Act  the words and figure in respect of whom an order is made or purported to be made under section 3  shall be substituted and shall be deemed to have been substituted with effect from the 25th day of June 1975
Any act or thing done or purporting to have been done before the 16th day of November 1975 under the principal Act in respect of any person against whom an order of detention was made under that Act on or after the 25th day of June 1975 or in respect of any such order of detention shall for all purposes be deemed to be as valid and effective as if the amendments made to the principal Act by sections 2 and 3 and clause a of section 4 of this Act had been in force at all material times During the pendency of these petitions under article 226 of the Constitution of India before the High Courts for issue of writs of habeas corpus it was contended on behalf of the Union of India and the States that in view of the Presidential order dated June 27 1975 under article 359 suspending the right of all persons to move any court for the enforcement of the rights conferred by articles 14 21 and 22 of the Constitution petitions for issue of writs of habeas corpus were not maintainable
Particular stress was laid upon the fact that 259 the right to move the court for enforcement of the right under article 21 had been suspended and as such no petition for a writ of habeas corpus could be proceeded with
The above mentioned Presidential order was stated to be an absolute bar to the judicial security of the detention orders
This contention did not find favour with the High Courts and they held that despite the said Presidential order the petitions were maintainable and could be proceeded with
Although opinions were not unanimous on the point as to whether the High Courts should without examining the individual facts of each case go into the question of the area of the judicial scrutiny and if so what was the area of the judicial scrutiny all the nine High Courts which dealt with the matter came to the conclusion that the Presidential order did not create an absolute bar to the judicial scrutiny of the validity of the detention
The nine High Courts are 1 Delhi 2 Karnataka 3 Bombay Nagpur Bench 4 Allahabad 5 Madras 6 Rajasthan 7 Madhya Pradesh 8 Andhra Pradesh 9 Punjab and Haryana
In these appeals before us learned Attorney General on behalf of the appellants has drawn our attention to the difference in phraseology of the Presidential order dated June 27 1975 and the earlier Presidential orders dated November 3 1962 and November 16 1974 and has urged that in view of the absolute nature of the Presidential order of June 27 1975 petition for a writ of habeas corpus is not maintainable
There can be no doubt that the Presidential order dated June 27 1975 has been worded differently compared to the earlier Presidential orders which were issued under clause 1 of article 359 and that there has been a departure from the pattern which used to be adopted while issuing such orders
The Presidential order dated November 16 1974 has already been reproduced earlier
Presidential order dated November 3 1962 issued under clause 1 of article 359 of the Constitution read as under ORDER New Delhi the 3rd November 1962 GSR 146 In exercise of the powers conferred by clause 1 of article 359 of the Constiution the President hereby declares that the right of any person to move any court for the enforcement of the rights conferred by article 21 and article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency 260 issued under clause 1 of article 352 thereof on the 26th October 1962 is in force if such person has been deprived of any such rights under the Defence of India ordinance 196 4 of 1962 or any rule or order made thereunder
 on November 6 1962 the rules framed under the ordinance by the Central Government were published
On November 11 1962 the Presidential order reproduced above was amended and for the words and figure article 21 the words and figures articles 14 and 21 were substituted
The Defence of India ordinance was subsequently replaced by the Defence of India Act and the rules framed under the ordinance were deemed to have been framed under the Act
Perusal of the above Presidential order of 1962 shows that what was suspended was the right of any person to move any court for the enforcement of rights conferred by articles 14 21 and 22
The suspension was however conditioned by the circumstance that such person had been deprived of such rights under the Defence of India Act or any rule or order made thereunder
It was plain that in case a detention order was made or any other action was taken not under the provisions of the Defence of India Act or any rule or order made thereunder the same could not enjoy the protection of the Presidential order under article 359
Another effect of the Presidential order was that as long as the proclamation of emergency was in force the validity of the provisions of the Defence of India Act or the rules or orders made thereunder could not be assailed on the ground of being violative of articles 14 21 and 22
It is also clear that in view of article 358 while a proclamation of emergency was in operation nothing in article 19 could have restricted the power of the State to make any law or to take any executive action which the State could but for the provisions contained in Part III was competent to make or to take
Likewise under the Presidential order dated November 16 1974 which has been already reproduced earlier what was suspended was the right to move any court with respect to an order of detention which might have been made or which might be made thereafter under section 31c of the as amended for the enforcement of rights conferred by articles 14 21 and clause 4 to 7 of article 22 of the Constitution
Proceedings pending in any court for the enforcement of any of the aforesaid rights with respect to orders of detention made under section 3 1 c too were suspended
It was plain from the language of the Presidential order that there could be no suspension of the right mentioned in the Presidential order if the detention order could not be shown to have been made under section 31c of MISA because an order not under section 31 c was outside the Presidential order
The Presidential order of 1962 under article 3591 of the Constitution came to be considered by this Court in the case of Makhan Singh vs State of Punjab1 Gajendragadkar J as he then was speaking for six out of the Bench of seven Judges of this Court observed while dealing with the effect of the Presidential order on a petition of habeas corpus 1 1964 4 section C R 797
261 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 provision 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 i has been ordered malafide
It is hardly necessary to  emphasise that the exercise of a power malafide is wholly outside the scope of the Act conferring the power and can  always be successfully challenged
It is true that a mere allegation that the detention is malafide would not be enough the detenu will have to prove the malafides
But if the malafides are alleged the detenu cannot be precluded from substantiating his plea on the ground of the bar created by article 3591 and the Presidential order
That is another kind of plea which is outside the purview of article 3591
 It was further observed  It is only in regard to that class of cases falling under section 4911 b where the legality of the detention 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 inapplicable and proceedings taken on behalf of the detenu will have to be tried in accordance with law
We ought to add that these categories of pleas have been mentioned by us by way of illustrations and so they should not be read as exhausting all the pleas which do not fall within the purview of the Presidential order
There is yet another ground on which the validity of the detention may be open to challenge
If a detenu contends that the operative provision of the law under which he is detained suffers from the vice of excessive delegation and IS therefore invalid the plea thus raised by the detenu cannot at the threshold be said to be barred by the Presi 262 dential order
In terms it is not a plea which is relatable to the fundamental rights specified in the said order
It is a plea which is independent of the said rights and its validity must be examined
 In the case of State of Maharashtra vs Prabhakar Pandurang Sangzgiri  Anr1
Subba Rao J as he then was speaking for the Constitution bench of this Court observed Article 358 of the Constitution suspends the provisions of article 19 of Part III of the Constitution during the period the proclamation of emergency is in operation and the order passed by the President under article 359 suspended the enforcement inter alia of article 21 during the period of the said emergency
But the President s order was a conditional one
In effect it said that the right to move the High Court or the Supreme Court remained suspended if such a person had been deprived of his personal liberty under the Defence of India Act 1962 or any rule or order made thereunder
If a person was deprived of his personal liberty not under the Act or a rule or order made there under but in contravention thereof his right to move the said Courts in that regard would not be suspended
The question therefore in this case is whether the first respondent s liberty has been restricted in terms of the Defence of India Rules where under he was detained
If it was in contravention of the said Rules he would have the right to approach the High Court under article 226 of the Constitution
 Similar view was expressed in the case of Dr Ram Manohar Lohia vs State of Bihar  Ors2 Sarkar J as be then was in that case observed that where a person was detained in violation OF the mandatory provisions of the Defence of India Act his right to move the court was not suspended
Hidayatullah and Bachawat JJ
referred to the fact that the Presidential order did not say that even if a person was proceeded against in breach of the Defence of India Act or the rules he could not move the court or complain that the Act and the Rules under colour of which some action was taken did not warrant it
The Presidential order was held to have not intended to condone an illegitimate enforcement of the Defence of India Act
Raghubar Dayal J held that the Court could go into the question as to whether the District Magistrate exercised the power of detention under the Defence of India Rules bonafide and in accordance with the rules
Mudholkar J Observed that if a detenu contends that the order
though it purports to be under rule 301 of the Defence of India Rules was not competently made this Court had a duty to enquire into the matter
Sarkar Hidayatullah Mudholkar and Bachawat JJ
On consideration of the material before them found that as the detention order had been made with a view to present the detenu from acting in a manner prejudicial to the maintenance of 1  2  263 law and order and not public order as contemplated by rule 30 the detention order was not in conformity with law
The petitioner in that case was accordingly directed to be set at liberty
The observations in the cases referred to above show that the validity of the detention orders could be assailed despite the Presidential orders of 1962 and 1974 under article 359 in case the right relied upon was not one covered by these Presidential orders
The protection afforded by those Presidential orders was not absolute it Was conditional and confined to ruling out the challenge to detention orders and other actions taken under the provisions mentioned in those Presidential orders on the score of contravention of the articles specified in those orders
If the detention of a detenu was not in accordance with the provisions mentioned in the Presidential orders the Presidential orders did not have the effect of affording protection to the detention order and it was permissible to challenge the validity of the detention on the ground that it had not been made under the specified provisions but in contravention of those provisions
We may now deal with the Presidential order dated June 27 1975 with which we are concerned
Unlike the Presidential orders under clause 1 of article 359 issued earlier this Presidential order makes no reference to any detention order made under any specified provision
It seeks to impose a blanket suspension of the right of any person including a foreigner to move any court far the enforcement of the rights conferred by articles 14 21 and 22 of the Constitution and of all proceedings pending in any court for the enforcement of the above mentioned rights for the period during which the proclamation of emergency is in force
The observations which were made by this court in the cases referred to above in the context of the phraseology of the earlier Presidential orders of 1962 and 1974 namely the detention orders made under specified provisions cannot now be relied upon while construing the ambit of the Presidential order of June 27 1975
The difference in phraseology of the Presidential order dated June 27 1975 and that of the earlier Presidential orders would not however justify the conclusion that because of the new Presidential order dated June 27 1975 a detention order need not comply with the requirements of the law providing for preventive detention
Such a detention order would still be liable to be challenged in a court on the ground that it does not comply with the requirement of law for preventive detention if ground for such challenge be permissible in spite of and consistently with the new Presidential order
The effect of the change in phraseology would only be that such of the observations which were made in the cases mentioned above in the context of the language of the earlier Presidential orders cannot now be relied upon
Reliance however can still be placed upon the observations made in those cases which were not linked with the phraseology of the earlier Presidential orders
Question then arises as to what is the effect of the suspension of the right of a person to move any court for the enforcement of rights 264 conferred by articles 14 21 and 22 of the Constitution
One obvious result of the above is that no one can rely upon articles 14 21 and 22 with a view to seek relief from any court
According to the stand taken by the learned Attorney General the effect of the suspension of the right of a person to move any court for the enforcement of the right conferred by article 21 is that even if the order for detention has been made without the authority of law no redress can be sought from the court against such detention order
Article 21 of the Constitution reads as under No person shall be deprived of his life or personal liberty except according to procedure established by law
 It is urged that article 21 is the sole repository of one s right to life or personal liberty
The moment the right to move any court for enforcement of article 21 is suspended no one can according to the submission complain to the court of deprivation of life or personal liberty for any redress sought from the court on that score would be enforcement of article 21
Petition under article 226 for the issue of a writ of habeas corpus it is contended by learned Attorney General is essentially a petition to enforce the right of personal liberty and as the right to move any court for the enforcement of the right conferred by article 21 is suspended no relief can be granted to the petitioner in such petition
In order to assess the force of the above argument it may be necessary to give the background and the history of article 21
In the original draft of the Indian Constitution in the article which now stands as article 21 the words used were in accordance with due process of law instead of the words according to procedure established by law
 The concept of expression due process of law or its equivalent law of the land traces its lineage for back into the beginning of the 13th century AD
The famous 39th chapter of the Magna Carta provides that no free man shall be taken or imprisoned or disseized or outlawed or exiled or in any way destroyed nor shall we go upon him nor send upon him but by the lawful judgment of his peers and by the law of the land Magna Carta as a charter of English liberty was confirmed by successive English monarchs
It was in one of these confirmations 28 Ed
III Chap
3 known as Statute of Westminster of the liberties of London that the expression due process of law appears to have been used for the first time
Neither of the expressions due process of law or law of the land was explained or defined in any of the documents but on the authority of Sir Edward Coke it may be said that both the expressions have the same meaning
In substance they guaranteed that persons should not be imprisoned without proper indictment and trial by peers and that property should not be seized except in proceedings conducted in due form in which the owner or the person in possession should have an opportunity to show cause why seizure should not be made
The expression due process of law came to be a part of the US Constitution by the Fifth Amendment which was adopted in 1791 and which provided that no person shall be 265 deprived of life liberty or property without due process of law
 A Similar expression was used in the Fourteenth Amendment in 1868
It has been said that few phrases in the law are so elusive of exact apprehension as due process of law The United States Supreme Court has always declined to give a comprehensive definition of it and has preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decisions as they arise
The expression due process of law as used in the US Constitution has been taken to impose a limitation upon the powers of the Government legislative as well as executive and judicial
Applied in England as protection against executive usurpation and royal tyranny in America it became a bulwark against arbitrary legislation
Due process of law according to Cooley means in each particular case such an exercise of the powers of Government as the settled maxims of law permit and sanction and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs Constitutional Limitations Vol
II p 741 Till about the middle of the 19th Century due process clause was interpreted as a restriction upon procedure and particularly the judicial procedure by which the Government exercises its power
Principally it related to the procedure by which persons were tried for crimes and guaranteed to accused persons the right to have a fair trial in Compliance with well established criminal proceedings
The same principle applied to the machinery or proceedings by which property rights were adjudicated and by which the powers of eminent domain and taxation were exercised
During this period it was not considered to have any bearing on substantive law at all
Subsequently view came to be accepted that the concept of due process of law protected rights of life liberty and property
This change in judicial thinking was influenced in a great measure by the industrial development leading to accumulation of large capital in the hands of industrialists and the emergence of a definite labouring class
What constituted legitimate exercise of the powers of legislation now came to be a judicial question and no statute was valid unless it was reasonable in the opinion of the Court
The US Supreme Court laid stress upon the word due which occurs before and qualifies the expression process of law Due means what is just and proper according to the circumstances of a particular case
The word introduces a variable element in the application of the doctrine for what is reasonable in one set of circumstances may not be so in another set of circumstances
The requirement of due process clause as a substantial restriction on Government control is also now becoming a thing of the past and the rule is being restricted more and more to its original procedural aspect see observations of Mukherjea J in the case of A K Gopalan supra
At the time the Constitution was being drafted the Constitutional Adviser Mr B N Rau had discussions with US Constitutional experts some of whom expressed the opinion that power of review implied in due process clause was not only undemocratic because it 266 gave the power of vetoing legislation to the judges but also threw an unfair burden on the judiciary
This view was communicated by Mr Rau to the Drafting Committee which thereupon substituted the words except according to procedure established by law for words due process of law
 In dropping the words due process of law the framers of our Constitution prevented the introduction of elements of vagueness uncertainty and changeability which had grown round the due process doctrine in the United States
The words  except according to procedure established by law were taken from article 31 of the Japanese Constitution according to which no person shall be deprived of life or liberty nor shall any criminal liability be imposed except according to procedure established by law
The article is also somewhat similar to article 4041 of Irish Constitution according to which no person shall be deprived of his personal liberty save in accordance with law
 It was laid down in Gopalan s case by the majority that the word law has been used in article 21 in the sense of State made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice
The procedure established by law was held to mean the procedure established by law made by the State that is to say the Union Parliament or the legislatures of the States Law it was also observed by Mukherjea J meant a valid and binding law under the provisions of the Constitution and not one infringing fundamental rights
The effect of the suspension of the right to move any court for the enforcement of the right conferred by article 21 in my opinion is that when a petition is filed in a court the court would have to proceed upon the basis that no reliance can be placed upon that article for obtaining relief from the court during the period of emergency
Question then arises as to whether the rule that no one shall be deprived of his life or personal liberty without the authority of law still survives during the period of emergency despite the Presidential order r suspending the right to move any court for the enforcement of the right contained in article 21
The answer to this question is linked with the answer to the question as to whether article 21 is the sole repository of the right to life and personal liberty
After giving the matter my earnest consideration I am of the opinion that article 21 cannot be considered to be the sole repository of the right to life and personal liberty
The right to life and personal liberty is the most precious right of human beings in civilised societies governed by the rule of law
Many modern constitutions incorporate certain fundamental rights including the one relating to personal freedom
According to Blackstone the absolute rights of Englishmen were the rights of personal security personal liberty and private property
The American Declaration of Independence 1776 states that all men are created equal and among their inalienable rights are life liberty and the pursuit of happiness
The Second Amendment to the US Constitution refers inter alia to security of person while the Fifth Amendment prohibits inter alia deprivation of life and liberty without due process of law
The different Declarations of Human Rights and fundamental freedoms have all laid stress upon the sanctity 267 of life and liberty
They have also given expression in varying words to the principle that no one shall be deprived of his life or liberty without the authority of law
The International Commission of Jurists which is affiliated to Unesco has been attempting with considerable success to give material content to the Rule of Law an expression used in the Universal Declaration of Human Rights
One of its most notable achievements was the Declaration of Delhi 1959
This resulted from a Congress held in New Delhi attended by jurists from more than 50 countries and was based on a questionnaire circulated to 75000 lawyers
Respect for the supreme value of human personality was stated to be the basis of all law see page 21 of the Constitutional and Administrative Law by o Hood Phillips 3rd Ed
Freedom under law it may be added is not absolute freedom
It has its own limitations in its own interest and can properly be described as regulated freedom
In the words of Ernest Barker 1 the truth that every man ought to be free has for its other side the complementary and consequential truth that no man can be absolutely free
that ii the need of liberty for each is necessarily qualified and conditioned by the need of liberty for all that iii liberty in the State or legal liberty is never the absolute liberty of all that iv liberty within the State is thus a relative and regulated liberty and that v a relative and regulated liberty actually operative and enjoyed
is a liberty greater in amount an absolute liberty could ever be if indeed such liberty could ever exist or even amount to anything more than nothing at all
Rule of law is the antithesis of arbitrariness
Plato believed that if philosophers were kings or kings philosophers government by will would be instrinsically superior to government by law and he so proclaimed in his Republic
Experience eventually taught him that this ideal was not obtainable and that if ordinary men were allowed to rule by will alone the interests of the community would be sacrificed to those of the ruler
Accordingly
in the Laws he modified his position and urged the acceptance of the second best namely government under law
Since then the question of the relative merits of rule by law as against rule by will has been often debated
In the aggregate the decision has been in favour of rule by law
On occasions however we have slipped back into government by will only to return again sadder and wiser men to Plato s second best when the hard facts of human nature demonstrated the essential egotism of men and the truth of the dictum that all power corrupts and absolute power corrupts absolutely
Bracton s dicta that if the king has no bridle one ought to be put upon him and that although the king is under no man he is under God and the law Fortescue s insistence that the realm of England is a reginem politicium et regale and hence limited by law
Coke s observation that Magna Carta is such a fellow that he will have no sovereign these are but a few of the beacons lighting the way to the triumph of the rule of law see pages 3 6 of the Rule of Law by Malcolm Macdonald  ors
Rule of law is now the accepted norm of all civilised societies
Even if there have been deviations 268 from the rule of law such deviations have been covert and disguised for no government in a civilized country is prepared to accept the ignominy of governing without the rule of law
As observed on page 77 of Constitutional Law by Wade and Phillips 8th Ed the rule of law has come to be regarded as the mark of a free society
Admittedly its content is different in different countries nor is it to be secured exclusively through the ordinary courts
But everywhere it is identified with the liberty of the individual
It seeks to maintain a balance between the opposing notions of individual liberty and public order
In every State the problem arises of reconciling human rights with the requirements of public interest
Such harmonising can only be attained by the existence of independent courts which can hold the balance between citizen and State and compel Governments to conform to the law
Sanctity of life and liberty was not something new when the Consitution was drafted
It represented a fact of higher values which mankind began to cherish in its evolution from a state of tooth and claw to a civilized existence
Likewise the principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the Constitution
It was a necessary corollory of the concept relating to the sanctity of life and liberty it existed and was in force before the coming into force of the Constitution
The idea about the sanctity of life and liberty as well as the principle that no one shall be deprived of his life and liberty without the authority of law are essentially two facets of the same concept
This concept grew and acquired dimensions in response to the inner urges and nobler impulses with the march of civilisation
Great writers and teachers philosophers and political thinkers nourished and helped in the efflorescence of the concept by rousing the conscience of mankind and by making it conscious of the necessity of the concept as necessary social discipline in self interest and for orderly existence
According even to the theory of social compact many aspects of which have now been discredited individuals have surrendered a part of their theoretically unlimited freedom in return or the blessings of the government
Those blessings include governance in accordance with certain norms in the matter of life and liberty of the citizens
Such norms take the shape of the rule of law
Respect for law we must bear in mind has a mutual relationship with respect for government
Erosion of the respect for law it has accordingly been said affects the respect for the government
Government under the law means as observed by Macdonald that the power to govern shall be exercised only under conditions laid down in constitutions and laws approved by either the people or their representatives
Law thus emerges as a norm limiting the application of power by the government over the citizen or by citizens over their fellows
Theoretically all men are equal before the law and are equally bound by it regardless of their status class office or authority
At the same time that the law enforces duties it also protects rights even against the sovereign
Government under law thus seeks the establishment of an ordered community in which the individual aware of his rights and duties comprehends the area of activity within which as a responsible and intelligent person he may 269 freely order his life secure from interference from either the government or other individuals see Rule of Law page 6
To quote further from Professor Macdonald It is clear enough that high echelon administrators are understandably impatient with the restraints imposed upon them by the traditional concept of the rule of law as developed by Dicey
Administrators deal with the implementation of highly technical and complex matters involving the immediate interests of many citizens To accomplish this they are granted wide discretion in the use of administrative power to effectuate broad policies laid down by the legislators
It is natural that they should desire to have the conflicts which arise as the result of the exercise of their discretion adjudicated by tribunals composed of experts acquainted with the details of the matters at issue rather than by judges trained only in the law
Hence their resistance to judicial review of administrative findings of fact  as opposed to findings of law 
The very things which a court of law prizes rules of evidence common law procedures even due process frequently appear to the administrators as obscurantist devices employed by those who oppose the very principle of the policy he is attempting to effectuate
Often secretly if not openly the administrator considers his policy to be the incarnation of the best interests of the people or at least of their best interests if they really understood them and hence considers himself as arrayed on the side of progress and light against the dark forces of reaction
E Thus our wonderland of bureaucracy  as Beck has called it has sought autonomy from the traditional rule of courts and law
If it should succeed we should then indeed be confronted with a vital segment of govern mental power which would have escaped from legal control and become arbitrary in its acts
To prevent this we have subjected the acts of administrators to challenge in the courts on the basis of ultra vires and provided for judicial review of administrative tribunals  finding of law see ibid page 8 
To use the words of Justice Brandeis1 with some modification experience should teach us to be most on our guard to protect liberty when the Government s purposes are beneficent
Men born to freedom are naturally alert to repel invasion of their liberty by evil minded persons
Greatest danger to liberty lies in insidious encroachment by men of zeal well meaning but lacking in due deference for the rule of law Even in the absence of article 21 in the Constitution the State has got no power to deprive a person of his life or liberty without 1 Olmstead vs United States  1928
270 the authority of law
This is the essential postulate and basic assumption of the rule of law and not of men in all civilised nations
Without such sanctity of life and liberty the distinction between a lawless society and one governed by laws would cease to have any meaning
The principle that no one shall be deprived of his life or liberty without the authority of law is rooted in the consideration that life and liberty are priceless possessions which cannot be made the plaything of individual whim and caprice and that any act which has the effect of tampering With life and liberty must receive sustenance from and sanction of the laws of the land
Article 21 incorporates an essential aspect of that principle and makes it part of the fundamental rights guaranteed in Part III of the Constitution
It does not however follow from the above that if article 21 had not been drafted and inserted in Part III in that event it would have been permissible for the State to deprive a person of his life or liberty without the authority of law
No case has been cited before us to show that before the coming into force of the Constitution or in countries under rule of law where there is no provision corresponding to article 21 a claim was ever sustained by the courts that the State can deprive a person of his life or liberty without the authority of law
In fact any suggestion to such a claim was unequivocally repelled
In the case of James Sommersett1 Lord Mansfield dealt with a case of a negro named Sommersett who was being taken in a ship to Jamaica for sale in a slave market
When the ships anchored at London port a habeas corpus petition was presented by some Englishmen who were moved by the yelling and cries of Sommersett
In opposition to the petition the slave trader took the plea that there was no law which prohibited slavery
Lord d Mansfield while repelling this objection made the following observation in respect of slavery which is one of the worst forms of deprivation of personal freedom It is so odious that nothing can be suffered to support it but positive law whatever inconveniences therefore may follow from this decision I cannot say this case is allowed or approved by the law of England and therefore the black must be discharged
 In other case Fabriqas vs Mostyn2 Lord Mansfield observed on page 173 To lay down in an English court of Justice that a Governor acting by virtue of Letters Patent
under the Great Seal is accountable only to God and his own con science that he is absolutely despotic and can spoil plunder
and affect His Majesty s subjects both in their liberty and property with impunity is a doctrine that cannot be maintained The above observations were relied upon in the matter of Ameer Khan3
I may also refer to the observations of Lord Atkin in the 1 1772 16 Cr
Pract
2  3 6 Bengal Law Reports 392
271 case of Eshuqbavi Eleko vs Officer Administering the Government of Nigeria 1 In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of 3 British subject except on the condition that he can sup port the legality of his action before a Court of Justice
And it is the tradition of British Justice that Judges should not shrink from deciding such issues in the face of the executive The above rule laid down in Eleko s case was followed by the High Courts in India before the coming into force of the Constitution in Prabhakar Kesheo Tare  ors
vs Emperor2 Vimlabai Deshpande vs Emperor2 Jitendranath Ghosh v The Chief Secretary to the Government of Bengal4 and In re Banwari Lal Roy  ors5
The rule laid down in Eleko s case was also followed by the Constitution Benches of this Court after the coming force of the Constitution in the cases of Bidi Supply Co vs The Union of India  ors6 and Basheshar Nath vs The Commissioner of Income tax Delhi  Rajasthan  Anr7
I am unable to subscribe to the view that when right to enforce the right under article 21 is suspended the result would be that there would be no remedy against deprivation of a person s life or liberty by the State even though such deprivation is without the authority of law or even in flagrant violation of the provisions of law
The right not to be deprived of one s life or liberty without the authority of law was not the creation of the Constitution
Such right existed before the Constitution came into force
The fact that the framers of the Constitution made an aspect of such right a part of the fundamental rights did not have the effect of exterminating the independent identity of such right and of making article 21 to be the sole repository of that right
Its real effect was to ensure that a law under which a person can be deprived of his life or personal liberty should prescribe a procedure for such deprivation or according to the dictum laid down by Mukherjea J in Gopalan s case such law should be a valid law not violative of fundamental rights guaranteed by Part III of the Constitution
Recognition as fundamental right of one aspect of the pre Constitutional right cannot have the effect of making things less favourable so far as the sanctity of life and personal liberty is concerned compared to the position if an aspect of such right had not been recognised as fundamental right because of the vulnerability of fundamental rights accruing from article 359
I am also unable to agree that in view of the Presi 1 2 AIR 1943 Nag 26
3 A I R 4 I L R 5 6  7 1959 Supp
1 section C R 528
272 dential order in the matter of sanctity of life and liberty things would be worse off compared to the state of law as it existed before the coming into force of the Constitution
The case of Dhirubha Devisingh Gohil vs The State of Bombay1 upon which reliance has been placed by learned Attorney General cannot be of much assistance to him
In that case this Court held that the validity of the Bombay Taluqdari Tenure Abolition Act 1949 cannot be questioned on the ground that it takes away or abridges the fundamental rights conferred by the Constitution of India in view of the fact that Act had been inserted in the Ninth Schedule of the Constitution
This Court also repelled the contention that the said Act was violative of section 229 of the Government of India Act 1935 because in the opinion of the Court the right secured by section 229 was lifted into the formal category of a fundamental right
The principle laid down in that case cannot be invoked in a case like the present wherein the area covered by the right existing since before the Constitution is wider than the area covered by the fundamental right and the fundamental right deals with only an aspect of such pre existing right
Moreover the correctness of the view taken in the above case in my opinion is open to question in view of the later decision of Makhan Singh supra decided by a Bench of seven Judges wherein it has been observed on page 821 that after the coming into force of the Constitution a detenu has two remedies one under article 226 or article 32 of the Constitution and another under section 491 of the Code of Criminal Procedure
Makhan Singh s case as discussed elsewhere shows that the remedy under an earlier statuory provision would not get obliterated because of the identical remedy by a subsequent Constitutional provision and that the two can co exist without losing their independent identity
Preventive detention though not strictly punishment is akin to punishment because of the evil consequences of being deprived of one s liberty
No one under our laws can be deprived of his life or liberty without the authority of law
This would be evident from the fact that if a person without the authority of law takes another person s life he would normally be guilty of the offence of culpable homicide
Likewise if a person deprives another of his liberty by confining him he would in the absence of any valid justification be guilty of wrongful confinement
It is for that reason that courts have insisted upon the authority of law for a public servant to take away someone s life or liberty
An executioner carrying out the sentence of death imposed by the court would not commit the offence of homicide because he is executing the condemned man in obedience to a warrant issued by a court having jurisdiction in accordance with the law of the land
Likewise a jailor confining a person sentenced to imprisonment is not guilty of the offence of wrongful confinement
The principle that no one shall be deprived of his life or liberty without the authority of law stems not merely from the basic assumption in every civilised society governed by the rule of law of the 1  273 sanctity of life and liberty it flows equally from the fact that under our penal laws no one is empowered to deprive a person of his life or liberty without the authority of law
The fact that penal laws of India answer to the description of the word law which has been used in article 21 would not militate against the inference that article 21 is not the sole repository of the right to life or personal liberty and that the principle that no one shall be deprived of his life or personal liberty without the authority of law flows from the penal laws of India
Nor is it the effect of article 21 that penal laws get merged in article 21 because of the fact that they constitute law as mentioned in article 21 for were it so the suspension of the right to move a court for enforcement of fundamental right contained in article 21 would also result in suspension of the right to move any court for enforcement of penal laws It has been pointed out above that even before the coming into force of the Constitution the position under the common law both in England and in India was that the State could not deprive a person of his life and liberty without the authority of law
The same was the position under the penal laws of India
It was all offence under the Indian Penal Code as already mentioned to deprive a person of his life or liberty unless such a course was sanctioned by the laws of the land
An action was also maintainable under the law of torts for wrongful confinement in case any person was deprived of his personal liberty without the authority of law
In addition to that we had section 491 of the Code of Criminal Procedure which provided the remedy of habeas corpus against detention without the authority of law
Such laws continued to remain in force in view of article 372 after the coming into force of the Constitution
According to that article notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by competent legislature or other competent authority
The law in force as observed by the majority of he Constitution Bench in the ease of Director of Rationing and Distribution vs The Corporation of Calcutta  Ors include not only the statutory law but also custom or usage having the force of law as also the common law of England which was adopted as the law of the country before the coming into force of the Constitution
The position thus seems to be firmly established that at the time the Constitution came into force the legal position was that no one could be deprived of his life or liberty without the authority of law
It is difficult to accede to the contention that because of article 21 of the Constitution the law which was already in force that no one could be deprived of his life or liberty without the authority of law 1  18 833SCI76 274 was obliterated and ceased to remain in force
No rule of construction interpretation warrants such an inference
Section 491 of the Code of Criminal Procedure continued to remain an integral part of that Code despite the fact that the High Courts were vested with the power of issuing writs of habeas corpus under article 226
No submission was ever advanced on the score that the said provision had become a dead letter of unforceable because of the fact that article 226 was made a part of the Constitution
Indeed in the case of Malkha Singh supra Gajendragadkar J speaking for the majority stated that after the coming into force of the Constitution a party could avail of either the remedy of section 491 of the Code of Criminal Procedure or that of article 226 of the Constitution
The above observations clearly go to show that constitutional recognition of the remedy of writ of habeas corpus did not obliterate or abrogate the statutory remedy of writ of habeas corpus
Section 491 of the Code of Criminal Procedure continued to be part of that Code till that Code was replaced by the new Code
Although the remedy of writ of habeas corpus is not now available under the new Code of Criminal Procedure 1973 the same remedy is still available under article 226 of the Constitution
Our attention has been invited to section 18 of the maintenance of Internal Security Act as amended
According to that section no person including a foreigner in respect of whom an order is made or purported to be made under section 3 shall have any right to personal liberty by virtue of natural law or common law if any
This section would not in my opinion detract from my conclusion that article 21 is not the sole repository of the right to personal liberty
It has been pointed out above that the principle that no one shall be deprived of his life and personal liberty without the authority of laws follows not merely from common law it flows equally from statutory law like the penal law in force in India
The above principle as would appear from what has been discussed elsewhere is also an essential facet of the rule of law
Section 18 therefore cannot be of much assistance to the appellants
I am also unable to subscribe to the view that section 18 would have the effect of enlarging the ambit of the power of the detaining authority for the purpose of passing an order for detention
There has been it needs to be emphasised no amendment of section 3 of the Act
Section 18 cannot be construed to mean that even if an order for detention is made on grounds not warranted by section 3 of the Act it shall be taken to be an order under section 3 of the Act
Apart from the fact that such an inference is not permissible on the language of section 18 the acceptance of this view would also render the validity of section 18 open to question on the ground that it suffers from the vice of excessive delegation of legislative power
The legislature is bound to lay down the legislative policy by prescribing the circumstances in which an order for detention can be made
It is not permissible for the legislature to confer a power of detention without laying down guidelines and prescribing the circumstances in which such order should be made
To do so would be tantamount to abdication of legislatitve function for in such 275 an event it would be open to the detaining authority to detain a person on any ground whatsoever
l agree with the learned Attorney General that if we are to accept his argument about the scope of the Presidential order of June 27 1975 in that event we have to accept it in its entirety and go the whole hog there is no half way house in between
So let us examine the consequences of the acceptance of the above argument
This would mean that if any official even a head constable of police capriciously or maliciously arrests a person and detains him indefinitely without any authority of law the aggrieved person would not be able to seek any relief from the courts against such detention during the period of emergency
This would also mean that it would not be necessary to enact any law on the subject and even in the absence of any such law if any official for reasons which have nothing to do with the security of State or maintenance of public order but because of personal animosity arrests and puts behind the bar any person or a whole group or family of persons the aggrieved person or persons would not be able to seek any redress from a court of law
The same would be the position in case of threat of deprivation or even actual deprivation of life of a person because article 21 refers to both deprivation of life as well as personal liberty
Whether such things actually come to pass is not the question before us it is enough to state that all these are permissible consequences from the acceptance of the contention that article 21 is the sole repository of the right life and personal liberty and that consequent upon the issue of the Presidential order no one can approach any court and seek relief during he period of emergency against deprivation of life or personal liberty
In order words the position would be that so far as executive officers are concerned in matters relating to life and personal liberty of citizens they would not be governed by any law they would not be answerable to any court and they would be wielding more or less despotic powers
To take another illustration
Supposing the Presidential order under article 3591 were to mention article 21 but not article 22
The acceptance of the above submission advanced on behalf of the appellants would mean that if the State does not release a detenu despite the opinion of the Advisory Board that there is no sufficient cause for his detention and thus keeps him in detention in fragrant violation of the provisions of article 22 no habeas corpus petition would be maintainable and this would be so even though article 22 itself is a fundamental right
The right to move a court for enforcement of a right under article 19 has now been suspended by the President under an order issued under article 3591
The effect of that on a parity of reasoning advanced on behalf of the appellant would be that no one can file a suit during the period of emergency against the State for recovery of property or money which is a form of property because such a suit except in some contingencies would be a Suit to enforce the right contained in article 19
276 Not much argument is needed to show that if two constructions of Presidential order were possible one leading to startling results and the other not leading to such results the court should lean in favour of such construction as would not lead to such results
Equally well established is the rule of construction that if there be a conflict between the municipal law on one side and the inter national law or the provisions of any treaty obligations on the other the courts would give effect to municipal law
If however two constructions of the municipal law are possible the courts should lean in favour of adopting such construction as would make the provisions of the municipal law to be in harmony with the inter national law or treaty obligations
Every statute according to this rule is interpreted so far as its language permits so as not to be inconsistent with the committee of nations or the established rules of international law and the court will avoid a construction which would give rise to such inconsistency unless compelled to adopt it by plain and unambiguous language
But if the language of the statute is clear it must be followed notwithstanding the conflict between municipal and international law which results see page 183 of Maxwell on the Interpretation of Statutes Twelfth Edition As observed by Oippenheim s International law although municipal courts must apply Municipal Law even if it conflicts with the Law of Nations there is a presumption against the existence of such a conflict
As the Law of Nations is based upon the common consent of the different States it is improbable that an enlightened State would intentionally enact a rule conflicting with the Law of Nations
A rule of Municipal Law which ostensibly seems to conflict with the Law of Nations must therefore if possible always be so interpreted as to avoid such conflict see Vol 1 pages 45 46 Lord Denning gave expression to similar view in the case of Corocraft craft Ltd vs Pan American Airways Inc 1 when he observed The Warsaw Convention is an international convention which is binding in international law on all the countries who have ratified it and it is the duty of these courts to construe our legislation so as to be in conformity with international law and not in conflict with it
 The rule about the construction of municipal law also holds good when construing the provisions of the Constitution as would appear from International Law by Fenwick Third Edition page 90 wherein is observed But while in the case of a direct conflict between national and international law the rule of national law will of necessity take priority until changed to conform to the international obligations of the state there are numerous cases in which the provisions of the national constitution of the provisions of a particular legislative act are not so but that they may be interpreted so as to enable the executive and the judicial agencies of the state to act in accordance with the obligations of international law 1 1969 1 All E R80 277 According to article 51 our Constitution the State shall endeavour to inter alia foster respect for international law and treaty obligations in the dealings of organised peoples with one another
Relying upon that article Sikri CJ
Observed in the case of Kesavananda Bharathi vs State of Kerala1 It seems to me that in view of art 51 of the directive principles this Court must interpret language of the Constitution if not intractable which is after all a municipal law in the light of the United Nations Charter and the solemn declaration subscribed to by India Articles 8 and 9 of the Universal Declaration of Human Rights in respect of which resolution was passed by the United Nations and was supported by India read as under ARTICLE 8 Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law
ARTICLE 9 No one shall be subjected to arbitrary arrest detention or exile  While dealing with the Presidential order under article 3591 we should adopt such a construction as would if possible not bring it in conflict with the above articles 8 and 9
From what has been discussed elsewhere it is plain that such a construction is not only possible it is also preeminently reasonable
The Presidential order therefore should be so construed as not to warrant arbitrary arrest or to bar right to an effective remedy by competent national tribunals for acts violating basic right of personal liberty granted by law
It has been argued that suspending the right of a person to move any court for the enforcement of right to life and personal liberty is done under a constitutional provision and therefore it cannot be said that the resulting situation would mean the absence of the rule of law
This argument in my opinion cannot stand close scrutiny for it tries to equate illusion of the rule of law with the reality of rule of law
Supposing a law is made that in the matter of the protection of life and liberty the administrative officers would not be governed by any law and that it would be permissible for them to deprive a person of life and liberty without any authority of law
In one sense it might in that event be argued that even if lives of hundreds of persons are taken capriciously and maliciously without the authority of law it is enforcement of the above enacted law
As observed by Friedmann on page 500 of Law in Changing Society 2nd Ed in a purely formal sense any system of norm based on a hierarchy of orders even the organised mass murders of Nazi regime qualify as law
This argument cannot however disguise the reality of the matter that hundreds of innocent lives have been taken because of the absence of rule of law
A state of negation of rule of law would not cease to be such a state because of the fact that such a state of negation of rule of law has been brought about by a statute
Absence of rule 1 1973 Supp
SCR 1
278 of law would nevertheless be absence of rule of law even though it is brought about by a law to repeal all laws
In the words of Wade Government under the rule of law demands proper legal limits on the exercise of power
This does not mean merely that acts of authority must be justified by law for if the law is wide enough it can justify a dictatorship based on the tyrannical but perfectly legal principle quod principi placuit legis habet vigorem
The rule of law requires something further
Powers must first be approved by Parliament and must then be granted by Parliament within definable limits see Administrative Law Third Edition page 46
It is no doubt true that Dicey s concept of rule of law has been criticised by subsequent writers since it equates the rule of law with the absence not only of arbitrary but even of wide discretionary power
The following reformulation of Dicey s ideas as applicable to modern welfare state given by HW Jones eliminates the equation of arbitrary and wide discretionary powers There are I believe ideas of universal validity reflected in Dicey s three meanings  of the rule of law 1 in a decent society it is unthinkable that government or any 
Officer of government possesses arbitrary power over the person or the interests of the individual 2 all members of society private persons and governmental officials alike must be equally responsible before the law and 3 effective judicial remedies are more important than abstract constitutional declarations in securing the rights of the individual against encroachment by the State see Law in a Changing Society by Friedmann 2nd Ed page 501
One of the essential attributes of the rule of law is that executive action to the prejudice of or detrimental to the right of an individual must have the sanction of some law
This principle has now been well settled in a chain of authorities of this Court
In the case of Rai Sahib Ram Jawaya Kapur  Ors
vs The State of Punjab1 Mukherjea CJ speaking for the Constitution Bench of this Court observed Specific legislation may indeed be necessary if the Government require certain powers in addition to what they possess under ordinary law in order to carry on the particular trade or business
Thus when it is necessary to encroach upon private rights in order to enable the Government to carry on their business a specific legislation sanctioning such course would have to be passed
 The above attribute of the rule of law has been specially high lighted in the decision of this Court in the case of State of Madhya Pradesh  Anr
vs Thakur Bharat Singh2
In that case the State Government made an order under section 3 of the Madhya Pradesh Public Security Act 1959 directing that the respondent 1 shall not be in any place in Raipur District ii shall immediately proceed 1  2  279 to and reside in a named town and iii shall report daily to a police station in that town
The respondent challenged the order by a writ petition under articles 226 and 227 of the Constitution on the ground inter alia that section 3 infringed the fundamental rights guaranteed under article 19 of the Constitution
The High Court declared clauses ii and iii of the order invalid on the ground that clauses b and c of section 3 1 of the Madhya Pradesh Public Security Act on which they were based contravened article 19
On appeal this Court held that section 3 1 b violated article 19 and as it was a pre emergency enactment it must be deemed to be void when enacted
Section 3 1 b was further held not to have revived as a result of the proclamation of emergency by the President
Counsel for the State submitted in the alternative that even if section 3 1 b was void article 358 protected action both legislative and executive taken after proclamation of emergency and therefore any executive action taken by the State would not be liable to be challenged on the ground that it infringed the fundamental freedoms under article 19
This contention was repelled
Shah J as he then was speaking for the Court observed All executive action which operates to the prejudice of any person must have the authority of law to support it and the terms of article 358 do not detract from that rule
Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take but for the provisions contained in Part III of the Constitution
Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others it merely provides that so long as the proclamation of emergency subsists laws may be enacted and executive action may be taken in pursuance of lawful authority which if the provisions of article 19 were operative would have been invalid
Our federal structure is founded on certain fundamental principles 1 the sovereignty of the people with limited Government authority i e the Government must be conducted in accordance with the will of the majority of the people
The people govern themselves through their representatives whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people 2 There is distribution of powers between the three organs of the State legislative executive and judicial each organ having some check direct or indirect on the other and 3 the rule of law which includes judicial review of arbitrary executive actions
As pointed out by Dicey in his Introduction to the study of the Law of the Constitution  10th Edn at P 202 the expression rule of law  has three meanings or may be regarded from three different points of view It means in the first place the absolute supremacy or predominance of regular law as opposed to the HE influence of arbitrary power and excludes the existence of arbitrariness of prerogative or even of wide discretionay 280 authority on the part of government  At p 188 Dicey points out In almost every continental community the executive exercises far wider discretionary authority in the matter of arrest of temporary imprisonment of expulsion from its territory and the like than is either legally claimed or in fact exerted by the government in England and a study of European polities now and again reminds English readers that wherever there is discretion there is room for arbitrariness and that in a republic no less than under a monarchy discretionary authority
On the part of the government must mean insecurity for legal freedom on the part of its subjects
 We have adopted under our Constitution not the Continental system but the British system under which tile rule of law prevails
Every act done by the Government or by its officers must if it is to operate to the prejudice of any person be supported by some legislative authority
 In Chief Settlement Commissioner Rehabilitation Department Punjab  Ors
vs Om Parkash  Ors
1 a Division Bench of this Court observed In our constitutional system the central and most characteristic feature is the concept of the rule of law which means in the present context the authority of the law courts to test all administrative action by the standard of legality
The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the appropriate action in the competent court
 In District Collector of Hyderabad  Ors
vs Ms Ibrahim  Co etc
2 the respondents who were recognized dealers in sugar were prevented by an executive order from carrying on the business
The question which actually arose for decision before this Court was whether the said order was protected under articles 358 and 359 because of the declaration of state of emergency by the president
Shah J speaking for Bench of six Judges of this Court observed But the executive order immune from attack is only that order which the State was competent but for the provisions contained in article 19 to make
Executive action of the State Government which is otherwise invalid is not immune from attack merely because a proclamation of emergency is in operation when it is taken
Since the order of the State Government was plainly contrary to the statutory provisions contained in the Andhra Pradesh Sugar Dealers Licensing Order and the Sugar Control order it was not protected under article 358 of the Constitution
Nor had it the protection under article 259 1  2 281 In Bennett Coleman  Co  ors
v Union of Indial Ray J as he then was speaking for the majority of the Constitution Bench relied upon Thakur Bharat Singh and Ms Ibrahim  Co cases supra and observed Executive action which is unconstitutional is not immune during the proclamation of emergency
During the proclamation of emergency Article 19 is suspended
But it would not authorise the taking of detrimental executive action during the emergency affecting the fundamental rights in Article 19 without any legislative authority or in purported exercise of power conferred by any per emergency law which was invalid when enacted
 In Shree Meenakshi Mills Ltd vs Union of India2 this Court dealt with petitions challenging the validity of the fixation of price of cotton yarns under an executive order
Objection was raised to the maintainability of the petitions on the score of proclamation of emergency
This objection was repelled and reliance was placed on the decision of the Court in the case of Bennett Coleman  Co In Naraindas lndurkhya vs The State of Madhya Pradesh 3 the Constitution Bench of this Court to which three of us Ray C J I Khanna and Bhagwati JJ were parties placed reliance on the decisions in the cases of Ram Jawaya Kapur Thakur Bharat Singh and Bennett Coleman  Co surpa These authorities clearly highlight the principle that executive authorities cannot under the rule of law take any action to the prejudice of an individual unless such action is authorised by law
A fortiori it would follow that under the rule of law it is not permissible to deprive a person of his life or personal liberty without the authority of law
It may be appropriate at this age to refer to other eases in which stress has been laid on rule of law by this Court
Wanchoo J in the case of Director of Rationing and Distribution vs The Corporation of Calcutta  orsl stated
that in our county the rule of law prevails and our Constitution has guaranteed it by the provisions contained in Part III thereof as well as other provisions in other Parts
In Bishan Das  ors
vs The State of Punjab  ors5 section K Das J speaking for the Constitution Banch of this Court deprecated action C taken by the State and its officers on the ground that it was destructive of the basic principles of the rule of law
In G Sadanandan vs State of Kerala  Anr
supra Gajendragadkar CJ
speaking for the Constitution bench observed that the Paramount requirement of the Constitution was that even during 1  2 3 A I R 1974 section C 1232
4  5 11962 2 section CR 69 282 emergency
the freedom of Indian citizens would not be taken away without the existence of justifying necessity specified by the Defence of India Rules
In section G Jaisinghani vs Union of India  ors1 Ramaswami J speaking for the Constitution Bench of this Court observed as under In this context it is important to emphasise that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based
In a system governed by rule of law discretion when conferred upon executive authorities must be confined within clearly defined limits
The rule of law from this point of view means that decisions should be made by the application of known principles and rules and in general such decisions should be predictable and the citizen should know where he is
If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law
See Dicey Law of the Constitution  Tenth Edn Introduction ex Law has reached its finest moments  stated Douglas J in United States vs Wunderlick2 when it has freed man from the unlimited discretion of some ruler 
Where discretion is absolute man has always suffered 
It is in this sense that the rule of law may be said to be sworn enemy of caprice
Discretion as Lord Mansfield stated it in classic terms in the case of John Wilkes3 means sound discretion guided by law
It must be governed by rule not by humour It must not be arbitrary value and fanciful   In the case of Shrimati Indira Nehru Gandhi vs Shri Raj Narain4 both Ray CJ
and Chandrachud J laid stress on the rule of law in our constitutional scheme
It would not in my opinion be correct to consider rule of law as a vague or nebulous concept because of its description as an unruly horse by Ivor Jennings
Indeed according to Jennings the rule of law demands in the first place that the powers of the Executive should not only be derived from law but that they should be limited by law
Whatever might be the position in peripheral cases there are certain aspects which constitute the very essence of the rule of law
Absence of arbitrariness and the need of the authority of law for official acts affecting prejudicially rights of individuals is one of those aspects
The power of the courts to grant relief against arbitrariness or absence of authority of law in the matter of the liberty of the subject may now well be taken to be a normal feature of the rule of law
To quote from Halsbury s Laws of England Third Edition Vol 7 1 1967 2 section C R 703
2  3 at 2539
4 19761 2 section C R 347 283 para 416 the so called liberties of the subject are really implications drawn from the two principles that the subjects may say or do what he pleases provided he does not transgress substantive law or infringe the legal rights of others whereas public authorities including the Crown may do nothing but what they are authorised to do by some rule of common law or statute
The essence of rule of law according to Prof Goodhart is that public officers are governed by law which limits their powers
It means Government under law the supremacy of law over the Government as distinct from Government by law the mere supremacy of law in society generally which would apply also to totalitarian states See page 42 of constitutional and Administrative Law by Hood Phillips Third Edition
I may mention that there has been an amendment of article 359 inasmuch as clause 1A has been added in that article
The effect of the insertion of that clause in article 359 is that while an order made under clause 1 mentioning any of the rights conferred by Part III is in operation nothing ill that Part conferring those rights shall restrict the power of the State to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take but any law so made shall
to the  extent of the incompetency cease to have effect as soon as the order aforesaid ceases to operate except as respects thing done or omitted to be done before the law so ceases to have effect
Clause 1A thus protects laws and executive actions from any attack on validity on the score of being violative of the fundamental rights mentioned in the Presidential order in the same way as article 358 protects the laws and executive actions from being challenged on the ground of being violative of article 19 during the period of emergency
If the existence of article 358 did not have the effect of dispensing with the necessity for an executive action operating to the prejudice of tile right of a citizen of the authority of law the same must necessarily be the position after the insertion of clause 1A in article 359
It is significant that the language of clause 1A of article 359 in material respect is substantially the same as that of article 358
The language of clause 1A of article 359 makes it clear that the protection which is afforded by that clause is to such law or executive action is the State would but for the provisions contained in Part III of the Constitution be competent to make or take
The word competent has a significance and it is apparent that despite the Presidential order under article 3591 in the case of executive action the competence of the State to take such action would have to be established
Such competence would however be judged ignoring the restriction placed by the provisions of Part III of the Constitution
To put it in other words clause 1A of article 359 does not dispense with the necessity of competence to make law or take executive action
The only effect of that clause is that during the period of emergency the restriction placed upon the competence by fundamental rights would not be there
But it would still be necessary to establish the competence dehors the restrictions of the fundamental rights
284 The matter can also be looked at from another angle
Before any public authority can deprive a person of his life or personal liberty two requirements are to be satisfied 1 Power must be conferred by law upon such authority to deprive a person of his life or liberty and 2 Law must also prescribe the procedure for the exercise of such power
Suspension of the right to move any court for the enforcement of the right under article 21 can at the best impinge upon the second requirement it cannot affect the first requirement which is a cardinal principle of the rule of law
l am conscious of the fact that though article 21 refers to procedure established by law there are observations in Gopalan s case that the article would also cover substantive law for affording protection to life and liberty
What article 21 lays down is that no person shall be deprived of his life or personal liberty except according to procedure established by law
Procedure about the exercise of power of depriving a person of his life or personal liberty necessarily presupposes that the substantive power of depriving a person of his life or personal liberty has been vested in an authority and that such power exists
Without the existence of such substantive power no question can arise about the procedure for the exercise of that power
It has therefore been held that though there is no reference to substantive power in article 21 the said article would cover both the existence of the substantive power of depriving a person of his life and personal liberty as well as the procedure for the exercise of  that power
The question with which we are concerned is as Lo what is the effect of the suspension of the right to move a court for
the enforcement of the right contained in article 21
The effect
it may possibly be argued is that consequent upon such suspension if a person is deprived of his life or personal liberty under a law not satisfying the second requirement indicated above he cannot seek judicial redress on that score
Would it however follow from the suspension of such right that no judicial remedy would be available if a personal is deprived by an authority of his life or personal liberty even though such an authority has not been vested with the substantive power of deprivation of life and personal liberty
The answer to this question in my opinion should plainly be in the negative
The suspension of the right to move a court for the enforcement of the right contained in article 21 cannot have the effect of debarring an aggrieved person from approaching the courts with the complaint regarding deprivation of life or personal liberty by an authority on the score that no power has been vested in the authority to deprive a person of life or liberty
The presupposition of the existence of substantive power to deprive a person of his life or personal liberty in article 21 even though that article only mentions the procedure would not necessarily point to the conclusion that in the event of the suspension of the right to move any court for the enforcement of article 21 the suspension would also dispense with the necessity of the existence of the substantive power
The coexistence of substantive power and procedure established by law for depriving a person of his life and liberty 285 which is implicit in article 21 would not lead to the result that even if there is suspension of the right regarding procedure suspension would also operate upon the necessity of substantive power
What is true of a proposition need not be true of the converse of that proposition
The suspension of the right to move any court for the enforcement of the right contained in article 21 may have the effect of dispensing with the necessity of prescribing procedure for the exercise of substantive power to deprive a person of his life or personal liberty it can no case have the effect of permitting an authority to deprive a person of his life or personal liberty without the existence of substantive personal
The close bond which is there between the existence of substantive power of depriving a person of his life or personal liberty and the procedure for the exercise of that power if the right contained in article 21 were in operation would not necessarily hold good if that right were suspended because the removal of compulsion about the prescription of procedure for the exercise of the substantive power would not do away with the compulsion regarding the existence of that power
It is significant that there is a difference in the language of article 21 and that of article 311 wherein the framers of the Constitution said that no one shall be deprived of his property save by the authority of law
In considering the effect of Presidential order suspending the right of a person to move any court for enforcement of right guaranteed by article 21 we should not treat the words except according to procedure established by law to be synonymous with save by authority of law
The President can in exercise of powers conferred by article 3591 suspend when the proclamation of emergency is in operation the right to move any court for the enforcement of such of the fundamental rights as may be mentioned in the order
On the plain language of article 3591 the President has no power to suspend the right to move any court for the enforcement of rights which are not fundamental rights conferred by Part III of the Constitution
Rights created by statutes are not fundamental rights conferred by Part III of the Constitution and as such enforcement of such statutory rights cannot be suspended under article 3591
Likewise article 3591 does not deal with obligations and liabilities which flow from statutory provisions and it would follow that an order under article 3591 cannot affect those obligations and liabilities arising out of statutory provisions
Nor can a Presidential order under article 3591 nullify or suspend the operation of any statute enacted by a competent legislature
Any redress sought from a court of law on the score of breach of statutory provisions would be outside the purview of article 359  1  and the Presidential order made hereunder
The Presidential order cannot put the detenu in a worse position than that in which he would be if article 21 were repealed It cannot be disputed that if article 21 were repealed a detenu would not be barred from obtaining relief under a statute in case there is violation of statutory provisions
Likewise in the event of repeal of article 21 a detenu can rightly claim in a court of law that he cannot be deprived of his life or personal liberty without the authority of law
Article 286 3591 ousts the jurisdiction of the court only in respect of matters specified therein during the period of emergency
So far as matters not mentioned in article 3591 and the Presidential order thereunder concerned the jurisdiction of the court is not ousted
A provision which has the effect of ousting the jurisdiction of the court should be construed strictly
No inference of the ouster of the jurisdiction of the court can not be drawn unless such inference is warranted by the clear language of the provision ousting such Jurisdiction
I may in this context refer to the observations of the Constitution Bench of this Court in the case of K Anandan Nambiar  Anr
vs Chief Secretary Government of Madras  Ors1 Gajendragadkar J speaking for the Constitution Bench observed In construing the effect of the Presidential order it is necessary to bear in mind the general rule of construction that where an order purports to suspend the fundamental rights guaranteed to the citizens by the Constitution the said order must be strictly construed in favour of the citizens  fundamental rights  I am also unable to accede to the argument that though the position under law may be that no one can be deprived of his right to life or personal liberty without the authority of law the remedy to enforce the right to life or personal liberty is no longer available during the period of emergency because of the suspension of right to move any court for enforcement of right conferred by article 21
The basic assumption of this argument is that article 21 is the sole repository of right to life and personal liberty
Such an assumption as already  I stated above is not well founded
This apart a Presidential order under article 3591 cannot have the effect of suspending the right to enforce rights flowing from statutes nor can it bar access to the courts of persons seeking redress on the score of contravention of statutory provisions
Statutory provisions are enacted to be complied with and it is not permissible to contravene them
Statutory provisions cannot be treated as mere pious exhortations or words of advice which may be abjured or disobeyed with impunity
Nor is compliance with statutory provisions optional or at the sufferance of the official concerned
It is the presence of legal sanctions which distinguishes positive law from other systems of rules and norms
To be a legal system a set of norms must furnish sanctions for some of its precepts
A legal sanction is usually thought of as a harmful consequence to induce compliance with law
Non compliance with statutory provision entails certain legal consequences
The Presidential order cannot stand in the way of the courts giving effect to those consequences
To put it differently the executive authorities exercising power under a statute have to act in conformity with its provisions and within the limits set out therein
When a statute deals with matters affecting prejudicially the rights of individuals the ambit of the power of the authorities acting under the statute would be circumscribed by its provisions and it would not be permissible to invoke some indefinite general powers of the executive
As observed by Lord Atkinson in 1  oh p 410
287 the case of Attorney General vs De Keyser s Royal Hotel Ltd
l the constitutional principle is that when the power of the Executive to interfere with the property or liberty of subjects has been placed under Parliamentary control and directly regulated by statute the Executive no longer derives its authority from the Royal Prerogative of the Crown but from Parliament and that in exercising such authority the Executive is bound to observe the restrictions which Parliament has imposed in favour of the subject
It is also not the result of the Presidential order as discussed elsewhere that because of the suspension of the right to move any court for enforcement of right under article 21 the remedy of a writ of habeas corpus ceases to be available against the State
The Presidential order would not preclude a person from challenging the validity of a law or order on grounds other than violation of articles 14 19 21 and 22
It may be pertinent to refer to a decision of this Court in the case of Jaichand Lall Sethia vs State of West Bengal2 wherein the Constitution Bench of this Court observed after referring to the case of Makhan Singh supra It was pointed out that during the pendency of the Presidential order the validity of the ordinance or any rule or order made thereunder cannot be questioned on the ground that it contravenes articles 14 21 and 22
But this limitation cannot preclude a citizen from challenging the validity of the ordinance or any rule or order made thereunder on any other ground
If the appellant seeks to challenge the validity of the ordinance rule or order made thereunder on ally ground other than the contravention of articles 14
21 and 22 the Presidential order cannot come into operation
It is not also open to the appellant to challenge the order on the ground of contravention of article 19 because as soon as a Proclamation of Emergency is issued by the President under article 358 the provision of article 19 are automatically suspended
But the appellant can challenge the validity of the order on a ground other than those covered by article 358 or the Presidential order issued under article 3591  
Such a challenge is outside the purview of the Presidential order
For instance
a citizen will not be deprived of the right to move an appropriate Court for a writ of habeas corpus on the ground that his detention has been ordered mala fide Similarly it will be open to the citizen to challenge the order of detention on the ground that any of the grounds given in the order
of detention is irrelevant and there is no real and proximate connection between the ground given and the object which the legislature has in view
It may be stated in this context that a mala fide exercise of power does not necessarily imply any moral turpitude as a matter of law
It only means that the statutory power is exercised for purposes foreign to those for which it is in law intended
In other words the power conferred by the statute has been utilised 1  2 1966 Supp
R 464
288 for some indirect purpose not connected with the object of the statute or the mischief it seeks to remedy Similar view was expressed in the case of Durgadas Shirali vs Union of India  ors1 In G Sadanandan vs State of Kerala  Anr2 the Constitution Bench of this Court speaking through Gajendragadkar CJ
struck down a detention order on the ground that it was mala fide
Our founding fathers made article 226 which confers power on the High Court to issue inter alia writs in the nature of habeas corpus an integral part of the Constitution
They were aware that under the US Constitution in accordance with article 1 section IX the privilege of the writ of habeas corpus could be suspended when in cases of rebellion or invasion the public safety may require it
Despite that our founding fathers made no provision in our constitution for suspending the power of the High Courts under article 226 to issue writs in the nature of habeas corpus during the period of emergency
They had perhaps in view the precedent of England where there had been no suspension of writ of habeas corpus since 1881 and even during tile course of First and Second World Wars
It would in my opinion be not permissible to bring about the result of suspension of habeas corpus by a strained construction of the Presidential order under article 3591 even though Article 226 continues to remain in force during the period of emergency
The writ of habeas corpus ad subjiciendum which is commonly known as the writ of habeas corpus is a process for securing the liberty of the subject by affording an effective mean or immediate release from unlawful or unjustifiable detention whether in prison or in private custody
By it the High Court and the judges of that Court at the instance of a subject aggrieved command the production of that subject and inquire is the cause of his imprisonment
If there is no legal justification for the detention the party is ordered to be released
Release on habeas corpus is not however an acquittal nor may the writ be used as a means of appeal see Halsbury s Laws of England Vol 11 Third Edition page 24
In Greene vs Secretary of State for Home Affairs3 Lord Wright observed  It is clear that the writ of habeas corpus deals with the machinery of justice not the substantive law except in so far as it can be said that the right to have the Writ is itself part of substantive law
it is essentially a procedural writ the object of which is to enforce a legal right 
The inestimable value of the proceedings is that it is the most efficient mode ever devised by any system of law to end unlawful detainments and to secure a speedy release where the circumstances and the law so required 1  2 3 289 Writ of habeas corpus was described as under by Lord Birkenhead in the case of Secretary of State for Home Affairs vs O Brien1 It is perhaps the most important writ known to the constitutional law of England affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement
It is of immemorial antiquity an instance of its use occurring in the thirtythird year of Edward I
It has through the ages been jealously maintained by courts of law as a check upon the illegal usurpation of power by the executive at the cost of the liege
 The existence of the power of the courts to issue a writ of habeas corpus is regarded as one of the most important characteristic of democratic states under the rule of law
The significance of the writ for the moral health of the society has been acknowledged by all jurists
Hallam described it as the principal bulwark of English liberty
The uniqueness of habeas corpus in the procedural armoury of our law cannot be too often emphasised
It differs from all others remedies in that it is available to bring into question the legality of a person s restraint and to require justification for such detention
of course this does not mean that prison doors may readily be opened
It does mean that explanation may be exacted why they should remain closed
It is not the boasting of empty rhetoric that has treated the writ of habeas corpus as the basic safeguard of freedom
The great writ of habeas corpus has been for centuries esteemed the best and sufficient defence of personal freedom see Human Rights  Fundamental Freedoms by Jagdish Swarup page 60
As article 226 is an integral part of the Constitution the power of the High Court to enquire in proceedings for a writ of habeas corpus into the legality of the detention of persons cannot in my opinion lie denied
Although the Indian Constitution as mentioned by Mukherjea CJ
in the case of Ram Jawaya Kapur supra has not recognised the doctrine of separation of powers in its absolute rigidity the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption by one organ or part of the State of functions that essentially belong to another
The executive can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature
It can also when so empowered exercise judicial function in a limited way
The executive however can never go against the provisions of the Constitution or of any law
To quote the words of Dr Ambedkar in the Constituent Assembly Every Constitution so far as it relates to what we call parliament democracy requires three different organs of the State the executive the judiciary and the legislature
I have  
not anywhere found in any Constitution a provision saying that the executive shall obey the legislature nor have I found anywhere in any Constitution a provision that the executive shall obey the judiciay
Nowhere is such a provision to be 1 609
22 833 Sup CI76 290 found That is because it is generally understood that the provisions of the Constitution are binding upon the different organs of the State
Consequently it is to be presumed that those who work the Constitution those who compose the Legislature and those who compose the executive and the judiciary know their functions their limitations and their duties
It is therefore to be expected that if the executive is honest in working the Constitution then the executive is bound to obey the Legislature without any kind of compulsory obligation laid down in the Constitution
Similarly if the executive is honest in working the Constitution it must act in accordance with the judicial decisions given by the Supreme Court
Therefore my submission is that this is a matter of one organ of the State acting within its own limitations and obeying the supremacy of the other organs of the State
In so far as the Constitution gives a supremacy to that is a matter of constitutional obligation which is implicit in the Constitution itself
 It was further observed by him No constitutional Government can function in any country unless any particular constitutional authority remembers the fact that its authority is limited by the Constitution and that if there is any authority created by the Constitution which has to decided between that particular authority and any other authority then the decision of that authority shall be binding upon any other organ
That is the sanction which this Constitution gives in order to see that the President shall follow the advice of his Ministers that the executive shall not exceed in its executive authority the law made by Parliament and that the executive shall not give its own interpretation of the law which is in conflict with the interpretation of the judicial organ created by the Constitution Article 226 of the Constitution confers power upon the High Courts of issuing appropriate writs in case it is found that the executive orders are not in conformity with the provisions of the Constitution and the laws of the land
Judicial scrutiny of executive orders with a view to ensure that they are not violative of the provisions of the Constitution and the laws of the land being an integral part of our constitutional scheme it is not permissible to exclude judicial scrutiny except to the extent such exclusion is warranted by the provisions of the Constitution and the laws made in accordance with those provisions
There is as already mentioned a clear demarcation of the spheres of function and power in our Constitution
The acceptance of the contention advanced on behalf of the appellants would mean that during the period of emergency the courts would be reduced to the position of being helpless spectators even if glaring and blatant instances of deprivation of life and personal liberty in contravention of the statute are brought to their notice
It would also mean that whatever 291 may be the law passed by the legislature in the matter of life and personal liberty of the citizens the executive during the period of emergency would not be bound by it and would be at liberty to ignore and contravene it
It is obvious that the acceptance of the contention would result in a kind of supremacy of the executive over the legislative and judicial organs of the State and thus bring about a constitutional imbalance which perhaps was never in the contemplation of the framers of the Constitution
The fact that the government which controls the executive has to enjoy the confidence of the legislature does not detract from the above conclusion
The executive under our constitutional scheme is not merely to enjoy the confidence of the majority in the legislature it is also bound to carry out the legislative intent as manifested by the statutes passed by the legislature
The Constitution further contemplates that the function of deciding whether the executive has acted in accordance with the legislative intent should be performed by the courts
The cases before us raise questions of utmost importance and gravity questions which impinge not only upon the scope of the different constitutional provisions but have impact also upon the basic  
values affecting life liberty and the rule of law
More is at stake in these cases than the liberty of a few individuals or the correct construction of the wording of are order
What is at stake is the rule of law
If it could be the boast of a great English judge that the air of England is too pure for a slave to breathe cannot we also say with  I justifiable pride that this sacred land shall not suffer eclipse of the rule of law and that the Constitution and the laws of India do not permit life and liberty to be at the mercy of absolute power of the executive a power against which there can be no redress in courts of law
even if it chooses to act contrary to law or in an arbitrary and capricious manner
The question is not whether there can be curtailment of personal liberty when there is threat to the security of the State
I have no doubt that there can be such curtailment even on an extensive scale in the face of such threat
The question is whether the laws speaking through the authority of the courts shall be absolutely silenced and rendered mute because of such threat
No one can deny the power of the State to assume vast powers of detention in the interest of the security of the State
It may indeed be necessary to do  so to meet the peril facing the nation
The considerations of security of the State must have a primacy and be kept in the forefront compared to which the interests of the individuals can only take a secondary place
The motto has to be Who lives if the country dies
Extraordinary powers are always assumed by the government in all countries in times of emergency because of the extraordinary nature of the emergency
The exercise of the power of detention it is well settled depends upon the subjective satisfaction of the detaining authority and the courts can neither act as courts of appeal over the decisions of the detaining authority nor can they substitute their own opinion for that of the authority regarding the necessity of detention
There is no antithesis between the power of the Lord Mansfield in the case of James Sommersett 1772 State Trials page 1 292 State to detain a person without trial under a law of preventive detention and the power of the court to examine the legality such detention
As observed by Lord Atkin in Rex vs Hallidayl while dealing with the argument that the Defence of Realm Consolidation Act or 1914 arid the regulation made under it deprived the subject of his right under the several Habeas Corpus Acts that is all entire misconception
The subject retains every right which those statutes confer upon him to have tested and determined ill a court of law by means of a writ of Habeas Corpus addressed to the person in whose custody he may be the legality of the order or warrant by virtue of which he is given into or kept in that custody
To quote the words of Lord Macmillan in the case of Liversidge vs Anderson2
It is important to have in mind that the regulation question is a war measure
This is not to say that the Court sought to adopt in war time canons of construction different from those they follow in peace time
The fact that the nation is at war is no justification for any relaxation of the vigilance of the Courts in seeing that the law is duly observed especially in a matter so fundamental as the liberty of the subject
Rather the contrary
 In dealing with an application for a writ of habeas corpus the court only ensure that the detaining authorities act in accordance with the law of preventive detention
The impact upon the individual of the massive and comprehensive powers of preventive detention with which the administrative officers are armed has to be cushioned with legal safeguards against arbitrary deprivation of personal liberty if the premises of the rule of law is not to lose its content and become meaningless
The chances of an innocent person being detained under a law providing for preventive detention on the subjective satisfaction of an administrative authority are much greater compared to the possibility of an innocent person being convicted at trial in a court of law
It would be apposite in this context to refer to the observations of Professor Alan M Dershowitz The available evidence suggest that our system of determining past guilt results in erroneous conviction of relatively few innocent people
We really do seem to practice what we preach about preferring the acquittal of guilty men over the conviction of innocent men
But the indications are that any system of predicting future crimes would result in a vastly larger number of erroneous confinements that is confinements of persons predicted to engage in violent crime who would not in fact do so
Indeed all the experience with predicting violent conduct suggests that in order to spot a significant proportion of future violent criminals we would have to reverse the traditional maxim of the criminal law and adopt a philosophy that it is better to confine ten people who would not commit predicted crimes than to release one who would  1 on page 272
 293 see p 313 Crime Law and Society by Goldstein and Goldstein 
It would therefore seem to be a matter of melancholy reflection if the courts were to stay their hand and countenance laxity or condone lapses in relation to compliance with requirements prescribed by law for preventive detention
In England there was no suspension of the power of the courts to issue a writ of habeas corpus during the First World War and the Second World War
In India also there was no absolute bar to approaching the courts during the Sino Indian hostilities of 1962 and the Indo Pak wars of 1965 and 1971
It has not been suggested that because of the existence of the powers of the court to issue writs of habeas corpus war efforts were in any way prejudicially affected
The United Nations  Economic and Social Council endorsed the general agreement reached at the Baguio Seminar that the writ of habeas corpus or similar remedy of access lo the courts to test the legality and bona fides of the exercise of the emergency powers should never be denied to the citizen
It drew attention to the following passage from the report of the seminar All members recognised that in times of emergency it might be necessary to restrict temporarily the freedom of the individual
But they were firmly of the view that whatever temporary restrictive measures might be necessary recourse to the courts through the right of habeas corpus or other similar remedy should never be suspended
Rather the legislature could if necessary subject to well defined procedures safeguarding human dignity
authorise the temporary detention of persons for reasons specified in the law
By that means the executive can act as emergency may require but the ultimate judicial protection of individual liberty is preserved
Members hold strongly that it is a fundamental principle that the individual should never be deprived of the means of testing the legality of his arrest or
custody by recourse to judicial process even in times of emergency
If that principle is departed from the liberty of the individual is immediately put in great peril
l am therefore of the view that there is no sufficient ground to interfere with the view taken by all the nine High Courts which went into the matter that the Presidential order of June 27 1975 did not affect the maintainability of the habeas corpus petitions to question the legality of the detention orders and that such petitions could be proceeded with despite that order
We may now deal with the second question regarding the scope and extent of judicial scrutiny in petitions for writ of habeas corpus relating to persons detained under MISA
For this purpose it would be appropriate to first deal with the position under the above law so far as cases not covered by section 16A are concerned
According to section 31 of MISA the authorities specified in the sub section may if satisfied with respect to any person including a foreigner that with a view to preventing him from acting in any manner prejudicial to i the defence of India the relations of India with foreigner powers or the security of India or ii the security of 294 the State or the maintenance of public order or iii the maintenance of supplies and services essential to the community it is necessary so to make an order that such person be detained
The words if satisfied indicate that the satisfaction of the authority concerned is a condition precedent to the making of a detention order
Unless therefore the authority concerned is satisfied on the material before it than it is necessary to detain a person with a view to prevent him from indulging in any of the specified prejudicial activities it has no power to make an order for his detention
Section 3 also contains an implied injunction that the said authority shall not detain a person under that section for reasons other than those specified therein
Although the satisfaction contemplated by the sub section is the subjective satisfaction of the authority concerned it is necessary that it should be arrived at in an objective manner
It is consequently essential that the facts on the basis of which the authority concerned reaches the conclusion that it is necessary to detain a person should have a rational nexus or probative value and by germane to the object for which such detention is allowed under section 31 of MISA
In case the facts which are taken into account are extraneous not germane or do not have any live link or reasonable connection with the object for which the detention order can be made the order would be liable to be quashed
Even if one out of the many grounds on which a detention order is based is not germane or legally not tenable the detention order would be quashed because it is difficult to predicate that the detaining authority would have come to the requisite satisfaction even in the absence of that ground
It is plainly not possible to estimate as to how far the irrelevant or untenable ground operated on the mind of the appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was made
To Say that the other ground which still remains is quite sufficient to sustain the order would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute
A law of preventive detention is not punitive but precautionary
and preventive
The power of detention under such law is basel on circumstance of suspicion and not on proof of allegation as is required at a regular trial for the commission of an offence
Such a power is exercised because of apprehension of future prejudicial activity on the part of the person ordered to be detained judged in the light of his past conduct and propensity
The order for preventive detention in such cases postulates prior restraint so that the mischief apprehended at the hands of the person ordered to be detained might not materialise
The consequences of waiting and declining to take action against that person till the mischief is actually clone would quite often be disastrous and the nation may in some cases have to pay a heavy price for such abstention
The quantum of material available regarding the conduct and propensity of a person may not be sufficient to warrant his conviction in a court of law for an offence and yet if the material is germane to the object for which detention order can legally be made and the detaining authority is satisfied in view of that material regarding the necessity of making a detention order such order made by that authority would be upheld as being in accordance with 295 law
It is also not difficult to visualise a situation wherein serious crimes are committed in broad daylight and yet the witnesses to the crime are so much terrified and awestricken that they dare not depose against the culprits in a court of law
In such cases also because of the difficulty of securing the conviction of the culprits the courts have upheld the detention orders if the activities of the culprits are of such a nature as has a nexus with the object for which detention order can be made
In a petition for a writ of habeas corpus the courts do not normally question the veracity and sufficiency of the material on the basis of which the authority concerned arrives at the conclusion regarding the necessity of detention
In case the detenu challenges the correctness or truth of the allegations on the basis of which the detention order is made he should normally do so by means of representation contemplated by clause 5 of article 22
It is legitimate to expect that the authority concerned and the advisory board when the matter comes up before them shall take into account the stand taken by the detenu regarding those allegations
It would be also their function to give consideration to any fresh material which may be produced before them regarding the truth and correctness of those allegations
In a habeas corpus petition if it becomes apparent on the record from the admission made by the detaining authority in the return or some other evidentiary material of unquestioned authenticity and probative value that some of the alleged facts upon the basis of which detention order is made are non existent the court would be well justified in quashing the detention order
A court apart from that cannot go behind the truth of the alleged facts If the material is germane to the object for which detention is legally permissible and an order for detention is made on the basis of that material the courts cannot sit as a court of appeal and substitute their own opinion for that of the authority concerned and hold that the authority concerned should not have arrived at the conclusion regarding the necessity of detention
At the same time it is necessary that the authority concerned before deciding to detain a person should apply its mind to the facts before lit in a fair and reasonable manner
If the conclusion arrived at is so unreasonable that no reasonable authority could ever come to it the legitimate inference would be that the authority concerned did not apply its mind to the relevant facts and did not honestly arrive at the conclusion
To use the words of Lord Halsbury in Shrape vs Wakefield 1   when it is said that something is to be done with in the discretion of the authorities  that something is to be done according to the rules of reason and justice not according to private opinion  according to law and not humour
It is to be not arbitrary vague fanciful but legal and regular
 Likewise if there were no grounds as observed by Lord Morton in Ross vs Papadopollos2 or which the authority concerned could he satisfied the court might infer either that the authority did not honestly form that view or that in forming it the authority could not 1 p 179
2 on p 33
296 have applied its mind to the relevant facts
The courts would also interfere if the power of detention is exercised malafide not in good faith or for an ulterior purpose
It would follow from the above that if the power of detention is exercised for an improper purpose ie a purpose not contemplated by the statute the order for detention would be quashed
Between malice in fact and malice ill law as observed by Viscount Haldana LC in the case of Shearer vs Shields1 there is a broad distinction which is not peculiar to any particular system of jurisprudence
A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind he is taken to know the law and he must act within the law
He may therefore be guilty of malice in law although so far as the state of his mind is concerned
 he acts ignorantly and in that sense innocently
Malice in fact is quite a different thing it means an actual malicious intention on the part of the person who has done the wrongful act and it may be in proceedings based on wrongs independent of contract a very material ingredient in the question of whether a valid cause of action can be stated
The above principle was applied by this Court in detention matters in Bhut Nath vs State of West Bengal2
Normally it is the past conduct or antecedent history of a person which shows a propensity or attendency to act in a particular manner The past conduct or antecedent history of a person can therefore be appropriately taken into account in making a detention order
It is indeed largely from the past events showing tendencies or inclinations of a person that an inference can be drawn that he is likely in the future to act in a particular manner
In order to justify such an inference
it is necessary that such past conduct or antecedent history should ordinarily be proximate in point of time
It would for instance be normally irrational to take into account the conduct and activities of a person which took place ten years before the date of his detention and say that even though after the said incident took place nothing is known against the person indicating his tendency to act in a prejudicial manner even so on they strength of the said incident which is ten
years old the authority is satisfied that his detention is necessary
It is both inexpedient and undesirable to lay down an inflexible test as to how far distant the past conduct or the antecedent history should be for reasonably and rationally justifying the conclusion that the person concerned if not detained may indulge in prejudicial activities
The nature of the activity would have also a bearing in deciding the question of proximity
If for example a person who has links with a particular foreign power is known to have indulged in subversive activities when hostilities broke out with that foreign power and hostilities again break out with that foreign power after ten years the authorities concerned if satisfied on the basis of the past activities that it is necessary to detain him with a view to preventing him from acting in a manner prejudicial to the security of India might well pass a 1 2  297 detention order in respect of that person
The fact that in such a case there is a time lag of ten years between the activities of the said person and the making of the detention order would not vitiate such an order
Likewise a remote prejudicial activity may be so similar to a recent prejudicial activity as may give rise to an inference that the two are a part of chain of prejudicial activities indicative of a particular inclination
In such an event the remote activity taken along with the recent activity would retain its relevance and reliance upon it would not introduce an infirmity
If however in a given case and in the context of the nature of activity the time lag between the prejudicial activity of a detenu and the detention order made because of that activity is ex facie long the detaining authority should explain the delay in the making of the detention order with a view to show that there was proximity between the prejudicial activity and the detention order
If the detaining authority fails to do so in spite of an opportunity having been afforded to it a serious infirmity would creep into the detention order see Rameshwar Singh vs District Magistrate Burdwan  Anr1 and Sk
Abdul Munnaf vs State of West Bengal2 
One other requirement of a valid order of detention is that the grounds of detention which are communicated to the detenu should not be vague so that he may not be handicapped in making an effective representation against the detention order
Both article 22S of the Constitution and section 8  1  of MISA refer to such representation and provide that the detaining authority shall as soon as may be and in any case not later than the prescribed period communicate to the person detained the grounds on which the detention order has been made and shall afford him the earliest opportunity of making representation against the order
In view of the Presidential order suspending the right of a person to move any court for enforcement of specified fundamental rights including the one under article 225 it may with plausibility be argued that the vagueness of grounds of detention would not warrant the quashing of such detention order during the pendency of the Presidential order on the score of violation of article 22S
The Presidential order would however not stand in the way of the court quashing the detention order on the score of the infirmity of the vagueness of grounds of detention because of the contravention of section 8  1  of MISA
Every law providing for preventive detention contains certain procedural safeguards
It is imperative that there should be strict compliance with the requirements of those procedural safeguards to sustain the validity of detention
Detention without trial results in serious inroads into personal liberty of an individual
In such cases it is essential to ensure that there is no deviation from the procedural safeguards provided by the statute
In the matter of even a criminal trial it is procedure that spells out much of the difference between the rule of law and the rule by whim and caprice
The need for strict adherence to strict procedural safeguards is much greater when we are dealing with preventive detention which postulates detention of a 1  A 1
R 298 person even though he is not found guilty of the commission of an offence
To condone or allow relaxation in the matter of compliance with procedural requirements would necessarily have the effect of practically doing away with even the slender safeguards provided by the legislature against the arbitrary use of the provisions relating to preventive detention
The history of personal liberty we must bear in mind is largely the history of insistence upon procedure
I am therefore of the view that it would be wholly inappropriate to countenance any laxity in the matter of strick compliance with procedural requirements prescribed for preventive detention
The observations made in the case of Kishori Mohan vs State of West Bengal1 have relevance
It was observed by this Court in that case 
The Act confers extraordinary power on the executive to detain a person without recourse to the ordinary laws of the land and to trial by courts
Obviously such power places the personal liberty of such a person in extreme peril against which he is provided with a limited right of challenge only
There can therefore be no doubt that such a law has to be strictly construed
Equally also the power con feared by such a law has to be exercised with extreme care and scrupulously within the bounds laid down in such a law
Question then arises as to how far are the recitals in the order of detention binding upon the court and upon whom and to what extent does the onus lie in a petition for a writ of habeas corpus relating to a detained person
In this respect I find that in the case of King Emperor vs Sibnath Banerji2 the Judicial Committee speaking through Lord Thankerton approved the following observation of the learned Chief Justice of the Federal Court It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order particularly where the recital purports to state as a fact the carrying out of what I regard as a condition necessary to the valid making of that order
In the normal case the existence of such a recital in a duly authenticated order will in the absence of any evidence as to its accuracy be accepted by a court as establishing that the necessary condition was fulfilled
The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate
 The matter was considered by this Court  by the Constitution Bench of this Court in the case of G Sadanandan vs State of Kerala  Anr
supra and it was observed as under After all the detention of a citizen in every case is the result of the subjective satisfaction of the appropriate authority and so if a prima facie case is made by the petitioner that his detention is either mala fide or is the result of the casual approach adopted by the appropriate authority the 1 A T R 1 71 1 A 241 
299 appropriate authority should place before the Court sufficient material in the form of proper affidavit made by a duly authorised person to show that the allegations made by the petitioner about the casual character of the decision or its mala fides are not well founded
The failure of respondent No 1 to place any such material before us in the pre sent proceedings leaves us no alternative but to accept the plea made by the petitioner that the order of detention against him on the 20th October 19651 and more particularly his continued detention after the 20th October 1965 ale totally invalid and unjustified
 The initial burden is on the detenu to show that at his detention is mala fide or not in accordance with law
If the detenu makes out a prima facie case the burden shifts on the State and it becomes essential for the State to file a good return
Once substantial disquieting doubts are raised by the detenu in the mind of the court regarding the validity of his detention it would be the bounden duty of the State to dispel those doubts by placing sufficient material before the court with a view to satisfy it about the validity of the detention
In case the detenu fails to discharge the initial burden his petition for writ of habeas corpus would be dismissed
Even if the detenu discharges the initial burden and makes out a prima facie case against the validity of his detention but the State files a good return and adduces sufficient material before the court to show that his detention is valid the detenu s petition would be dismissed
In case however the detenu discharges the initial burden and makes out a prima facie case against the validity of his detention and the State fails to file a good return and does not place sufficient material on the record to show that the detention is valid a serious infirmity would creep into the State case as might justify interference by the court and release of the detenu
More than that it is not necessary to say for everything in the final analysis would depend upon the individual facts of the case
We may now turn to the newly added section 16A of MISA
This section was inserted by section 6 of Act 39 of 1975 with effect from June 29 1975
Subsequently there was a further amendment of section 16A by Act 14 of 1976 which was published on January 25 1976
According to subsection 1 of section 16A the provisions of the section would have effect notwithstanding anything contained in MISA or any rules of natural justice during the period of emergency proclaimed on December 3 1971 and June 25 1975 or a period or 12 months from June 25 1975 whichever period was the shortest
Sub sections 2 and 3 provides for the making of a declaration to that effect by the authorities concerned if they are so satisfied on consideration that it is necessary to detain a person for effectively
dealing with the emergency
Sub section 2 deals with cases of persons against whom orders of detention were made under the Act on or after June 25 1975 but before the coming into force of this section viz June 29 1975 while sub section 3 deals with cases of detention in respect of persons against whom orders for detention were made after the coming into force of the section
The provision to sub sectional 3 provides for review and the necessity of confirmation within fifteen days of the declaration by the State Government in case 300 such declaration is made by an officer subordinate to the State Government
Sub section 2A provides for deemed approval of a detention order made by an officer subordinate to the State Government in case the State Government makes a declaration that the detention of the person ordered to be detained is necessary for dealing effectively with the emergency
Sub section 4 provides for reconsideration at intervals not exceeding four months of the necessity of detention of a person in respect of whom a declaration is made under sub section 2 or 3
According to sub section 5 in making any review consideration or reconsideration under sub sections 2 3 or 4 the appropriate Government or officer may act on the basis of the information and materials in its or his possession without communicating or disclosing any such information or materials to the person concerned or affording him any opportunity of making any representation against the making under sub section 2 or the making or confirming under sub section 3 or the non revocation under sub section 4 of the declaration in respect of him
Sub sections 6 and 7 provide inter alia that sections 8 to 12 shall not apply in the case of a person detained under a detention order to which the provisions of sub sections 2 and 3 apply
Sub section 8 authorises the Central Government whenever it considers it necessary so to do to require the State Government to furnish to the Central Government the information arid materials on the basis of which declaration has been made or confirmed or not revoked and such other information and materials as the Central Government may deem necessary
It would appear from what has been stated above that once a declaration is made with respect to a detenu under sub sections 2
or 3 of section 16A of MISA the provisions of sections 8 to 12 of MISA would not apply to such a detenu
The result would be that the grounds of the order of detention would not be disclosed to the person affected by the order
There would also be no reference of the case of such a person to the Advisory Board
We may now turn to sub section 9 of section 16A
According to this sub section notwithstanding anything contained in any other law or any rule having the force of law the grounds on which an order of detention is made or purported to be made under sections against any person in respect of whom a declaration is made under sub section 2 or sub section 3 and any information or materials on which such grounds or a declaration under sub section 2 or a declaration or confirmation under sub section 3 or the non revocation under sub section 4 of a declaration are based shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose and save as otherwise provided in this Act no one shall communicate or disclose any such ground information or material or any document containing such ground information or material
According to clause b of sub section 9 no person against whom an order of detention is made or purported to be made under section 3 shall be entitled to the communication or disclosure of any such ground information or material as is referred to in clause a or the production to him of any document containing such ground information or material
301 So far as the impact of section 16A9 is concerned on the extent of the power of judicial scrutiny in writs of habeas corpus relating to persons detained under MISA I am of the view that the matter should not be gone into in these appeals for the following reasons
Out of the nine High Courts which dealt with the question of maintainability of petitions for writs of habeas corpus only two namely Rajsthan High Court and Nagpur Bench of Bombay High Court have gone into this aspect while the other seven have not expressed and view in the matter
Both Rajasthan High Court and Nagpur Bench of the Bombay High Court have upheld the validity of section 16A9
While Rajasthan High Court has not read down the provisions of section 16A9 the Nagpur Bench of the Bombay High Court has expressed the view that it would be permissible for the High Court to can for and peruse the grounds in certain circumstances
The Nagpur Bench it may be pointed out dealt with the provisions of section 16 A9 as they then existed before its amendment by Act 14 of 1976
Before us arguments have been addressed on behalf of the respondents challenging the validity of section 16A9 on the ground that it is violative of article 226 inasmuch as it prevents the High Court from effectively exercising the jurisdiction under that article to issue was of habeas corpus
In my opinion it would not be permissible in these appeals against orders disposing of preliminary objection to decide the question of validity of section 16A9
It is manifest that any decision on the question of the validity of section 16A9 would result either in upholding the validity of the provision or in striking it down
The latter course is out of question for it would be plainly impermissible to strike down the provision in appeal by the State when the validity of such provision has been upheld by the High Court
Like wise it would he impermissible in these appeals to record a finding that the ambit of judicial scrutiny is greater than that found by the High Court even though this Court on consideration of the relevant provisions comes to that conclusion
There is no appeal before us by the detenu respondents
This Court in appeal by the State cannot enlarge the area of the unfavourable decision qua the State and make its position worse compared to what it was before the filing of the appeal
Procedural propriety in matters relating to appeals forbids such a course
The appeals before us are primarily against the orders of the High Court disposing of the preliminary objections relating to the maintainability of petitions under article 226 for writs of habeas corpus in view of the Presidential order
The question of extent of judicial scrutiny in the light of section 16A should in my opinion be gone into when the whole matter is at large before us and we are not inhibited by procedural and other constraints from going into certain aspects which have a vital bearing
It is primarily for the High Courts before which the matters are pending to decide the question area of judicial scrutiny in the light of section 16A9 as amended by Act 14 of 1976
A course which has the effect of bypassing the High Courts and making this Court in appeals from orders on preliminary objection to decide the matter even before the matter has been considered by the High Court in the light of section 16A as amended by Act 14 of 1976 should in my opinion be avoided
302 The observations on pages 658 and 659 in the case of J K Synthetics Ltd vs J K Synthetics Mazdoor Union 1 can be of no assistance in this case because what has been laid down there is that the respondent can support an award of an Industrial Tribunal on a ground no adopted by the Tribunal so long as in the final result the amount award ed is not exceeded
The observations in that case do not warrant the enlargement of the area of unfavourable decision against an appellant in the absence of an appeal by the respondent
Nor does that decision justify adoption of a course which might conceivably lead to such result
Likewise no assistance can be derived from clause 3 of article 132 of the Constitution because of the fact that the appeal against the order of the Rajsthan High Court has been filed in pursuance of a certificate of fitness granted under that article
The only point on which the Rajasthan High Court has decided against the appellant is regarding the maintainability of the petition under article 226
The effect of article 1323 would only be that it would be permissible to assail the order of the High Court on the question of Maintability of the petition under article 226 not only on the ground relating to the question of as to the interpretation of the Constitution mentioned in the order granting the certificate but also with the leave of this Court on other grounds
It is however not the effect of article 1323 that if the High Court in the impugned order decides two distinct preliminary issues one in favour of one party and the other in favour of the opposite party this Court in an appeal by only one party against that order of the High Court can also go into the correctness of the issue which has been decided in favour of the appellant
The fact that the respondents in these appeals have as a matter of abundant caution addressed arguments on sub section 9 of section 16A so that the submissions of the appellants on that point may not remain unanswered would not justify departure from the principle that this Court cannot in the absence of an appeal by the respondent adopt a course which might conceivably enlarge the area of unfavourable decision against the appellant
I am therefore of the view that the appropriate occasion for going into the question of the constitutional validity of section 16A9 of MISA and its impact on the power and extent of judicial scrutiny in writs of habeas corpus would be when the State or detenu whosoever is aggrieved comes up in appeal against the final judgment in any of the petitions pending in the High Courts
The whole matter would then be at large before us and we would not be inhibited by procedural and other constraints referred to above
It would not in my opinion be permissible or proper to short circuit the whole thing and decide the matter by bypassing the High Courts who are seized of the matter
I may now summarise my conclusions 1 Article 21 cannot be considered to be the sole repository of the right to life and personal liberty
2 Even in the absence of article 21 in the Constitution the State has got no power to deprive a person of his life or personal liberty without the authority of law
That is 1  303 the essential postulate and basic assumption of the rule of law in every civilised society
3 According to law in force in India before the coming into force of the Constitution no one could be deprived of his life or personal liberty without the authority of law
Such a law continued to be in force after the coming into force of the Constitution in view of article 372 of the Constitution
4 Startling consequences would follow from the acceptance of the contention that consequent upon the issue of the Presidential order in question no one can seek relief from courts during the period of emergency against deprivation of life and personal liberty
If two constructions of the Presidential order were possible the court should lean in favour of a view which does not result in such consequence
The construction which does not result in such consequences is not only possible it is also preeminently reasonable
5 In a long chain of authorities this Court has laid stress upon the prevalence of the rule of law in the country according to which the executive cannot take action prejudicial to the right of an individual without the authority of law
There is no valid reason to depart from the rule laid down in those decisions some of which were given by Benches larger than the Bench dealing with these appeals
6 According to article 21 no one can be deprived or his life or personal liberty except in accordance with procedure established by law
Procedure for the exercise of power of depriving a person of his life or personal liberty necessarily postulates the existence of the substantive power
Then article 21 is in force law relating to deprivation of life and personal liberty must provide both for the substantive power as wen as the procedure for the exercise of such power
When right to move any Court for enforcement of right guaranteed by article 21 is suspended it would have the effect of dispensing with the necessity of prescribing procedure for the exercise of substantive power to deprive a person of his life or personal liberty it cannot have the effect of permitting an authority to deprive a person of his life or personal liberty without the existence of such substantive power
7 A Presidential order under article 3591 can suspend during the period of emergency only the right to move any court for enforcement of the fundamental rights mentioned in the order
Rights created by statutes being not fundamental rights can be enforced during the period of emergency despite the Presidential order
Obligations and liabilities flowing from statutory provisions likewise remain unaffected by the Presidential order
Any redress sought from a court of law on the score of breach of statutory pro visions would be outside the purview of article 3591 and the Presidential order made thereunder
304 8 Article 226 under which the High Courts can issue writs of habeas corpus is an integral part of the Constitution
No power has been conferred upon any authority in the Constitution for suspending the power of the High Court to issue writs in the nature of habeas corpus during the period of emergency
Such a result cannot be brought about by putting some particular construction on the presidential order in question 9 There is no antithesis between the power of the State to detain a person without trial under a law of preventive detention and the power of the court to examine the validity of such detention
In exercising such power the courts only ensure that the detaining authority acts in accordance with the law providing for preventive detention
10 There is no sufficient ground to interfere with the view taken by an the nine High Courts which went into the matter that the Presidential order dated June 27 1975 did not affect the maintainability of the habeas corpus petitions to question the legality of the detention orders
11 The principles which should he followed by the courts in dealing with petitions for writs of habeas corpus to challenge the legality of detention are well established
12 The appropriate occasion for this Court to go into the constitutional validity of section 161A9 of MISA and its impact on the power and extent of judicial scrutiny in writs of habeas corpus would be when the State or a detenu whosoever is aggrieved comes up in appeal against the final judgment in any of the petitions pending in the High Courts
The whole matter would then be at large before this Court and it would not be inhabited by procedural and other constraints
It would not be permissible or proper for this Court to short circuit the whole thing and decide the matter by by passing the High Courts who are seized of the matter
Before I part with the case I may observe that the consciousness that the view expressed by me is at variance with that of the majority of my learned brethern has not stood in the way of my ex pressing the same
I am aware of the desirability of unanimity if possible
Unanimity obtained without sacrifice of conviction comments the decision to public confidence
Unanimity which is merely formal and which is recorded at the expense of strong conflicting views is not desirable in a court of last resort
As observed by Chief Justice Hughes 1 judges are not there simply to decide cases but t to decide them as they think they should be decided and while if may be regrettable that they cannot always agree it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice
A dissent in a court of last resort to use his words is an appeal lo the brooding spirit of the law to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed
The appeals are disposed of accordingly
1 Prophets with Honor by Alan Barth 1974 Ed
P 3 6
305 BEG J The two principal questions placed before us for determination in these appeals from decisions given by various High Courts on certain preliminary objections to the maintainability and hearing of Habeas Corpus petitions under Article 226 of our Constitution have been stated as follows by the Attorney General of India 1
Whether in view of the Presidential order dated June 27 1975 under Clause 1 of Article 359 any writ petition is maintainable under Article 226 before a High Court for Habeas Corpus to enforce the right to personal liberty of a person detained under the on the ground that the order of detention or the continued detention is for any reason not under or in compliance with  2
If such a petition is maintainable what is the scope or ex tent of judicial scrutiny particularly in view of the aforesaid Presidential order which covers inter alia Clause 5 of Article 22 and also in view of sub section 9 of Section 16A of the  If the only reason on which a detention is assailed could be that the provisions of the 26 of 1971 hereinafter referred to as the Act  have not been complied with there could be little difficulty in holding having regard to the natural and obvious meaning of the suspension of the right to move any Court for the enforcement of the fundamental right to personal liberty protected by Article 21 of the Constitution that this right with whatever it evolved from or embraced could not be the basis for any claim to its enforcement during the Emergency
An that would then remain to consider would be the exact point at which and the form in which the order of the Court denying the petitioner an enforcement of the right could be passed
The last part of the first question however also brings into the area of discussion the case where a petitioner alleges that for any reason his detention fans completely outside the Act
Detenues allege not merely infraction of some provision of the Act under which a detention is ordered but more often that the detention is for extraneous reasons falling either entirely or partially outside the Act
Malafides is almost invariably alleged presumably on the assumption that almost everything the detenue considers either wrong or erroneous or improper must be mala fide
Arguments addressed to us on behalf of the detenues have raised a host of hypothetical questions such as What would be the position if the order of detention on the face of it either fans outside the provisions of the Act or is made mala fide  Would a detention order by any Government servant without even an ostensible or purported statutory authority to support it not stand on the same footing as a detention by a private person Would remedy against detention which may be patently illegal
without need for any real investigation into facts at an also be barred  Could remedy by way of a writ of Habeas Corpus against any illegal detention by any one in this country 22 833 Sup CI76 306 under any circumstances be held to be suspended during the Emergency  The next steps in the argument on behalf of detenues consisted of attempts to show that there could be no distinction in principle between an order which is prima facie ultra vires or made mala fide and one which can be shown to be that only if the facts and circumstances surrounding a detention were fully investigated in a Court
Processes of reasoning based on hypothetical cases put forward for consideration by us by learned Counsel for tile detenus seek by stages to so expand the area of maintainability and investigation on claims for writs of Habeas Corpus in the High Courts that if we accept them the result would be that Article 359 of the Constitution and the Presidential orders of 1975 made under it would become entirely meaningless and infructuous
It seems to me that the two questions set out above could very wen be compressed into a single question To what extent if at an can a High Court be moved to assert a right to personal liberty by means of a petition under Article 226 for a writ of Habeas Habeas Corpus during the operation of the Presidential order of 27th June 1975  Speaking for myself I am extremely reluctant to embark on a consideration and decision of any pure question of law
In cases coming up before Courts no question of law can be pure in the sense that it has no bearing on the facts of a particular case to which it must necessarily be related
Neither Article 136 nor Article 226 of the Constitution is meant for the exercise of an advisory jurisdiction
Attempts to lay down the law in an abstract form unrelated to the facts of particular cases not only do not appertain to the kind of jurisdiction exercised by this Court or by the High Courts under the provisions mentioned above but may result in misapplications of the law declared by Courts to situations for which they were not intended at an
Learned Counsel for the detenus have tried to induce us to answer many questions which may arise in purely hypothetical situations some of which seem to me to be far removed from the realms of reality
We cannot assume that those who exercise powers of detention are bound to do so as a rule as though they were demented reports without any regard for law justice reason or honesty of purpose solely for achieving objects other than those which are really meant to be served by the Act
Both sides however desire that we should answer questions indicated above on the assumption that the provisions of law contained in the Act have been infringed in some way by the detaining authorities in a particular case
They want us to indicate degrees of transgression of the provisions of the Act if any which can justify interference by the High Courts in Habeas Corpus proceedings
As the facts of no particular case are before s we can only answer the questions before us with the help where necessary of appropriate hypothetical examples
The learned Attorney General has very frankly and honestly submitted that there was no need to bestow upon actions of the detaining authorities the protection given to them only for the duration of the Emergency proclaimed under Article 3521  of the Constitution if the 307 President did not really intend to confer certain immunities from judicial scrutiny and interference upon detentions by executive authorities even if some of them were contrary to the letter of the law so that certain over riding interests of national security and independence may not be jeopardized
The Attorney General s submission is that the risks of misuse of powers by the detaining officers and authorities which are certainly there must be presumed to have been over ridden by the higher claims of national security which the proclamation of emergency denotes
It was pointed out that a citizen or other person who may have been unfairly or illegally detained due to some unfortunate misapprehension or error does not loose his remedy altogether
Only his right to move a Court for the enforcement of any of the rights conferred by Part III of the Constitution would be suspended for the time being
He could always approach higher Governmental authorities
All of them could not be so unreasonable as to deny redress in a case of genuine injustice
The propositions thus stated appear to be so reasonable and are so wen founded as I shall endeavour to show later in the course of this judgment in the Constitutional and legal history and the case law of other countries during periods of Emergency from whose constitutions what has been described as the ancient writ of habeas Corpus has been taken and transplanted into our Constitution that it may seem somewhat surprising that their correctness should be doubted or denied at an
The propositions have however not only been vehemently assailed but the attacks upon them were sought to be supported by attempts to engraft theories upon our Constitution which if accepted win destroy the basic principle of the supremacy of the written Constitution which I attempted in Smt
Indira Nehru Gandhi vs Shri Raj Narain 1 to explain at some length
If the clear and unequivocal language of Article 3591 of our Constitution is the bed rock on which the Attorney General s arguments to sustain the preliminary objections to the maintainability of Habeas Corpus petitions during the Emergency rest learned Counsel for the detenus have put forward theories of a nebulous natural law and a common law which on close scrutiny appear to me to resolve themselves into what according to the notions of learned Counsel for the detenus the law ought to be
Strenuous attempts have been made to dress up these notions in the impressive garb of the Rule of Law which evokes the genuine and our and respectful devotion of lawyers and public spirited citizens
But the mere veneration of a caption without an understanding of what it really denoted in the past and what it means or should mean today is another name for obfuscation of thought
Even in England the reputed home of the Rule of Law the rather loose general and in exact meaning given to the term by Dicey to describe and glorify certain assumedly special characteristics of the English Constitution have given place to more realistic critical and scientific views of the Rule of Law and what Dicey meant by it
Sir 1 1976 2 SCR347
308 Ivor Jennings in The Law and the Constitution 3rd Edn
p 296 pointed out 
Dicey honestly tried in The Law of the Constitution not in his polemical works to analyse but like most he saw the Constitution through his own spectacles and his vision was not exact
The growth of the new functions of the State has made much of his analysis irrelevant
Moreover the argument from history or what is the same thing from the Constitution must be used with discretion
To say that a new policy is unconstitutional  is merely to say that it is contrary to tradition and it must always be considered whether the tradition is relevant to new circumstances
Even if the rule of law as Dicey expounded it had been exact it would not be a sufficient argument to say of any proposal as the Committee on Ministers  Powers said on a minor point that it was contrary to the rule of law
Those who glibly talk of the Rule of Law as expounded by Dicey forget that Prof Dicey had made a very gallant and effective I would not like to use here a colloquial expression desperate to describe it attempt to repel the correctness of what he caned the dark saying of de Tocqueville that the largely conventional English Constitution has no real existence elle n existe point See page 22 of the Dicey s Introduction to the Study of the Law of the Constitution 10th Edn
He was at pains to show that the Constitutional Law of Eng land did exist
It lived and functioned not only in the hearts and minds of Englishmen also reflected in Parliament but through the force of healthy conventions and highly disciplined habits of life and thought of the British people
These conventions and habits had behind them the sanction not only of a powerful and intelligent public opinion but also of the control by the Houses of Parliament wrested from the Crown in the course of historic constitutional struggles over the finances of the nation
Dicey distinguished this peculiarly British Constitutional Law from political ethics which according to him was mis called Constitution Law
It was not he pointed out International law the vanishing point of law
Dicey succeeded at least so far as his statement of the Rule of Law is concerned in doing nothing more than indicating under this heading certain common guiding principles for Courts as wen as Legislators to follow when they needed these
Hence he said that the Rule of law and the legal Sovereignty of Parliament were allies in England
According to him both these principles so operated as to always support and strengthen each other
This idealistic rosy optimism reflecting the Whig tradition of minimum interference with individual freedoms and representing the Constitutional jurisprudence of the hey day of a laissez faire British economic prosperity was destined to be displaced by the more down to the earth pragmatism of the Twentieth Century Britain attempting to meet economic difficulties and distress through socialistic planning and to build a welfare State by making laws which appeared to those brought up on the traditional postulates of Dicey s Rule of Law to deny the validity of its basic assumptions
309 The first of these assumptions or meanings was that any depravation of personal liberty or property must not only be for a distinct breach of law but established in the ordinary legal manner before the ordinary Courts of the land
He contrasted this with every system of government based on the exercise by persons in authority of wide arbitrary or discretionary powers of constraint
He concluded from what he regarded as a basic Feature of the British Constitution that an modes of dispensing justice through specialised administrative authorities and bodies must necessarily be autocratic and unfair
He compared the British system with the one under which Voltaire in 1717 was sent to the Bastille for a poem which he had not written of which he did not know the author and with the sentiments of which he did not agree
The second assumption of Dicey s Rule of law was
Every man whatever be his rank or condition is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals
He overlooked the not infrequent injustice caused in England of his time due to want of adequate remedies against the servants of the Crown by applications of the maxim The King can do no wrong
He wrote With us every official from the Prime Minister down to a constable or a collector of taxes is under the same responsibility for every act done without legal justification as any other citizen
The third assumption on which Dicey s Rule of Law rested was what he caned the predominance of the Legal Spirit which he described as a special attribute of English Institutions
He explained We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution as for example the right to personal liberty or the right of public meeting are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts whereas under many foreign constitutions the security such as it is given to the rights of individuals results or appears to result from the general principles of the constitution
Dicey observed There is in the English constitution an absence or these declarations or definitions of rights so dear to foreign constitutionalists
Such principles moreover as you can discover in the English constitution are like an maxims established by judicial legislation mere generalisations drawn either from the decisions or dicta of judges or from statutes which being passed to meet special grievances bear a close resemblance to judicial decisions and are in effect judgments pronounced by the High Court of Parliament
To put what is really the same thing in a somewhat different shape the relation of the rights of individuals to the principles of the constitution is not quite the same in countries like Belgium where the Constitution is the result of a legislative act as it is in England where the constitution itself is based upon legal decisions
310 Thus Dicey depicted the British Parliament while performing even its legislative functions as if it was a Court following the path shown by judges fined with the spirit of law and with meticulous concern for an the canons of justice
He concluded Our Constitution in short is a Judge made Constitution and it bears on its face an the features good and bad of judge made law
Dicey thought that the difference between the unwritten British Constitution and a written Constituion such as that of Belgium was not merely a formal one but revealed entirely differing approaches to basic freedoms
He observed 
The matter to be noted is that where the right to individual freedom is a result deduced from the principles of the constitution the idea readily occurs that the right is capable of being suspended or taken away
Where on the other hand the right to individual freedom is part of the constitution because it is inherent in the ordinary law of the land the right is one which can hardly be destroyed without a through revolution in the institutions and manners of the nation After making the distinction mentioned above Dicey deals with the so called suspension of the Habeas Corpus Act
He said that it bears a certain similarity to what is caned in foreign countries suspending the constitutional guarantees  
He euphemistically explained But after an a statute suspending the Habeas Corpus Act falls very far short of what its popular name seems to imply and though a serious measure enough is not in reality more than a suspension of one particular remedy for the protection of personal freedom
The Habeas Corpus Act may be suspended and yet Englishmen may enjoy almost all the rights of citizens
The constitution being based on the rule of law the suspension of the constituion as far as such a thing can be conceived possible would mean with us nothing less than a revolution
If Dicey bewitched by the beauties of an unwritten British Constitution could have been shocked by any modern transgressions of the basic principles of his Rule of Law in the Introduction to later editions of his book Dicey modified his earlier views to some extent about
the nature and purposes of Droit Administratif accepted the inevitability of change and noticed the logical consequences of what he himself had described in his Law and opinion in England as the Collectivist or Socialistic trend he would have been even more shocked by the proposition that the cherished principles of his Rule  of Law could override the statute law which the British Parliament could make and unmake in the exercise of what Dicey called the Sovereignty of Parliament
The truth is that Dicey did not at first visualise the possibility of any conflict between the Rule of Law and the principles of Parliamentary Sovereignty in England
And correctly understood and applied there should not be serious conflict between them
But are principles always correctly understood and applied  311 Jennings critically commented upon Dicey s views See The Law and the Constitution 3rd Edn
p 294 as follows The rules which in foreign countries naturally form part of a constitutional code mostly do not exist in England for the recognised or legal supremacy of Parliament presents any fundamental distribution of powers and forbids the existence of fundamental rights
The supremacy of Parliament is the Constitution
It is recognised as fundamental law just as a written constitution is recognised as fundamental law Various Public authorities the Crown the Houses of Parliament the courts the administrative authorities have powers and duties
Most of them are determined by statute
Some are traditional and so are determined  by the common law
The powers of administrative authorities in respect of fundamental liberties  are mainly contained in statutes
But even if they were not I do not understand how it is correct to say that the rules are the consequence of the rights of individuals and not their source
The powers of the Crown and of other administrative authorities are limited by the rights of individuals or the rights of individuals are limited by the powers of the administration
Both statements are correct and both powers and rights come from the law from the rules
Thus Jennings pointed out that what was material was the existence of rules as a part of Constitutional law and not their sources or forms
He tried to show that the basic rule being the supremacy of Statutory law that was The Constitution in Britain
No other rule could compete with it or stand in its way or be a substitute for it
Dicey on the other hand believed that the difference in sources and forms of rules made a great difference in approach and outlook
But Dicey also treated the judge made Rule of Law and the rights guaranteed by a written constitution as alternatives or different modes of protecting same species of rights
He never dreamt of looking upon them both as simultaneously existing and available Under a written Constitution in addition to what such a Constitution contained
Dicey indicated the basic distinction between the Constitutional position in England with an unwritten Constitution where the supremacy of Parliament prevailed and that in the United States of America with a written Constitution which was supreme
But despite the differences in the logical consequences of an unwritten constitution in a country so largely governed by its conventions and disciplined habits of life and thought as Dicey s England and those of the written Constitution of the USA one common feature snared by both English and American systems was the large amount of judicial Constitutional law making which took place in both countries
In Britain although the Parliament is the supreme law giver yet as Dicey pointed out there was out of respect for the judicial function and the Rule of Law an acceptance of judge made law as the constitutional law of the land which the Parliament could alter whenever it 312 liked but did not think of altering presumably because it served very wen the needs of British people who took pride in their judge made law
Of course if Parliament did make a law on any subject and it has made some laws on Constitutional matters also the Courts could not think of questioning the validity of the law so made
In America not only was the doctrine of judicial review of legislation established by Marshall C J in Marbury vs Madison 1 but the due process clauses introduced by the 5th amendment 1791 and by the 14th amendment 1868 of the American Constitution became the most prolific sources of judicial law making
They gave to the American Courts an amplitude of power to indulge in what is caned judicial legislation which our Constitution makers after considerable debate deliberately eschewed by using the expression  procedure established by law instead of the due process of law
Willis adverting to the very skeletal character of the American Constitution said Our original Constitution was not an anchor but a rudder
The Constitution of one period has not been the Constitution of another period
As one period has succeeded another the Constitution has become larger and larger In A K Gopalan vs The State of Madras2 the earliest case in which a comprehensive discussion of fundamental guaranteed freedoms in our Constitution took place Kania C J after referring to observations of Munro of James Russen Lowen of Winis and of Cooley on the American Constitution noted about the nature of our Constitution at p 109 The Constitution itself provides in minute details the legislative powers of the Parliament and the State Legislatures
The same feature is noticeable in the case of the judiciary finance trade commerce and services
It is thus quite detailed and the whole of it has to be read with the same sanctity without giving undue weight to Part III or article 246 except to the extent one is legitimately and clearly limited by the other
The position in this country is clearly one in which the fundamental law found in the Constitution is paramount
The Constitution provides the test for the validity of an other laws
It seeks to deter mine
the spheres of executive and legislative and judicial powers with meticulous care and precision
The judicial function though wider in range when interpreting or applying other articles of the Constitution particularly Articles 14 and 19 the enforcement of which is also suspended during the current Emergency is especially constricted by the elaborate provisions of Articles 21 and 22 which deal with personal liberty and preventive detention
The wider the sweep of the provisions of Article 21 and 22 the more drastic must be the effect of suspending their enforcement
After an suspension does not and cannot mean retention under a disguise
1  2   p 109
313 The only Rule of Law which can be recognised by Courts of our country is what is deducible from our Constitution itself
The Constitution is for us the embodiment of the highest positive law as wen as the reflection of an the rules of natural or ethical or common law Lying behind it which can be recognised by Courts
It seems to me to be legally quite impossible to successfully appeal to some spirit of the Constitution or to any law anterior to or supposed to lie behind the Constitution to frustrate the objects of the express provisions of the Constitution
I am not aware of any Rule of Law or reason which could enable us to do that
What we are asked to do seems nothing short of building some imaginary parts of a Constitution supposed to lie behind our existing Constitution which could take the place of those parts of our Constitution whose enforcement is suspended and then to enforce the substitutes
And we were asked by some learned Counsel though not by an to perform this ambitious task of judicial Constitution making without even using the crutches of implied imperatives of our Constitutional provisions as though we had some plenary legislative Constituent powers
Fortunately Judges in this country have no such powers
And those who are meant to so function as to keep the other authorities and organs of State within the limits of their powers cannot themselves usurp powers they do not possess
That is the path of descent into the arena of political controversy which is so damaging for the preservation of the impartiality and prestige of the Judicial function
We cannot therefore satisfy those who may feel the urge as Omar Khayyam did to shatter what they regard as this sorry scheme of things entire and to remould it nearer their heart s desire 
I think we must make it clear that the spirit of law or the Rule of Law which we recognise cannot however ominously around like some disembodied ghost serving as a substitute for the living Constitution we actually have
It has to be found always within and operating in harmony with and never outside or in contact with what our Constitution enjoins
An that we can do is to faithfully explain what the Constitution and its spirit mean
We cannot alter or twist these
The distinction made above between law as it exists and as it has to be recognised and enforced by the State s judicial organs and the law if we may can it that at an which could only constitute some rules of ethics but could not be enforced at an whatever may be its moral worth was thus stated by John Codman Hurd in his Law of Freedom and Bondage in the United States Negro Universities Press New York Vol
I at p 3 Now jurisprudence is taken to be the science of a rule not merely existing but one which is actually operative or enforced in or by the win of society or the state
The Science of what rule ought to be made operative by the win of the state is a different thing it is a science of rules regarded only as existing whether operative in civil society that is enforced or not
A rule made operative by the authority of society or of the state is a rule identified with the expressed win of so 314 ciety or of the State
The win of the state indicated in some form of expression is the law the subject of jurisprudence and no natural rule which may exist forms a part of the law unless identified with the win of the state so indicated
What the state wins is the conterminous measure of law no pre existing rule is the measure of that win
John Codman Hurd went on to point out that judicial authorities constituted by the State can only carry out the mandates of the positive law which for purposes of enforcement must be deemed to embody an the pre existing enforceable natural and ethical values
Enforceability as an attribute of a legal right and the power of the judicial organs of the State to enforce the right are exclusively for the State as the legal instrument of Society to confer or take away in the legally authorised manner
It follows from these basic premises of our Constitutional jurisprudence that Courts cannot during a constitutionally enjoined period of suspension of the enforceability of Fundamental Rights through Courts enforce what may even be a fundamental right sought to be protected by Part III of the Constitution
The Attorney General has very fairly and rightly repeatedly pointed out that no substantive right whether declared fundamental or not
except the procedural rights converted into substantive ones by Article 32 could be suspended
Even the enforcement in general of an such rights is not suspended
Even the enforcement of specified rights through Courts is suspended for the time being
The enforceability of a right by a constitutionally appointed judicial organ has necessarily to depend upon the fulfillment of two conditions firstly its recognition by or under the Constitution as a right
and secondly possession of the power of its enforcement by the judicial organs
Now if a right is established on facts as a right it will certainly satisfy the first condition
But if the right is unenforceable because the power of its enforcement by Courts is constitutionally suspended or inhibited for the duration of the Emergency its mere recognition or declaration by Courts either as a right or as a fundamental right could not possibly help a petitioner to secure his personal liberty
Article 226 of the Constitution is not meant for futile and unenforceable declarations of right
The whole purpose of a writ of Habeas Corpus is to enforce a right to personal freedom after the declaration of a detention as illegal when it is so found upon investigation
It may be that many moral and natural obligations exist outside the Constitution and even outside any positive law this is not denied by the learned Attorney General at an but their existence is not really relevant for purposes of petitions for writs of Habeas Corpus which lie only to enforce Legally enforceable rights
Neither the existence nor the possibilities of denials of any rights by the detaining officers of the State due to frailities of human nature and errors of judgment are denied by the Attorney General
ALL that is denied is the correctness of the assertion that they are enforceable during the period of Emergency through Courts if they fan within the purview of rights whose enforcement is suspended
315 The result of the few very general observations made above by me before examining in greater depth any of the very large number of connected questions and side issues raised I doubt whether it is necessary or of much use in view of my opinion on the preliminary issue of enforceability to consider an of then even if it were possible for me to do so may be summarised as follows 
Dicey s Rule of Law with special meanings given to it was meant to prove the existence and peculiarities of the uncodified English Constitutional Law
According to Dicey himself these features either did not exist elsewhere or were the very objectives of provisions of written Costitutions of other countries
On Dicey s very exposition no ordinary Judge made law or common law could survive in opposition to statutory law in England or in conflict with a written Constitution where there was one
Enforceability of rights whether they are constitutional or common law or statutory in constitutionally prescribed ways by constitutionally appointed judicial organs is governed solely by he term of the written instrument in a constitution such as curs
The scope for judicial law making on the subject of enforcement of the right to personal freedom was deliberately restricted by our Constitution makers
In any case it is difficult to see any such scope when enforcement itself is suspended
All we can do is to determine the effect of this suspension
We have now to consider in greater detail What is it the enforcement of which is suspended and what if anything remains to be enforced  In this country the procedure for the deprivation as wen as enforcement Of a right to personal freedom is governed partly by the Constitution and partly by ordinarily statutes
Both fan within the purview of procedure
Article 21 of the Constitution guarantees though the guarantee is negatively framed that no person shall be deprived of his life or personal liberty except according to procedure established by law
If an enforcement of this negatively framed right is suspended a deprivation contrary lo the prescribed procedure is not legalised
The suspension of enforcement does not either authorise or direct any authority to violate the procedure
It has to be clearly understood that who is suspended is really the procedure for the enforcement of a right through Courts which could be said to flow from the infringment of a statutory procedure
If the enforcement of a right to be free resulting derivatively from both the Constitutional and statutory provisions based on an infraction of the procedure which is statutory in cases of preventive detention is suspended it seems to me to be impossible to lay down that it becomes enforceable when that part of the procedure which is mandatory is violated but remains unenforceable so long as the part of the procedure infringed is directory
Such a view would in any opinion introduced a distinction which is neither warranted by the language of Article 359 of the Constitution nor by that of the Presidential orders of 1975
If the claim to assert the right is one based on violation Of procedure the degree of violation may affect the question whether the right to be free is established at all but it should not logically speaking affect the result where the enforcement of the right even in a case in which it has become apparent is suspended
316 The question however which has been most vehemently argued is Does Article 21 exhaust every kind of protection given to rights to personal freedom  Another way in which this question was put is Article 21 of the Constitution the sole repository of the substantive as wen as procedural rights embraced by the expression personal liberty  one of the contentions before us was that Article 21 does not go beyond the procedural protection to persons who may be deprived of personal liberty
Mr Jethmalani learned Counsel appearing for one of the detenues contended that personal freedom was a by product of the removal of constraints or hindrances to the positive freedom of action of the individual
The contention seemed to be that procedure for depreciation of personal liberty being one of the ways of imposing positive constraints the removal of a negative procedural protection could not dispense with the necessity to establish a right of the detaining authority under some positive or statutory law to deprive a person detained of his liberty whether the authority concerned followed the right procedure or not in doing so
The argument is that proof of a just and reason able cause falling within the objects of the Act so as to create a liability to be detained must precede the adoption of any procedure to detail a person under the Act
A satisfaction that one of the grounds of detention prescribed by Section 3 of the Act is there was thus said to be a condition precedent to the exercise of jurisdiction to detain
This argument obviously proceeded on a restricted meaning given to the procedure established by law
It is very difficult to see why the satisfaction required by Section 3 of the Act is not really part of procedure established by law
There is however an even more formidable difficulty in the way of this argument
If as it is undeniable the procedure under Article 226 is the direct procedural protection which is suspended by the terms of the Presidential order read with Article 359 Article 226 win not be available to the detenue at an for the time being for showing absence of the required satisfaction as a condition precedent to a valid detention order under Section 3 of the Act
If the right to move any Court can be suspended Article 359 is very clear on the point there remains no right for the time being to an inquiry into conditions which may enable a party to secure release in assertion of rights guarantee either by Article 21 or by other articles whose enforcement is suspended
Indeed the clear object of such a suspension seems to me to be that Courts should not undertake inquiries into the violations of the alleged right
If the fundamental rights in Part III of the Constitution are not suspended as they obviously are not but only their enforcement can be and is suspended what is really affected is the power conferred on Courts by Articles 32 and 226 of the Constitution
The power of the Courts is the direct and effective protection of the rights sought to be secured indirectly by Article 21 and perhaps less indirectly by some other articles and laws
Indeed it is the basic protection because other protections operate through it and depend on it
If this is curtailed 317 temporarily the other affected protections become automatically inoperative or ineffective so far as Courts are concerned
It is no answer to say that the Constitutional power of High Courts cannot be affected by a Presidential order under Article 359 which is as much a part of the constitution as Article 226
Both articles were there from the commencement of the Constitution
I do not see how it can be reasonably urged that our Constitution makers did not visualise and intend that the Presidential order under Article 359 must for the duration of the Emergency necessarily limit the powers of High Courts under Article 226 albeit indirectly by suspending rights to enforcement of fundamental rights
It is also not possible for a detenue to fan back upon the last part of Article 226 of the Constitution which enables the use of powers given by this Article for any other purpose
Sq long as that purpose is enforcement of a right which is covered by Articles 14 or 19 or 21 or 22 either separately or conjointly as the enforcement of each of these is now suspended the inhibition win be there
Moreover we have no case before us in which a detenu asks for an order for any purpose other than the one which can only be served by tho issue of a writ of Habeas Corpus
Each detenu asks for that relief and for no other kind of writ or order
Therefore there is no need to consider any other purpose
It is true that some of the learned Counsel for the detenus have strongly relied upon any other purpose occurring at the end of Article 226 for enabling the High Court to undertake an investigation suo motu into the question whether the executive is performing its duties
Other Counsel have submitted that such an enquiry such motu can be undertaken by this Court or by a High Court in exercise of powers to issue writs of Habeas Corpus quite apart from the enforcement of the right of a detenu to any writ or order
As I have indicated earlier I am not prepared to answer purely hypothetical questions except within certain limits that is to say only so far as it is necessary for the purposes of illustrating my point of view
I do not think that the powers of Courts remain unaffected by the suspension of rights or locus standi of detenus
A Court cannot in exercise of any supposed inherent or implied or unspecified power purport to enforce or in substance enforce a right the enforcement of which is suspended
To permit such circumvention of the suspension is to authorise doing indirectly what law does not allow to be done directly
Assuming for purposes of argument that there is some unspecified residue of judicial  power in Courts of Record in this country without deciding what it could be as that question does not really arise in cases before us there must be undeniable facts and circumstances of some very grave extraordinary and exceptional character to justify the use of such powers if they exist at and either by this Court or by the High Courts
So long as the powers of Government are exercised by the chosen representatives of the people their exercise is presumed to be of the people and for the people
It has to be borne in mind that the validity of the declaration of Emergency under Article 352 has neither been nor can it be constitutionally challenged in view of Article 3525 318 of the Constitution
And the validity of Presidential orders of 1975 under Article 359 has not been questioned
So far I have only indicated the nature of the problems before us and my general approach to them
Before specifically answering questions stated at the outset I win deal as briefly as possible Under the following Six main heads with such of the very large number of points raised and authorities cited before us as appear to me to be really necessary for answering the questions caning for our decision A Rights conferred by Part III of our Constitution from the point of view of Personal Freedom
B Power to issue writs of Habeaus Corpus and other powers of High Courts under article 226 of the constitution
C The objects of the  the Act  and the amendments of it
D The purpose and meaning of Emergency provisions particularly Article 359 of our Constitution
E The effect of the Presidential orders particularly the order of 27th June 1975 on the rights of Detenus
F The Rule of Law as found in our Constitution and how it operates during the Emergency
A Rights conferred by Part In from the point of view of personal freedom
It is somewhat difficult to reconcile the language of a purported conferment of rights upon themselves by citizens of India with their political sovereignty
The language of the preamble to the Constitution recites that it is they who were establishing the legally Sovereign Democratic Republic with the objects given there
Of course some rights are conferred even on non citizens but that does not remove the semantic difficulty which gave rise to some argument before us
It seems to me that if as this Court has already explained earlier eg by me in Shrimati Indira Nehru Gandhi s case supra the Constitution given unto themselves by the people is legally supreme it win not be difficult to assign its proper meaning to the term conferred
I do not find the theory unacceptable that There was a notional surrender by the people of India of control over their several or individual rights to a sovereign Republic by means of a legally supreme Constitution to which we owe allegiance
It only means that we recognise that the Constitution is supreme and can confer rights and powers
We have to look to it alone and not outside it for finding out the manner in which and the limits subject to which individual citizens can exercise their separate freedoms
There has to be necessarily as a result of such a process of Constitution making a notional surrender of individual freedom so as to convert the possibility of licence to an which ends in the exploitation and oppression of the many weak by the few strong into the actuality of a freedom for an regulated by law or under the law applicable to an
This seems to 319 me to be a satisfactory explanation of the language of conferment used with reference to rights
Apart from the explanation given above of the language or conferment the meaning of placing some rights in Part III whatever be tile language in which this was done is surely to select certain rights as most essential for ensuring the fulness of lives of citizens
The whole object of guaranteed fundamental rights is to make those basic aspects of human freedom embodied in fundamental rights more secure than others not so selected
In thus recognising and declaring certain basic aspects of rights as fundamental by the Constitution of the country the purpose was to protect them against undue encroachments upon them by the legislative or executive and sometimes even judicial eg Article 20 organs of the State
The encroachments must remain within permissible limits and must take place only in prescribed modes
The intention could never be to preserve something concurrently in the field of Natural Law or Common Law
It was to exclude an other control or to make the Constitution the sole repository of ultimate control over those aspects of human freedom which were guaranteed there
I have already referred to Dicey s attempt to show that one of the meanings of the Rule of Law in England was that the law made by the ordinary Courts served purposes sought to be achieved in other countries by means of written Constitutions
This meant that one of the two systems governs the whole field of fundamental rights but not both This very idea is thus put by Keir  Lawson in Cases in Constitutional Law 5th Edn
p 11  The judges seem to have in their minds an ideal constitution comprising those fundamental rules of common law which seem essential to the liberties of the subject and the proper government of the country
These rules cannot be repealed but by direct and unequivocal enactment
In the absence of express words or necessary intendment statutes win be applied subject to them
They do not override the statute but are treated as it were as implied terms of the statute
Here may be found many of those fundamental rights of man which are directly and absolutely safeguarded in the American Constitution or the Declaration des droits de 1  homme
In the passage quoted above Rules of Natural Justice which are impliedly read into statutes from the nature of functions imposed upon statutory authorities or bodies are placed on the same footing as fundamental rights of men which are directly and absolutely safeguarded by written Constitutions
There is however a distinction between these two types of basic rights
The implied rules of natural justice do not as has been repeatedly pointed out by us over ride the express terms of a statute
They are only implied because the functions which the statute imposes are presumed to be meant to the exercised in accordance with these rules
Hence they are treated as though they were parts of enacted law
This Court has repeatedly 320 applied this principle see eg State of Orissa vs Dr Miss Binapani Dei  Ors1 The principles of natural justice which are so implied must always hang if one may so put it on pegs of statutory provisions or necessarily follows from them
They can also be said sometimes to be implied as necessary parts of the protection of equality and equal protection of laws conferred by Article 14 of the Constitution where one of the pillars of Dicey s principles of the Rule of Law is found em bodied
Sometimes they may be implied and read into legislation dealing with rights protected by Article 19 of the Constitution
They could at times be so implied because restrictions on rights conferred by Article 19 of the Constitution have to be reasonable
Statutory provisions creating certain types of functions may become unreason able and therefore void unless rules of natural justice were impliedly annexed to them
And the wen known method of construction is ut res magis valeat guam pereat to prefer the construction which upholds rather than the one which invalidates
Thus rules of natural justice even when they are read into statutory provisions have no independent existence
They are annexed to statutory duties or fundamental rights so long as they are not expressly excluded
Their express exclusion by statute may when the enforcement of fundamental rights
It is not suspended affect the validity of a statute
But that is so because of the requirements of Articles 14 and 19 of the Constitution and not because they are outside the Constitution altogether
It is also very difficult for me to understand what is meant by such Common Law rights as could co exist and compete with constitutional provisions or take their place when the constitutional provisions become unenforceable or temporarily inoperative
The whole concept of such alleged Common Law is based on an utter misconception of what Common Law means
The origin of Common Law in England is to be found in the work done by the King s Judges who through their judicial pronouncements gave to the people of that country a law common to the whole country in the place of the peculiar or conflicting local customs
Let me quote here from a recent book by Prof George W Keeton on English Law The Judicial Contribution at p 68 69 about what Judges appointed by Henry the II of Anjou did It is in his reign that something recognisable as a Common Law begins to emerge
It is an amalgam of Anglo Saxon and Danish customs and Norman laws governing military tenures both of which are about to be transformed by several mighty agencies the ever expanding body of original writs of which Glanville wrote the assizes which Henry introduced and finally by the activities of his judges whether 3 at Westminster or on Circuit
It is significant that although for some centuries to come English law was to remain remarkably rich in local customs we no longer hear after t Henry s reign of the laws of Mercia Wessex and Northumbria but of a Common Law of England that is to say 11967 2 section C R 625
321 the law of the king s courts about which treatises of the calibre of Bracton and Fleta would be written almost exactly a century later and as the concluding words of Pollock and Maitland s great work remind us they and their judicial colleagues were building not for England alone but for king less common wealths on the other shore of the Atlantic ocean and now one can perhaps add for many other commonwealths too
This we owe ultimately not to a Norman Conqueror nor even to a distinguished line of Saxon kings but to a bow legged and unprepossessing prince of Anjou of restless energy and great constancy of purpose who built perhaps a good deal better than even he knew
Such were the origins of the Common Law in England
It is true that Common Law did try to dig its tentacles into Constitutional Law as well
Chief Justice Coke not only denied to King James the 1st the power to administer justice directly and personally but he went so far as to claim for the King s Courts the power to proclaim an Act of Parliament invalid in Dr Bonham s case if it sought to violate a principle of natural law
Such claims however were soon abandoned by Common Law Courts
It is interesting to recall that after his dismissal by King James the 1st in 1616 Sir Edward Coke entered politics and became a Member of the House of Commons in Liskeard
He led a group which resisted Royal claims
He was the principal advocate of the Petition of Rights which Parliament compelled a reluctant King of England to accept in 1628
Courts of justice unable to withstand Royal onslaughts on their authority joined hands with Parliament and laid down some of the rules which according to Dicey gave the Rule of Law to England
Thus the judge made fundamental rights which Parliament would not disturb out of innate respect for them existed legally speaking because Parliament representing the people wanted them
They could not compete with or obstruct the legal authority of Parliament
Coke s doctrine however found expression in a constitution which enabled judges to test the validity of even legislation P  with reference to fundamental rights
This is also one of the primary functions of Chapter III of our own Constitution
Another function of provisions of this chapter is to test the validity of the State s executive action
So far as Article 21 of the Constitution is concerned it is abundantly clear that it protects the lives and liberties of citizens primarily from legally unwarranted executive action
It secures rights to procedure established by law 
If that procedure is to be established by statute law as it is meant to be this particular protection could not on the face of it be intended to operate as a restriction upon legislative power to lay down procedure although other articles affecting legislation on personal freedom might
Article 21 was only meant on the face of it to keep the exercise of executive powers in ordering deprevations of life or liberty within the bounds of power prescribed by procedure established by legislation
23 833 Sup C I76 322 The meaning of the expression procedure established by law came in for discussion at considerable length by this Court in A K Gopalan s case supra
The majority of the learned James clearly held there that it furnishes the guarantee of Lex which is equated with statute law only and not of Jus or a judicial concept of what procedural law ought really to be
The whole idea is using this expression taken deliberately from the Japanese Constitution of the advice amongst others of Mr Justice Felix Frankfurter of the American Supreme Court was to exclude judicial interference with executive action in dealing with lives and liberties of citizens and others living in our country on any ground other than that it is contrary to procedure actually prescribed by law which according to the majority view in Gopalan s case meant only statute law
The majority view was based on the reason amongst others that according to well established canons of statutory construction the express terms of Lex assuming of course that The Lex is otherwise valid prescribing procedure will exclude Jus or judicial notions or due process or what the procedure ought to be
Appeals to concepts of Jus or a just procedure were made in Gopalan s case supra as implied by Article 21 in an attempted application of Jus for testing the validity of statutory provisions
Although no such question of validity of the procedure established by the Act in ordering actual deprivations of personal liberty has arisen before us yet the argument before us is that we should allow use of notions of Jus and the doctrine of ultra vires by the various High Courts in judging the correctness of applications of the established procedure by executive authorities to each case at a time when the Presidential order of 27th June 1975 precludes the use of Article 21 by Courts for enforcing a right to personal liberty
Therefore the question which arises here is whether Jus held by this Court
in Gopalan s case to have been deliberately excluded from the purview of procedure established by law can be introduced by Courts through a back door as though it was an independent right guaranteed by Chapter III or by any other Part of the Constitution
I am quite unable to accede to the suggestion that this could be done
We have been referred to the following passage in R C Cooper v Union of India1 to substantiate the submission that the decision of this Court in Gopalan s case supra on the question mentioned above no longer holds the field We have found it necessary to examine the rationale of the two lines of authority and determine whether there is anything the Constitution which justifies this apparently inconsistent development of the law
In our judgment the assumption in AK Gopalan s case that certain articles in the Constitution exclusively deal with specific matters and in determining where there is infringement of the individual s guaranteed rights the object and the form of the State action alone need be considered and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be accepted as correct
We hold that the 1   578 323 validity of law  which authorises deprivation of property and a law  which authorises compulsory acquisition of property for a public purpose must be adjudged by the application of the same tests
A citizen may claim in an appropriate case that the law authorising compulsory acquisition of property imposes fetters upon his right to hold property which are not reasonable restrictions in the interests of the general public
It seems to me that Gopalan s case supra was merely cited in Cooper s case supra for illustrating a line of reasoning which was held to be incorrect in determining the validity of law for the acquisition of property solely with reference to the provisions of Article 31
The question under consideration in that case was whether Articles 191f and 312 are mutually exclusive
Even if on the strength of what was held in Cooper s case supra we hold that the effects of deprivation upon rights outside Article 21 have also to be considered in deciding upon the validity of Lex and that the line of reasoning in Gopalan s case supra that the validity of a law relating to preventive detention must be judged solely with reference to the provisions of Article 21 of the Constitution is incorrect in view of the opinion of the majority of learned Judges of this Court hl Cooper s case supra it seem to me that this is hardly relevant in considering whether any claims based on natural law or common law can be enforced
There is no challenge before us based on Article 19 to any provision of the Act
Moreover now that the enforcement of Article 19 is also suspended the question whether a law dealing with preventive detention may directly or indirectly infringe other rights contained in Article 19 of the Constitution is not relevant at all here for this additional reason
Mr Shanti Bhushan appearing for some of the detenu seems to have seriously understood the meaning of the majority as well as minority views of Judges of this Court in His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala1 when he submitted that as the majority view there was not that natural rights do not exist these rights could be enforced in place of the suspended guaranteed fundamental rights
One learned Judge after another in that case emphatically rejected the submission that any theory of natural rights could impliedly limit powers of Constitutional amendment contained in Article 368 of the Constitution
Tn doing so none or us held that any natural rights could impliedly become legally enforceable rights
G Dwivedi J in Kesavananda Bharti s case supra said about what could be characterised as a far more unruly horse than public policy at p 918 Natural law has been a sort of religion with many political and constitutional thinkers
But it has never believed in a single Godhead
It has a perpetually growing pantheon
Look at the pantheon and you will observe there State 1  918 324 of Nature  Nature of Man  Reason  Cod  Equality  Liberty  Property  Laissez Faire  Sovereignty  Democracy  Civilised Decency  Fundamental Conceptions of Justice  and even War 
The religion of Natural Law has its illustrious Priestly Heads such as Chrysippus Cicero Seneca St Thomas Acquinas Grotius Hobbes Locke Paine Hamilton Jefferson and Trietschke
The pantheon is not a heaven of peace
Its gods are locked in constant internecine c nflict
Natural Law has been a highly subjective and fighting faith
Its bewildering variety of mutually warring gods has provoked Kelson to remark outstanding representatives of the natural law doctrine have proclaimed in the name of Justice or Natural Law principles which not only contradict one another but are in direct opposition to many positive legal orders
There is no positive law that is not in conflict with one or the other of these principles and it is not possible to ascertain which of them has a better claim to be recognised than any other
All these principles represent the highly subjective value judgments of their various authors about what they consider to be just or natural
 If the concepts of natural law are too conflicting to make them a secure foundation for any alleged right sought to be derived from it until it is accepted and recognised by a positive laws notions of what Common Law is and what it means if anything in this country are not less hazy and unsettled
Mr Setalvad in his Harnlyn Memorial Lectures on Common Law in India treated the whole body of general or common statute law and Constitutional Law of this country as though they represented a codification of the Common Law of England
If this view is correct Common Law could not be found outside the written constitution and statute law although English Common Law could perhaps be used to explain and interpret our statutory provisions where it was possible to do so due to some uncertainty
Sometimes Judges have spoken of the principles of Justice equity and good conscience See Satish Chandra Chakramurthi vs Ram Dayal De1 Waghela Raj Sanji vs Sheik Mashuddirl  ors
2 Baboo So Thakur Dhodi vs Mst
Subanshi Wo Mangal8 as sources of Common Law in this country
One with some knowledge of development of law in England will distinguish the two broad streams of law there one supposed to be derived from the customs of the people but actually based on judicial concepts of what custom is or should properly be and another flowing from the Court of the Chancellor the Keeper of the King s Conscience who used to be approached 1 I L R  407 410
2 14 Indian Appeals p 89  96
3 A I R 325 when plain demands of justice failed to be met or caught in the meshes of Common Law or were actually defeated by some statute law which was being misused
The two streams one of Common Law and an other of Equity were mixed or fused by statute as a result of the Judicature Acts in England at the end of the last century in the sense that they became parts of one body of law administered by the same Courts although they are still classified separately due to their separate origins
In Stroud s Judicial Dictionary we find See Vol
I 4th Edn
p 517 The common law of England is that body of law which has been judicially evolved from the general custom of the realm
Here all that I wish to indicate is that neither rights supposed to be recognised by some natural law nor those assumed to exist in some part of Common Law could serve as substitutes for those conferred by Part III of the Constitution
They could not be on any principle of law or justice or reason virtually added to part III as complete replacements for rights whose enforcement is suspended and then be enforced through constitutionally provided machinery as the unseen appendages of the Constitution or as a separate group of rights outside the Constitution meant for the Emergency which suspends but does not resuscitate in a new form certain rights
A submission of Dr Ghatate appearing for Mr Advani was that we should keep in mind the Universal Declaration of Human Rights in interpreting the Constitution
He relied on Article Sl of the Constitution the relevance of which for the cases before us is not at all evident to me
He also relied on the principle recognised by British Courts that International Law is part of the law of the land
Similarly it was urged it is part of our law too by reason of Article 372 of the Constitution
He seemed to imply that we should read the universal declaration of human rights into our Constitution as India was one of the signatories to it
These submissions appear to me to amount to nothing more than appeals to weave certain ethical rules and principles into the fabric of our Constitution which is the paramount law of this country and provides the final test of validity and enforceability of rules and rights through Courts
To advance such arguments is to forget that our Constitution itself embodies those rules and rights
It also governs the conditions of their operation and suspension
Nothing which conflicts with the provisions of the Constitution could be enforced here under any disguise
Emergency provisions in our Constitution are after all a recognition and extension of the individual s natural law right of self defence which has its expression in positive laws to the State the legal organisation through which society or the people in its collective aspect functions for the protection of the common interests of all Such provisions or their equivalents exist in the Constitutions of even the most advanced democratic countries of the world
No lawyer can seriously question the correctness in Public International Law of the proposi 326 tion that the operation and effects of such provisions are matter which are entirely the domestic concern of legally sovereign Slates and ca brook no outside interference
Subba Rao CJ speaking for five learned Judges of this Court in 1
C Gorakhnath  ors
vs State of Punjab  Anr1 said at p 789  Now what are the fundamental rights  They are em bodied in Part III of the Constitution and they may be classified thus 1 right to equality ii right to freedom iii right against exploitation iv right to freedom of religion v cultural and educational rights vi right to property and vii right to constitutional remedies
They are the rights of the people preserved by our Constitution
Fundamental rights  are the modern name for what have been traditionally known as natural rights
As one author puts they are moral rights which every human being everywhere at all times ought to have simply because of the fact that in contradistinction with other beings he is rational and moral
They are the primordial rights necessary for the development of human personality
They are the rights which enable a man to chalk out his own life in the manner he likes best
our Constitution in addition to the well known fundamental rights also included the rights of the minorities untouchables and other backward communities in such rights
I do not know of any statement by this Court of the relation between natural rights and fundamental constitutional rights which conflicts with what is stated above
Hidayatullah J in Golaknath s case supra observed at p 877  What I have said does not mean that Fundamental Rights are not subject to change or modification
In the most inalienable of such rights a distinction must be made between possession of a right and its exercise
The first is fixed and the latter controlled by justice and necessity
Take for example article 21 No person shall be deprived of his life or personal liberty except according to procedure established by law 
of all the rights the right to one s life is the most valuable
This article of the Constitution therefore makes the right fundamental
But the inalienable right is curtailed by a murderer s conduct as viewed under laws
he deprivation when it takes place is not of the right which was immutable but of the continued exercise of the right
The contents of Article 21 were considered at some length and given a wide connotation by this Court ill Gopalan s case supra
Patanjali Sastri J held at pages 195 196 1   789
327 It was further submitted that article 19 declared the substantive rights of personal liberty while article 21 provided the procedural safeguard against their deprivation
This view of the correlation between the two articles has found favour with some of the Judges in the High Courts which have occasion to consider the constitutional validity of the impugned Act
It is however to be observed that article 19 confers the rights therein specified only on the citizens of India While article 21 extends the protection of life and 
personal liberty to all persons citizens and non citizens alike
Thus the two articles do not operate in a conterminous field and this is one reason for rejecting the correlation suggested
Again if article 21 is to be understood as providing only procedural safeguards where is the substantive right to personnel liberty of non citizens to be found in the Constitution  Are they denied such right altogether  If they are to have no right of personal liberty why is the procedural safeguard in article 21 extended to them  And where is that most fundamental right of all the right to life provided for in the Constitution The truth is that article 21 like its American prototype in the Fifth and Fourteenth Amendments of the Constitution of the United States presents an example of The fusion of procedural and substantive rights in the same provision
The right to live though the most fundamental of all is also one of the most difficult to define and its protection generally takes the form of a declaration that no person shall be deprived of it save by due process of law or by authority of law Process  or procedure  in this context connotes both the act and the manner of proceeding to take away a man s life or personal liberty
And the first and essential step in a procedure established by law for such deprivation must be a law made by a competent legislature authorising such deprivation
Mahajan J also observed at pages 229 230 Article 21 in my opinion lays down substantive law as giving protection to life and liberty inasmuch as it says that they cannot be deprived except according to the procedure established by law in other words it means that before a person can be deprived of his life or liberty as a condition precedent there should exist some substantive law conferring authority for doing so and the law should further provide for a mode of procedure for such deprivation
This article gives complete immunity against the exercise of despotic power by the executive
It further gives immunity against invalid laws which contravene the Constitution
It gives also further guarantee that in its true concept there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty
It negatives the idea of fantastic arbitrary and oppressive forms of proceedings
The principles therefore underlying article 21 have been kept in view in drafting article 22
328 Das J said at page 295 If personal liberty as such is guaranteed by any of the sub clauses of article 191 then why has it also been protected by article 21  The answer suggested by learned counsel for the petitioner is that personal liberty as a substantive right is protected by article 191 and article 21 gives only an additional protection by prescribing the procedure 
according to which that right may be taken away
I am unable to accept this contention
If this argument were correct then it would follow that our Constitution does not guarantee to any person citizen or non citizen the freedom of his life as a substantive right at all for the substantive right to life does not fall within any of the sub clauses of clause 1 of article 19
He also said at p 306 307 Article 21 as the marginal note states guarantees to every person protection of life and personal liberty 
As I read it it defines the substantive fundamental right to which protection is given and does not purport to prescribe any particular procedure at all
That a person shall not be deprived of his life or personal liberty except according to procedure established by law is the substantive fundamental right to which protection is given by the Constitution
The avowed object of the article as I apprehend it is to define the ambit of the right to life and personal liberty which is to be protected as a fundamental right
The right to life and personal Liberty protected by article 21 is not an absolute right but is a qualified right a right circumscribed by the possibility or risk of being lost according to procedure established by It will thus be seen that not only all steps leading up to the deprivation of personal liberty but also the substantive right to personal Freedom has been held by implication to be covered by Article 21 of the Constitution
In Kharak Singh vs the State of UP  Ors1 he wide import of personal liberty guaranteed by Article 21 was considered
By a majority of 4 against 2 learned Judges of this Court it was held that the term personal liberty as used in Article 21 is a compendious one and includes all varieties of rights to exercise of personal freedom other than those dealt with separately by Article 19 which could fall under a broad concept of freedom of person
It was held to include freedom from surveillance from physical torture and from all kinds of harassment of the person which may interfere with his liberty
Thus even if Article 21 is not the sole repository of all personal freedom it will be clear from a reading of Gopalan s case supra and 1 1964 1 section C R 332
329 Kharak Singh s case Supra that all aspects of freedom of person are meant to be covered by Articles 19 and 21 and 22 of the Constitution
If the enforcement of these rights by Courts is suspended during the Emergency an inquiry by a Court into the question whether any of them is violated by an illegal deprivation of it by executive authorities of the State seems futile
For the reasons indicated above I hold as follows Firstly fundamental rights are basic aspects of rights selected from what may previously have been natural or common law rights
These basic aspects of rights are elevated to a new level of importance by the Constitution
Any other co extensive rights outside the Constitution are necessarily excluded by their recognition as or merger with fundamental rights
Secondly the object of making certain general aspects of rights fundamental is to guarantee them against illegal invasions of these rights by executive legislative or judicial organs of the State
This necessarily means that these safeguards can also be legally removed under appropriate constitutional or statutory provisions
although their Suspension does not or itself take away the illegalities or their legal consequences
Thirdly Article 21 of the Constitution has to be interpreted comprehensively enough to include together with Article 19 practically all aspects of personal freedom
It embraces both procedural and substantive rights
Article 22 merely makes it clear that deprivations of liberty by means of laws regulating preventive detention would be included in procedure established by law and indicates what that procedure should be
In that sense it could be viewed as substantially an elaboration of what is found in Article 21 although it also goes beyond it inasmuch as it imposes limits on ordinary legislative power
Fourthly taken by itself Article 21 of the Constitution is primarily a protection against illegal deprivations by the executive action of the State s agents or officials although read with other Articles it could operate also as a protection against unjustifiable legislative action purporting to authorise deprivations of personal freedom
Fifthlty the most important object or making certain basic rights fundamental by the Constitution is to make them enforceable against the State and its agencies through the Courts
Sixthly if the protection of enforceability is validly suspended for the duration of an Emergency declared under constitutional provisions the Courts will have nothing before them to enforce so as to be able to afford any relief to a person who comes with a grievance before them
B Power to issue writs of Habeas Corpus and other powers of High Courts under Article 226 of the Constitution Reliance has been placed on behalf of the detenus on the following statement of the law found in Halsbury s Laws of England Vol 11 p 27 paragraph 15 where dealing with the jurisdiction to issue such writs in England it is said 330 The right to the writ is a right which exists at common law independently of any statute though the right has been confirmed and regulated by statute
At common law the jurisdiction to award the writ was exercised by the Court of Queen s Bench chancery and Common Pleas and in a case of privilege by the Court of Exchequer
It is therefore submitted that the High Courts as well as this Court which have the same jurisdiction to issue writs of Habeas Corpus as English Courts have to issue such writs at common law The argument seems to me to be based on several misconceptions Firstly there are no Courts of the King or Queen here to issue writs of Habeas Corpus by reason of any prerogative of the British Monarch
The nature of the writ of Habeas Corpus is given in the same volume of Halsbury s Laws of England dealing with Crown proceedings at page 24 as follows 40
The prerogative writ of habeas corpus
The writ of habeas corpus and subjiciendum which is commonly known as the writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention whether in prison or in private custody
It is a prerogative writ by which the Queen has a right to inquire into the causes for which any of her subjects are deprived of their liberty
By it the High Court and the judges of that Court at the in stance of a subject aggrieved command the production of that subject and inquire into the cause of his imprisonment
If there is no legal justification for the detention the party is ordered to be released
Release on habeas corpus is not however an acquittal nor may the writ be used as a means of appeal
It will be seen that the Common Law power of issuing the writ of Habeas Corpus is possessed by only certain courts which could issue prerogative writs
It is only to indicate the origin and nature of the writ that the writ of habeas corpus is known here as a prerogative writ
The power to issue it is of the same nature as a prerogative power inasmuch as the power so long as it is not suspended may carry with it an undefined residue of discretionary power
Strictly speaking
it is a constitutional writ
The power to issue it is conferred upon Courts in this country exclusively by our Constitution
All the powers of our Courts flow from the Constitution which is the source of their jurisdiction
If any provision of the Constitution authorises the suspension of the right to obtain relief in any type of cases the power of Courts is thereby curtailed even though a general jurisdiction to afford the relief in other cases may be there
If they cannot issue writs of Habeas Cor pus to enforce a light to personal freedom against executive authorities during the Emergency the original nature of this writ issuing power comparable to a prerogative power cannot help the detenu
331 Secondly as I have already indicated whatever could be formerly even said to be governed by a Common Law prerogative power becomes merged in the Constitution as soon as the Constitution makes it over and regulates that subject
This is a well recognised principle or law
I will only cite Attorney General vs De Keyser s Royal Hotel Limited1
Where Lord Dunedin in answer to a claim of the Crown based on prerogative said at p 526 None the less it is equally certain that if the whole ground of something which could be done by the prerogative is covered by the statute it is the statute that rules
On this point I think the observation of the learned Master of the Rolls unanswerable
He says What use could there be in imposing limitations if the Crown could at its pleasure disregard them and fall back on prerogative  
Thirdly if there is no enforceable right either arising under the Constitution or otherwise it is useless to appeal to any general power of the Court to issue a writ of Habeas Corpus
The jurisdiction to issue an order of release on a Habeas Corpus petition is only exercisable after due enquiry into the cause of detention
If the effect of the suspension of the right to move the Court for a writ of Habeas Corpus is that no enquiry can take place beyond finding out that the cause is one covered by the prohibition mere possession of some general power will not assist the detenu
If the right to enforce personal freedom through a writ of habeas corps suspended it cannot be said that the enforcement can be restored by resorting to any other purpose
That other purpose could not embrace defeating the effect of suspension of the enforcement of a Constitutional guarantee
To hold that would be to make a mockery of the Constitution
Therefore I am unable to hold that anything of the natural of a writ of habeas corpus or any power of a High Court under Article 226 could come to the aid of a detenu when the right to enforce a claim to personal freedom sought to be protected by the Constitution is suspended
CThe objects of the the Act and the amendments of it
As this Court has recently held in Haradhan Saha  Anr vs The State of West Bengal  ors2 preventive detention is to be differentiated from punitive detention
Nevertheless it is evident whether detention is preventive or punitive it necessarily results in the imposition of constraints
which from the point of view justice to the detenu should not be inflicted or continue without fair and adequate and careful scrutiny into its necessity
This Court pointed out that Article 22 of the Constitution was designed to guarantee these requirements of fairness and justice which are satisfied by the provisions of the Act
It said in said Haradhan Saha  Anr
supra at p 784
1   526
2  332 Constitution has conferred rights under Article 19 and also adopted preventive detention to prevent the greater evil of elements imperilling the security the safety of a State and the welfare of the Nation
It is not possible to think that a person who is detained will yet be free to move or assemble or form association or union or have the right to reside in any part of India or have the freedom of speech or expression Provision for preventive detention in itself is a departure from ordinary norms
It is generally resorted to either in times of war or of apprehended internal disorders and disturbances of a serious nature
Its object is to prevent a greater danger to national security and integrity than any claim which could be based upon a right moral or legal to individual liberty
It has been aptly described as a jurisdiction of suspicion
 See Khudiram Das vs State of West Bengal 1 State of Madras vs V G Row 2 R vs Halliday 3
It enables executive authorities to proceed on bare suspicion which has to give rise to a satisfaction as the condition precedent to passing a valid detention order laid down as follows in Section 3 of the Act 3 1 a if satisfied with respect to any person including a foreigner that with a view to preventing him from acting in any manner prejudicial to 1 the defence of India the relations of India with foreign powers or the security of India or ii the security of the State or the maintenance of public order or iii the maintenance of supplies and services essential to the community or b if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or With a view to making arrangements for his expulsion from India It is necessary so to do make an order directing that such person is detained The satisfactions as held consistently by a whole line of authorities of this Court is a subjective one
In other words it is not possible to prescribe objective standards for reaching that satisfaction
Although the position in law as declared repeatedly by this Court has been very clear and categorical that the satisfaction has to be the subjective satisfaction of the detaining authorities yet the requirements for sup ply of grounds to the detenus as provided in Section 8 of the Act in actual practice opened up a means of applying a kind of objective test by Courts upon close scrutiny of these grounds
The result has been according to the Attorney General that the subjective satisfaction of the detaining authorities has tended to be substituted by the 1 1975 2 section C R p 832  p 842
2 A I R  200
3   275
333 subjective satisfaction of Court on the objective data provided by the grounds as to the need to detain for purposes of the Act
Thequestion thus arose Did this practice not frustrate the purposes of the Act  The position of the detenu has generally evoked the sympathy of lawyers and law Courts
They cherish a tradition as zealous protectors of personal liberty
They are engaged in pointing out day in and day out the essentials of fair trial
They are used to acting strictly on the rules of evidence contained in the Indian Evidence Act
The possibility of indefinite incarceration without anything like a trial not unnaturally seems abhorrent to those with such traditions and habits of thought and action
There is an aspect which perhaps tends to be overlooked in considering matters which are generally placed for weighment on the golden scales of the sensitive judicial balance
It is that we are living in a world of such strain and stress satirised in a recent fictional depiction of the coming future if not of a present already enveloping us
in Mr Alva Toffler s Future Shock with such fast changing conditions of life dominated by technological revolutions as well as recurring economic social and political crises with resulting obliterations of traditional values that masses of people suffer from psychological disturbances due to inability to adjust themselves to these changes and crises
An example of such maladjustment is provided by what happened to a very great and gifted nation within having memory
The great destruction the inhuman butchery and the acute suffering and misery which many very civilised parts of the world had to pass through because some psychologically disturbed people led by Adolf Hitler were not prevented in time from misleading and misguiding the German nation is still fresh in our minds
Indeed the whole world suffered and felt the effects of the unchecked aberrant Nazi movement in Germany and the havoc it unleashed when it acquired a hold over the minds and feelings of the German people with all the vast powers of modern science at their disposal
With such recent examples before them it was not surprising that our constitution makers quite far sightedly provided not only for preventive detention in our Constitution but also introduced Emergency provisions of a drastic nature in it
These seem to be inescapable concomitants of conditions necessary to ensure for the mass of the people of a backward country a life of that decipline without which the country s security integrity independence and pace of progress towards the objectives set before us by the Constitution will not be safe
I do not know whether it was a too liberal application of the principle that courts must lean in favour of the liberty of the citizen which is strictly speaking only a principle of interpretation for cases of doubt or difficulty or the carelessness with which detentions were ordered by Subordinate officers in the Districts or the inefficiency in drafting of the grounds of detention which were not infrequently found to be vague and defective the result of the practice developed by Courts was that detenus did in quite a number of cases obtain 334 from High Courts and perhaps even from this Court orders of release on Habeas Corpus petitions on grounds on which validity of criminal trials would certainly not be affected
In Prabhu Dayal Deorah etc etc
vs District Magistrate Kamrup  Ors
I ventured with great respect in my miniority opinion to suggest that the objects of the Act may be frustrated if Courts interfere even before the machinery of redress under the Act through Advisory Boards where questions relating to vagueness or irrelevance or even sufficiency of grounds could be more effectively thrashed out than in Courts in proceedings under Article 32 or 226 of the Constitution had been allowed to complete its full course of operation
In some cases facts were investigated on exchange of affidavits only so as to arrive at a conclusion that some of facts upon which detention orders were passed did not exist at all
In other cases it was held that even if a single non existent or vague ground crept into The grounds for detention the detention order itself was vitiated as it indicated either the effects of extraneous matter or carelessness or non application of mind in making the order
Courts could not separate what has been improperly considered from what was properly taken into account
Hence detentions were held to be vitiated by such detects
In some cases the fact that some matter ton remote in time from the detention order was taken into consideration in ordering the detention was held to be enough to invalidate the detention
Thus grounds supplied always operated as an objective test for determining the question whether a nexus could reasonably exist between the grounds given and the detention order or whether some infirmities had crept in
The reasonableness of the detention became the justiciable issue really decided
With great respect I doubt whether this could be said to be the object of preventive detention provisions authorised by the Constitution and embodied in the Act
In any case it was the satisfaction of the Court by an application of a kind of objective test more stringently than the principle of criminal procedure that a defective charge could be amended and would not vitiate a trial without proof of incurable prejudice to the accused which became for all practical purposes the test of the correctness of detention orders
I have ventured to indicate the background which seems to me to have probably necessitated certain amendments in the Act in addition to the reasons which led to the proclamation of Emergency the effects of which are considered a little later below
We are not concerned here with the wisdom of the policy underlying the amendments
It is however
necessary to understand the mischief aimed at so as to be able to correctly determine the meaning of the changes made The Central Act 39 of 1975 which actually came into effect after Emergency added Section 16A to the Act to sub sections of 1 A 1
R 335 which have been the subject matter of arguments before us
They read as follows 2 The case of every person including a foreigner against whom an order of detention was made under this Act on or after the 25th day of June 1975
but before the commencement of this section shall unless such person is sooner released from detention be viewed within fifteen days from such commencement by the appropriate Government for the purpose of determining whether the detention of such person under this Act is necessary for dealing effectively with the emergency in respect of which the Proclamations referred to in sub section 1 have been issued here after in this section referred to as the emergency and if on such review the appropriate Government is satisfied that it is necessary to detain such person for effectively dealing with the emergency that Government may make a declaration to that effect and communicate a copy of the declaration to the person concerned
3 When making an order of detention under this Act against any person including a foreigner after the commencement of this section the Central Government or the State Government or as the case may be the officer making the order of detention shall consider whether the detention of such person under this Act is necessary for dealing effective by with the emergency and if on such consideration the Central Government or the State Government or as the case may be the officer is satisfied that it is necessary to detain such person for effectively dealing with the emergency that Government or officer May make a declaration to that effect and communicate a copy of the declaration to the person concerned Provided that where such declaration is made by an officer it shall be reviewed by the State Government to which such officer is subordinate within fifteen days from the date of making of the declaration and such declaration shall cease to have effect unless it is confirmed by the State Government after such review within the said period of fifteen days
Act No 14 of 1976 which received the Presidential assent on 25th January 1976 added Section 16A9 which runs as follows 16A9 Notwithstanding anything contained in any other law or any rule having the force of law a the Grounds on which an order of detention is made or purported to be made under section 3 against any person in respect of whom a declaration is made under sub section 2 or sub section 3 and any information or materials on which such grounds or a declaration under sub section 2 or declaration or confirmation under sub section 3 or the non 336 revocation under sub section 4 of a declaration are based shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose and save as otherwise provided in this Act on one shall communicate or disclose any such ground information or material or any document containing such ground information or material b No person against whom an order of detention is made or purported to be made under section 3 shall be entitled to the communication or disclosure of any such ground information or material as is referred to in clause a or the production to him of any document containing such ground information or material
This Section and Section 18 of the Act are the only provisions whose validity is challenged before us
It appears to me that the object of the above mentioned amendments was to affect the manner in which jurisdiction of Courts in considering claims for reliefs by detenus on petitions for writs of Habeas Corpus was being exercised so that the only available means that had been developed for such cases by the Courts that is to say the scrutiny of grounds supplied under section 8 of the Act may be re moved from the judicial armoury for the duration of the Emergency
It may be mentioned here that article 225 and 226 of the Constitution provided as follows 225 When any person is detained in pursuance of the order made under any law providing for preventive detention the authority making the order shall as soon as may he communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order
226 Nothing in clause 5 shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose
The first contention that Section 16A9 affects the jurisdiction of High Courts under Article 226 which an order under Article 3591 could not do appears to me to be untenable
I am unable to see how a Presidential order which prevents a claim for the enforcement of a fundamental right from being advanced in a Court during the existence of an Emergency could possibly be said not to be intended to affect the exercise of jurisdiction of Courts at all
The second argument that Section 16A9 amounts to a general legislative declaration in place of judicial decisions which Courts had themselves to give after considering on the facts of each case whether Article 226 could be applied also does not seem to me to be
acceptable
The result of Section 16A9 if valid would be to leave the presumption of correctness of an order under Section 3 of the Act good on the face of it untouched by any investigation relating 337 to its correctness
Now if this be the object and effect of the amendment it could not be said to go beyond making it impossible for detenus to rebut a presumptions of legality and validity which an order under Section 3 of the Act if prima facie good would raise in any event
The same result could have been achieved by enacting that a detention order under section 3 prima facie good will operate as conclusive proof that the requirements of Section 3 have been fulfilled
But as the giving of grounds is not entirely dispensed with under the Act even as it now exists this may have left the question in doubt whether Courts could call upon the detaining authorities to produce the grounds
Enactment of a rule of conclusive proof is a well established form of enactments determining substantive rights in the form of procedural provisions
In any case so far as the rights of a detenu to obtain relief are hampered the question raised touches the enforcement of the fundamental right to personal freedom
Its effect upon the powers of the Court under Article 226 is as I have already indicated covered by the language of Article 3591 of the Constitution
It is not necessary for me to consider the validity of such a provision if it was to be applied at a time not covered by the Emergency or whether it should be read down for the purposes of a suit for damages where the issue is whether the detention was ordered by a particular officer out of malice in fact and for reasons completely outside the purview of the Act itself
That sort of inquiry is not open during the Emergency in proceedings under Article 226
On the view I take for reasons which will be still clearer after a consideration of the remaining questions discussed below
 I think that even the issue that the detention order is vitiated by malice in fact will not be justiciable in Habeas Corpus proceedings during the Emergency although it may be in an ordinary suit which is not filed for enforcing a fundamental right but for other reliefs
The question of bona fides seems to be left open for decision by such suits on the language of Section 16 of the Act itself which says 16
No suit or other legal proceedings shall lie against the Central Government or a State Government and no suit prosecution or other legal proceedings shall lie against any person for anything in good faith done or intended to be done in pursuance of this Act
Section 16 of the Act seems to leave open a remedy by way of suit for damages for wrongful imprisonment in a possible case of what may be called malice in fact
In the cases before us we are only concerned with Habeas Corpus proceedings under Article 226 of the Constitution where in my opinion malice in fact could not be investigated as it is bound to be an allegation subsidiary to a claim for the enforcement of a right to personal liberty a fundamental right which cannot be enforced during the Emergency
In Sree Mohan Chowdhury vs The Chief Commissioner Union Territory of Tripura1 a Constitution Bench of this Court after pointing out that Article 324 contemplated a suspension of the guaranteed right only as provided by the Constitution said at p 450 451   1  at 450
24 833 Sup CI76 338 The order of the President dated November 3 1962 already set out in terms suspends the right of any person to move any Court for the enforcement of the rights conferred by articles 21 and 22 of the Constitution during the period of Emergency Prima facie therefore the petitioner s right to move this Court for a writ of Habeas Corpus as he has purported to do by this petition will remain suspended during the period of the Emergency
But even then it has been contended on behalf of the petitioner that article 359 does not authorise the suspension of the exercise of the right guaranteed under article 32 of the Constitution and that in terms the operation of article 32 has not been suspended by the President
This contention is wholly unfounded
Unquestionably the Court s power to issue a writ in the nature of habeas corpus has not been touched by the President s order but the petitioner s right to move this Court for a writ of that kind has been suspended by the order of the President passed under article 3591 the President s order does not suspend all the rights vested in a citizen to move this Court but only his right to enforce the provisions of articles 21 and 22
Thus as a result of the President s order aforesaid the petitioner s right to move this Court but Mot this Court s power under article 32 has been suspended during the operation of the Emergency with the result that the petitioner has no locus standi to enforce his right if any during the Emergency
It is true that the Presidential order of 1975 like the residential order of 1962 does not suspend the general power of this Court under Article 32 or the general powers of High Courts under Article 226 but the effect of taking away enforceability of the right of a detenu to personal freedom against executive authorities is to affect the locus standi in cases which are meant to be covered by the Presidential order
Courts even in Habeas Corpus proceedings do not grant relief independently if rights of the person deprived of liberty
If the locus standi of a deteneu is suspended no one can claim on his behalf to get his right enforced
The result is to affect the powers of Courts even if this be an indirect result confined to a class of cases but as the general power to issue writs of habeas Corpus is not suspended this feature was quite rightly I respectfully think pointed out by this Court in Mohan Chowdhury s case supra
It would not e correct to go further and read more into the passage cited above than seems intended to have been laid down there
The passage seems to me to indicate quite explicitly as the language of article 3591 itself shows that the detenu s right to move the Courts for the enforcement of his right to personal freedom by proving an illegal deprivation of it by executive authorities of the State is certainly not there for the duration of the Emergency
And to the extent that Courts do not and indeed
cannot reasonably act without giving the detenu some kind of a right or locus standi their power to proceed with a Habeas petition against executive authorities of the State is itself impaired
It may be that in form and even in subs 1   450
339 tance a general power to issue writs of Habeas Corpus remains with Courts
But that court only be invoked in cases falling entirely outside the purview of the Presidential order and Article 3591
That is how I with great respect understand the effect of Sree Mohan Chowdhury s case supra
It is possible that if a case so patently gross and clear of a detention falling on the face of the order of detention or the return made to a notice from the Court outside the provisions of the Act on the ground of personal malice of the detailing authority or some other ground utterly outside the Act arises so that no further investigation is called for
 it may be possible to contend that it is not protected by the Presidential order of 27th June 1975 and by the provisions of Article 3591 of the Constitution at all
If that could be patent without any real investigation or inquiry at all it may stand on the same footing as an illegal detention by a private individual
The mere presence of an official seal or signature on a detention order in such a purely hypothetical case may not be enough to convert it into a detention by the State or its agents or officers
That is the almost utterly inconceivable situation or type of case which could still be covered by the general power to issue writs of Habeas Corpus
There may for example be a case of a fabricated order of detention which the alleged detaining officer on receipt of notice disclaims
It is admitted that Part Ill of the Constitution is only meant to protect citizens against illegal actions of organs of the State and not against wrongs done by individuals
The remedy by way of a writ of Habeas Corpus is more general
It lies even against illegal detentions by private persons although not under Article 32 which is confined to enforcement of fundamental rights Vide Shrimati Vidya Verma through next friend R V section Mani vs Dr Shiv Narain 1
The Attorney General also concedes that judicial proceedings for trial of accused persons would fall outside the interdict of the Presidential order under Article 359  1   therefore it is unnecessary to consider hypothetical cases of illegal convictions where remedies under the ordinary law are not suspended
Now is it at all reasonably conceivable that a detention order would on the face of it state that it is not for one of the purposes for which it can be made under the Act or that it is made due to personal malice or animus of the officer making it  Can we for a moment believe that a return made on behalf of the State instead of adopting a detention order made by an officer duly authorised to act even if there be a technical flaw in it admit that it falls outside the Act or was made mala fide and yet the State is keeping the petitioner in detention  Can one reasonably conceive of a case in which on a Habeas Corpus petition a bare look at the detention order or on the return made the Court could hold that the detention by a duly authorised officer under a duly authenticated order stands on the same footing as a detention by a private person I would not like to consider purely hypothetical possibly even fantastically imaginary cases lest we are asked to act as we have practically been asked to on the assumption that reality is stranger than fiction
 and that be 1 119551 2 section C R p 983
340 cause according to the practice of determining validity of detention orders by the contents of grounds served a number of detentions were found in the past to be vitiated we should not present that executive officers will act according to law
Courts must presume that executive authorities are acting in conformity with both the spirit and the substance of the law omina praesumutur rite esse acts which means that all official acts are presumed to have been rightly and regularly done
If the burden to displace that presumption is upon the detenu he cannot on a Habeas Corpus petition under Article 226 of the Constitution ask the Court to embark upon an inquiry during the Emergency to allow him to rebut this presumption
To do so would in my opinion be plainly to countenance a violation of the Constitution
A great deal of reliance was placed on behalf of the detenus on the principle stated by the Privy Council in Eshuqbayi Eleko vs Officer Administering the Government of Nigeria  Anr
1 where Lord Aktin said at p 670 Their Lordships are satisfied that the opinion which has prevailed that the Courts cannot investigate the whole of the necessary conditions is erroneous
The Governor acting under the ordinance acts solely under executive powers and in no sense as a Court
As the executive he can only act in pursuance of the powers given to him by law
In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice
And it is the tradition of British justice that judges should not shrink from deciding such issues in the face of the executive
The analogy of the powers of the English Home Secretary to deport alience was invoked in this case
The analogy seems very close
Their Lordships entertain no doubt that under the legislation in question in the Home Secretary deported a British subject in the belief that he was an alien the subject would have the right to question the validity of any detention under such order by proceedings in habeas corpus and that it would be the duty of the Courts to investigate the issue of alien or not
 The salutary general principle enunciated above is available no doubt to citizens of this country as well in normal times
But it was certainly not meant to so operate as to make the executive answerable for all its actions to the Judicature despite the special provisions for preventive detention in an Act intended to safeguard the security of the nation and muchless during an Emergency when the right to move Courts for enforcing fundamental rights is itself suspended
Principles applicable when provisions such as those which the Act contains and a suspension of the right to move Courts for fundamental rights during an Emergency are operative were thus 1   670
341 indicated in Liversidge vs Sir John Anderson  Anr1 by Viscount Maughan at p 219 There can plainly be no presumption applicable to a regulation made under this extraordinary power that the liberty of the person in question will not be interfered with and equally no presumption that the detention must not be made to depend as the terms of the Act indeed suggest on the unchallengeable opinion of the Secretary Of State
Following the ratio decidendi of Rex vs Secretary of State for Home Affairs Ex party Lees2 the learned Law Lord said at p 217
As I understand the judgment in the Lees case it negatived the idea that the court had any power to inquire into the grounds for the belief of the Secretary of State His good faith not being impugned or to consider whether there were grounds on which he could reasonably arrive at his belief
In Liversidge s case supra the Court s power to inquire into the correctness of the belief of the Secretary of State was itself held to be barred merely by the terms of a Regulation made under a statute without even a constitutional suspension of the right to move Courts such as the one we have before us
In Liversidge s case supra Lord Wright explained Eshuqbayi Elekos  case supra  cited before their Lordships as follows at p 273 The other matter for comment is the decision in Eshuqbayi Eleko vs Officer Administering the Government of Nigeria 1931 AC 662 where the government claimed to exercise certain powers including deportation against the appellant
The appellant applied for a writ of habeas corpus on the ground that the ordinance relied on gave by express terms the powers contained only against one who was a native chief and who had been deposed and where there was a native custom requiring him to leave the area whereas actually not one of these facts was present in the case
It was held in effect that me powers given by the ordinance were limited to a case in which these facts existed
It was a question of the extent of the authority given by the ordinance
That depended on specific facts capable of proof or disproof in a court of law and unless these facts existed there was no room for executive discretion
This authority has in my opinion no bearing in the present case as I construe the powers and duties given by the regulation
There are also obvious differences between the ordinary administrative ordinance there in question and an emergency power created to meet the necessities of the war and limited in its operation to the period of the war
The powers cease with the emergency
But that period still continues and it being assumed that the onus is on the respondents in this action of unlawful imprisonment the onus 1 1942 A C p 206  217  219  273
2 342 is sufficiently discharged in my opinion by the fact of the order having been made by a competent authority within the ambit of the powers entrusted to him and being regular on its face
Viscount Maugham in Greene vs Secretary of State for Home Affairs1 after referring to a very comprehensive opinion of Wilmot C J
On the nature of Habeas Corpus proceedings in Common Law pointed out that a return good on its face and with no affidavit in support of it could not be disputed on the application for a writ
At Common Law the sacred character of the return as Wilmot C J called it even without a supporting affidavit could not be touched except by the consent of the parties because the whole object of the writ was to enquire into the existence of a legally recognised cause of detention in a summary fashion and not into the truth of facts constituting the cause
By the Habeas Corpus Act of 1816 the powers of Courts were extended so that it became possible to go behind the return in suitable cases other than those where a person was confined for certain excepted matters including criminal charges
In these excepted matters the return was and is still collective that English Courts do not go behind them
In Greene s case supra the rule of presumptive correctness of the return was applied to the return made on behalf of the Secretary of State to the extent of treating it as practically conclusive
It was held that the mere production of the Home Secretaries order the authenticity and good faith of which were not impugned constituted a complete answer to an application for a writ of Habeas Corpus and that it was not necessary for the Home Secretary to file an affidavit
It is interesting to note that in that case which arose during the Emergency following the war of 1939 the failure of the Advisory Committee to supply the correct reasons for his detention to the petitioner were not held to be sufficient to invalidate his incarceration
On the other hand in these country a violation of the obligation to supply grounds of detention has been consistently held to be sufficient to invalidate a detention before the changes in the Act and the Presidential order of 1975
By Section 7 of the Act 39 of 1975 Section 18 was added to the Act with effect from 25th June 1975
This provision reads 18
No person including a foreigner detained under this Act shall have any right to personal liberty by virtue of natural law or common law if any
In view of what I have pointed out earlier this provision was not necessary
It appears to have been added by way of abundant caution
By Section 5 of the amendment Act 14 of 1976 another amendment was made in Section 18 substituting  for the words under this Act used in Section 18 the words in respect of whom an order is made or purported to have been made under Section 3 respectively from 25th day of June 1975
These amendments are covered by Article 359 1A of the Constitution so that their validity is unassailable during the Emer 1 1942 A  
284  293
343 gency on the ground of violation of any right conferred by Part III Of the Constitution
Nevertheless the validity of Section 18 of the Act as it stands was challenged on the ground as I understand it that is described as the basic structure  of the Constitution was violated because it was submitted the Rule of Law which is a part of the basic structure was infringed by the amended provisions
As I have indicated below
 I am unable to subscribe to the view that the theory of basic structure amounts to anything more than a mode of interpreting the Constitution
It cannot imply new tests outside the constitution or be used to defeat Constitutional provisions
I am unable to see any force in the attack on the validity of Section 18 of the Act on this ground
The result of the amendments of the Act together with the emergency provisions and the Presidential order of 27th June 1975 in my opinion is clearly that the jurisdiction of High Courts is itself affected and they cannot go beyond looking at the prima facie validity of the return made
The production of a duly authenticated order purporting to have been made by an officer competent to make it under Section 3 of the Act is an absolute bar to proceeding further with the hearing of a Habes Corpus petition
D The purpose and meaning g of Emergency y provisions  particularly Article 359 of our Constitution
From the inception of our Constitution it was evident that the framers of it meant to establish a secular democratic system of Government with certain objectives before it without which real democracy is a mirage
Hence they provided us not only with an inspiring Preamble to the Constitution and basic Fundamental Rights to citizens but also with Directive Principles of State Policy so as to indicate how not only a political but what is more important social and economic democracy with maximum practicable equality of status and opportunity could be attained
They foresaw that it may be necessary for preserving the system thus set up and for ensuring a rapid enough march towards the objectives placed before the people of India to give the executive branch of Government wide powers in exceptional situations so that it may deal with all kinds of emergencies effectively and thereby safeguard the foundations of good Government which lie in discipline and orderliness combined with speedy and substantial justice
The late Prime Minister Jawaharlal Nehru once said You may define democracy in a hundred ways but surely one of its definitions is self discipline of the community
The more the self discipline the less the imposed discipline
Laws and law Courts are only part of a system of that imposed discipline which has to take its course when self discipline fails
Conditions may supervene in the life of a nation in which the basic values we have stood for and struggled to attain the security integrity and independence of the country or the very conditions on which existence of law and order and of law courts depend may be imperilled By forces operating from within or from outside the country
What these forces are how they are operating what information exists for the involvement of various individuals wherever placed could not 344 possibly be disclosed publicly or become matters suitable for inquiry into or discussion in a Court of Law
In Liversidge vs Sir John Anderson supra the following passages from Rex vs Halliday2 were cited by Lord Romer to justify principles adopted by four out five of their Lordships in Liversidges case in their judgments 1 Per Lord Atkins at p 271 However precious the personal liberty of the subject may be there is something for which it may well be to some extent sacrificed by legal enactment namely national success in the war of escape from national plunder or enslavement 
2 Per Lord Finlay LC at p 269
It seems obvious that no tribunal for investigating the question whether circumstances of suspicion exist warranting some restraint can be imagined less appropriate then a Court of law After citing the two passages quoted above Lord Romer observed in Liversidge s case supra at p 281 I respectfully agree
I cannot believe that the legis legislature or the framers of the regulation ever intended to constitute the courts of this country the ultimate judges of the matters in question
If as indicated above the opinion of the overwhelming majority of the Law Lords of England in Liversidge s cause supra following the principles laid down earlier also in Rex
vs Halide Ex Parte Zadig s supra was that the jurisdiction of Courts is itself ousted by a statutory rule vesting the power of detention on a subjective satisfaction based possibly on nothing more than a detenu s descent from or relationship or friendship with nationals of a country with which England may be at war and that the Secretary of State s order indicating that he was satisfied about one of these matters on hearsay information which could not be divulged in courts in the interests of national safety and security was enough I do not think that either our Constitution contemplating an ouster of jurisdiction of Courts in such cases or our Parliament in enacting provisions which have that effect was going beyond the limits of recognised democratic principles as they operate during emergencies
In fact
decisions on what restraints should be put and on which persons during a national emergency in the interests of national security are matters of policy as explained below which are outside the sphere of judicial determination
Situations of a kind which could not even be thought of in Eng land are not beyond the range of possibility in Asian and African countries or even in Continental Europe or in America judging from events of our own times
Indeed we too have had our fill of grim tragedies including the assassination of the father of the nation which 1  a n 271 269 345 could rock the whole nation and propel it towards the brink of an unfathomable abyss and the irreparable disaster which anarchy involves
Let me glance at the Constitutional History of England from where we took the writ of Habeas Corpus
Sir Erskine May wrote See Constitutional History of England B Chapter XI The writ of habeas corpus is unquestionably the first security of civil liberty
It brings to light the cause of every imprisonment approves its lawfulness or liberates the prisoner
It exacts obedience from the highest courts Parliament itself submits to its authority
No right is more justly valued
It protects the subject from unfounded suspicions from the aggressions of power and from abuses in the administration of justice
Yet this protective law which gives every man security and confidence in times of tranquillity has been suspended again and again in periods of public danger or apprehension
Rarely
 however has this been suffered without jealousy hesitation and re monstrance and whenever the perils of the State have been held sufficient to warrant this sacrifice of personal liberty no Minister or magistrate has been suffered to tamper with the law at his discretion
Parliament alone convinced of the exigency of each occasion has suspended for a time the right of individuals in the interests of the State
The first years after the Revolution were full of danger
A dethroned king aided by foreign enemies and a powerful body of English adherents was threatening the new settlement of the Crown with war and treason
Hence the liberties of Englishmen so recently assured were several times made to yield to the exigencies of the State
Again on occasions of no less peril the rebellion of 1755 the Jacobite conspiracy of 1722 and the invasion of the realm li by the Pretender in 1745 the Habeas Corpus Act was suspended
Henceforth for nearly half a century the law remained inviolate
During the American War indeed it had been necessary to empower the king to secure persons suspected of high treason committed in North America or on the high seas or of the crime of piracy but it was not until 1794 that the civil liberties of Englishmen at home were again to be suspended
The dangers and alarms of that dark period have already been recounted
Ministers believing the State to be threatened by traitorous conspiracies once more sought power to countermine treason by powers beyond the law
Relying upon the report of a secret committee Mr Pitt moved for a bill to empower his Majesty to secure and detain persons suspected of conspiring against his person and Government
He justified this measure on the ground that 346 Whatever the temporary danger of placing such power in the hands of the Government it was far less than the danger with which the Constitution and society were threatened
If Ministers abused the power entrusted to them they would be responsible for its abuse
It was vigorously op posed by Mr Fox Mr Grey Mr Sheridan and a small body of adherents
They denied the disaffection imputed to the people ridiculed the revelations of the committee and declared that no such dangers threatened the State as would justify the surrender of the chief safeguard of personal freedom
This measure would give Ministers absolute power over every individual in the kingdom
It would empower them to arrest on suspicion any man whose opinions were abnoxious to then the advocates of reform
 even the members of the Parliamentary opposition
Who would be safe when conspiracies were everywhere suspected and constitutional objects and language believed to be the mere cloak of sedition  Let every man charged with treason be brought to justice in the words of Sheridan where there was guilt let the broad axe fall but why surrender the liberties of the innocent  The strongest opponents of the measure while denying its present necessity admitted that when danger is imminent the liberty of the subject must be sacrificed to the paramount interests of the State
Ring leaders must be seized outrages anticipated plots disconcerted and the dark haunts of conspiracy filled with distrust and terror
And terrible indeed was the power now entrusted to the executive 
Though termed a suspension of the Habeas groups Act it was
in truth a suspension of Magna Charta and of the cardinal principles of the common law
Every man had hitherto been free from imprisonment until charged with crime by information upon oath and entitled to a speedy trial and the judgment of his peers
But any subject could now he arrested on suspicion of treasonable practices with out specific charge or proof of guilt his accusers were unknown  and in vain might he demand public accusation and trial
Spies and treacherous accomplices however circumstantial in their narratives to Secretaries of State and law officers shrank from the witness box and their victims rotted in gaol
Whatever the judgment temper and good faith of the executive such a power was arbitrary and could scarcely fail to be abused
Whatever the danger by which it was justified never did the subject so much need the protection of the laws as when Government and society were filled with suspicions and alarm
It was not until 1801 that the Act was considered no longer defensible on grounds of public danger and Lord Thurlow announced that he could not resist the impulse to deem men innocent until tried and convicted
It was urged in defence of a Bill indemnifying an those who may have misused or exceeded their powers during the 347 period of suspension of the Habeas Corpus in England that unless it was passed those channels of Information would be stopped on which Government relied for guarding the public peace
Hence a curtain was drawn to shield all whose acts could have been characterized as abuse or excess of power
It is unnecessary to cite from dicey or modern writers of British Constitutional Law such as Ms Wade and Phillips to show how in times of emergency the ordinary functions of Courts and in particular powers of issuing writs of Habeas Corpus have been curtailed
In such periods legislative measures known as suspension of the Habeas Corpus Act
Followed by Acts of Indemnity after periods of emergency are over have been restored to England
But during the first world war of 1914 and the last world war of 1939 it was not even necessary to suspend the Habeas Corpus Act in England 
The Courts themselves on an interpretation of the relevant regulations under the Defence of Realm Act abstained from judicial interference by denying themselves power to interfere 
In Halsburys Laws of England 4th Edn
Vol 8 para 871 page 624 we find the following statement about the Crown s Common Law prerogative power in an Emergency The Crown has the same power as a private individual of taking all measures which are absolutely and immediately necessary for the purpose of dealing with an invasion or other emergency
And as regards statutory powers of the Crown See Emergency Powers Act
 1920 Sec
l Emergency Powers Act  we find see para 983 page 627 If it appears to Her Majesty that events of a specified nature have occurred or are about to occur Her Majesty may by proclamation declare that a state or emergency exists
These events are those of such a nature as to be calculated by interfering with the supply and distribution of food water fuel or light  or with the means of locomotion to deprive the community or any substantial portion of the community or the essentials of life
No proclamation is to be in force for more than one month
 without prejudice to the issue of another proclamation at or before the end of that period
xxx xxx xxx xxx Where a proclamation of emergency has been made and so long as it remains in force the Crown has power by order in Council to make regulations for securing the essentials of life to the Community In America also the suspension of the right to writes of Habeas Corpus during emergencies so as to temporarily remove the regular processes of law is permissible by legislation See Cooleys Constitutional Law  4th Edn
Chapter 34
p 360 but it is limited by Article 1
Sec 9 clause 2 the American Constitution to situations in which there may be a rebellion or an invasion See Willis on 348 Constitutional Law of United States 1936 edn
p 441 and p 570
Even more drastic consequences flow from what is known in France as declaration of a State of Seige and in other countries as a Suspension of Constitutional Guarantees
Under our Constitution it will be seen from an analysis of emergency provisions that there is no distinction between the effects of a declaration of Emergency under Article 3521 whether the threat to the security of the State is from internal or external sources
Unlike some other countries powers of Presidential declarations under Article 3521 and 3591 of our Constitution are immune from challenge in Courts even when the Emergency is over
Another noticeable feature of our Constitution is that whereas the consequences given in Article 358 as a result of a Proclamation under Article 352 1 are automatic Presidential orders under Article 3591 may have differing consequences from emergency to emergency depending upon the terms of the Presidential orders involved
And then Article 359 1A made operative retrospectively by the 38th Constitutional amendment of 1st August 1975 makes it clear that both the Legislative and Executive organs of the State are freed for the duration of the Emergency from the limits imposed by Part III of the Constitution
It is unnecessary to refer to the provisions of Articles 356 and 357 except to illustrate the extremely wide character of Emergency powers of the Union Govt
which can by recourse to these powers make immune from judicial review suspend the federal features of our Constitution which have sometimes been elevated to the basic level
These provisions enable the Union Govt
to supersede both the legislative and executive wings of Government in a State in the event of a failure of Constitutional machinery in that State and to administer it through any person or body of persons under Presidential directions with powers of the State Legislature exercisable by or under the authority of Parliament
Article 360 applicable only to Proclamations of financial emergencies with their special consequences indicates the very comprehensive character of the Emergency provisions contained in part XVIII of our Constitution
We are really directly concerned only with Articles 352 and 353 and 358 and 359 as they now stand
They are reproduced below 352
1 If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened whether by war or external aggression or internal disturbance he may by Proclamation make a declaration to that effect
2 A Proclamation issued under clause 1 a may be revoked by a subsequent Proclamation b shall be laid before each House of Parliament c shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolution of both Houses of Parliament
349 Provided that if any such Proclamation is issued at a time when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of two months referred to in sub clause c and if a resolution approving the Proclamation has been passed by the Council of States but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People
3 A Proclamation of Emergency declaring that the security of India or of any part of the territory thereof is threatened by war or by external aggression or by internal disturbance may be made before the actual occurrence of war or of any such aggression or disturbance if the President is satisfied that there is imminent danger thereof
4 The power conferred on the President by this Article shall include the power to issue different Proclamations on different grounds being war or external aggression or internal disturbance or imminent danger of war or external aggression or internal disturbance whether or not there is a Proclamation already issued by the President under clause 1 and such Proclamation is in operation
5Notwithstanding anything in this Constitution a the satisfaction of the President mentioned in clause 1 and clause 3 shall be final and conclusive and shall not be questioned in any court on any ground b subject to the provisions of clause 2 neither the Supreme Court nor any other court shall have jurisdiction to entertain any question on any ground regarding the validity of i a declaration made by Proclamation by the President dent to the effect stated in clause 1 or ii the continued operation of such Proclamation
While a Proclamation of Emergency is in operation then a notwithstanding anything in this Constitution the executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised b the power of Parliament to make laws with respect to any matter shall include power to make laws conferring 350 powers and imposing duties or authorising the conferring of powers and the imposition of duties upon the Union or officers and authorities of the Union as respects that matter notwithstanding that it is one which is not enumerated in the Union List 358
While a Proclamation of Emergency is in operation nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that part be competent to make or to take but any law so made shall to the extent of the incompetency cease to have effect as soon as the Proclamation ceases to operate except as respects things done or omitted to be done before the law so ceases to have effect
359 1 Where a Proclamation of Emergency is in operation the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is ill force or for such shorter period as may be specified in the order
1A While an order made under clause 1 mentioning any of the rights conferred by Part III is in operation nothing in that Part conferring those rights shall restrict the power of the State as defined in said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take but any law so made shall to the extent of the in competency cease to have effect as soon as the order aforesaid ceases to operate except as respects things done or omitted to be done before the law so ceases to have effect
2 An order made as aforesaid may extend to the whole or any part of the territory of India
3 Every order made under clause 1 shall as soon as may be after it is made be laid before each House of Parliament
Before dealing with relevant authorities on the meaning and effects of Article 358 and 359 of the Constitution I will indicate the special features and context of the Presidential order of 27th June 1975 as compared with the Presidential order of 3rd November 1962 which was the subject matter of earlier pronouncement of this Court on which considerable reliance has been placed on behalf of the detenus
In fact the next two topics are so connected with the Emergency provisions that there is bound to be a good deal of overlapping between what I have for the sake of convenience only tried to discuss under three heads
Different heads or names are not infrequently used only to indicate different aspects of what is really one connected subject 351 matter
Perhaps the last and concluding topic is wide enough to cover the scope of the whole discussion
The effect of the Presidential orders and particularly the order of 27th June 1975 on the rights of detenus
The Presidential order of 3rd November 1962 was issued after the proclamation of Emergency under Article 3521 on 26th October 1962
That proclamation said  a grave emergency exists whereby the security of India is threatened by external aggression
On the other hand the Presidential order of 27th June 1975 with which we are concerned here was issued under a proclamation which declares that a grave emergency exists whereby the security
Of India is threatened by internal disturbances
There was also a Presidential proclamation of 3rd December 1971 repeating the terms of the proclamation of 26th October 1962 as under In exercise of the powers conferred by clause 1 of article 352 of the Constitution I V V Giri President of India by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by external aggression 
The Presidential order of 3rd November 1962 reads as follows In exercise of the powers conferred by clause 1 of article 359 of the Constitution the President hereby declares that the right of any person to move any court for the enforcement of the rights conferred by article 21 and article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause 1 of Article 352 thereof on the 26th October 1962 is in force if such person has been deprived of any such rights under the Defence of India ordinance 1962 4 of 1962 or any rule or order made thereunder
The Presidential order of 27th June 1975 runs as follows In exercise of the powers conferred by clause 1 of article 359 of the Constitution the President hereby declares that the right of any person including a foreigner to move any Court for the enforcement of the rights conferred by article 14 article 21 and article 22 of the Constitution and ail proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the Proclamations of Emergency made under clause 1 of article 352 of the Constitution on the 3rd December 1971 and on the 25th June 1975 are both in force 352 2 This order shall extend to the whole of the territory of India except the State of Jammu and Kashmir
3 This order shall be in addition to and not in derogation of any order made before the date of this order under clause 1 of article 359 of the Constitution
The striking differences in the terms of the two Presidential orders set out above are 1 The Presidential order of 1962 did not specify Article 14 of the Constitution but Article 14 guaranteeing equality before the law and equal protection of laws to all persons in India is mentioned in the 1975 order
To my mind this does make some difference between the intentions behind and effects of the two Presidential orders
2 The Presidential order of 1962 expressly hedges the suspension of the specified fundamental rights with the condition with regard to deprivations covered by articles 21 and 22 of the Constitution that if such person is deprived of such right under the Defence of India Act 1962 or any rules or order made thereunder
In other words on the terms of the 1962 Presidential order the Courts were under a duty to see whether a deprivation satisfies these conditions or not
They could adjudicate upon the question whether a detention was under the Act or a rule made thereunder
On the other hand the Presidential order of 1975 unconditionally suspends the enforcement of the rights conferred upon any person including a foreigner to move any Court for the enforcement of the rights conferred by Articles 14 21 and 22 of the Constitution
The Courts are therefore no longer obliged or able to test the validity of a detention by examining whether they conform to statutory requirements
They will have to be content with compliance shown with forms of the law
3 Presidential order of 1962 makes no mention of pending proceedings but the 1975 order suspends all pending proceedings for the enforcement of the rights mentioned therein
This further clarifies and emphasizes that the intention behind the Presidential order of 1975 was to actually affect the jurisdiction of Courts in which proceedings were actually pending
The inference from this feature also is that all similar proceedings in future will similarly be affected
The result is that I think that there can be no doubt whatsoever that the Presidential order of 27th June 1975 was a part of an unmistakably expressed intention to suspend the ordinary processes
Of law in those cases where persons complain of infringement of their fundamental rights by the executive authorities of the State
The intention of the Parliament itself to bring about this result so that the jurisdiction of Courts under Article 226 in this particular type of cases is itself affected for the duration of the emergency seems clear enough from the provisions of Section 16A9 of the Act introduced by Act No 14 of 1976 which received Presidential assent on 25th January 1976 making Section 16A9 operative retrospectively from 25th June 1975
353 The question before us is What is the intention behind the Presidential order of 27th June 1975
After assigning a correct meaning to it we have to determine whether what was meant to be done lay within the scope of powers vested by Article 359 of the Constitution in the President
There is no doubt in my mind that the object of the Presidential order of 27th June 1975 by suspending the enforcement of the specified rights was to affect the powers of Courts to afford relief to those the enforcement of whose rights was suspended
I have already indicated this was within the purview of Article 3591 is the Constitution
Hence the objection that the powers of the Court under Article 226 may indirectly be affected is no answer to the direct suspension of rights which was bound to have its effect upon the manner in which jurisdiction is or could reasonably be exercised even if that jurisdiction cannot be itself suspended for all types of cases
It is enough if the ambit of the power to suspend under Article 3591 is such as to make exercise of the jurisdiction to protect guaranteed fundamental rights not reasonably possible
Section 16A9 also appears to me as held by My lord the Chief Justice to make it impossible for Courts to investigate questions relating to the existence or absence of bona fides at least in proceedings under Article 226 of the Constitution
It is clear that the validity of Section 16A9 cannot be challenged on the ground of any violation of Part III of the Constitution in view of the provisions of Article 359 1A 
No previous decision of this Court deals with a situation which results from the combined effect of a Presidential order couched in the language of the order of 27th June 1975 and a statutory provision such as Section 16A9 of the Act the validity of which cannot be challenged
Hence strictly speaking earlier decisions are not applicable
I will however consider them under the next heading as considerable argument has taken place before us on the assumption that these cases do apply to such a situation
FThe Rule of Law as found in our Constitution and how it operates during the Emergency
As I have indicated earlier in this judgment the term Rule of Law is not a magic wand which can be waved to dispel every difficultly
It is not an Aladin s Lamp which can be scratched to invoke a power which brings to any person in need whatever he or she may desire to have
It can only mean for lawyers with their feet firmly planted in the realm of reality what the law in a particular State or country is and what it enjoins
That law in England is the law made by Parliament
That is why Sir Ivor Jennings said See Law and the Constitution III Edn that in England supremacy of Parliament is the Constitution
And naturally the Constitution of a country and not something outside it contains the Rule of Law of that country
This means that the Rule of Law must differ in shades of meaning and emphasis from time to time and country to country
It could not be rigid unchanging and immutable like the  proverbial laws of the Medes and Persians
Nevertheless one has to understand clearly what it means 25 833 Sup C I76 354 in a particular context
It cannot be like some brooding omnipotence in the skies
Its meaning cannot be what anyone wants to make it
It has to be for each particular situation indicated by the Courts which are there to tell the people what it means
This Court has in no unmistakable terms indicated what the Constitution means and how the Rule of Law embedded in it works even during Emergencies
A statement of the Rule of Law by Jackson J in Youngstown Sheet  Tube Co vs Sawyer1 quoted with approval by this Court in Chief Settlement Commissioner Rehabilitation Department Punjab  ors
vs Om Prakash  ors2 etc
at page 661 With all its defects delays and inconveniences men have discovered no technique for long preserving free government except that the Executive be under the law and that the law be made by Parliamentary deliberations
It was explained there In our constitutional system the central and most characteristic feature is the concept of the rule of law which means in the present context the authority of the law courts to test all administrative action by the standard of legality
The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the appropriate action in the competent court
The rule of law rejects the conception of the Dual State in which governmental action is placed in a privileged position of immunity from control of law
Such a notion is foreign to our basic constitutional concept
This statement no doubt includes the concept of determination by Courts of the question whether an impugned executive action is within the bounds of law
However it presupposes firstly the existence of a fixed or identificable rule of law which the executive has to follow as distinguished from a purely policy decision open to it under the wide terms of the statute conferring a discretionary power to act
and secondly the power of the Courts to test that action by reference to the Rule
Even in Emergencies provided the power of the Court to so test the legality of some executive act is not curtailed Courts will apply the test of legality if the person aggrieved brines the action in the competent Court
But if the locus standi of the person to move the Court is gone and the competence of the Court to enquire into the grievance is also impaired by inability to peruse the grounds of executive action or their relationship with the power to act it is no use appealing to this particular concept of the Rule of law set out above
It is just inapplicable to the situation which arises here
Such a situation is governed by the Emergency provisions of the Constitution These provisions contain the Rule of Law for such situations in our country
1   655
2   661 355 In Mohd Yaqub etc
vs the State of Jammu  Kashmir1 a seven Judge bench of this Court pointed out that whereas Article 358 by its own force suspends the guarantees of Article 19 Article 3591 has the effect of suspending the operation of specified fundamental rights strictly speaking it is enforcement only which is suspended so that these concepts cannot be used to test the legality of executive action
Now much of what Dicey meant by the Rule of Law was certainly sought to be embodied in Part III of our Constitution
If however the application of Articles 14 19 21 and 22 of the Constitution is suspended it is impossible to say that there is a Rule of Law found there which is available for the Courts to apply during the emergency to test the legality of executive action
Makhan Singh vs State of Punjab2 a seven Judge decision of this Court was sought to be made a foothold for several arguments on behalf of the detenus
It however seems to me to have laid down more propositions which demolish various contentions advanced on behalf of the detenus than those which could assist them
One main question considered in that case was whether Section 4911b of the Code of Criminal Procedure could afford a statutory remedy by an order or direction in the nature of a writ of Habeas Corpus at a time when enforcement of the fundamental right to personal liberty was suspended by the Presidential order of 1962 already set out above
The suggestion that a Common Law remedy by way of writ of Habeas Corpus exists even after Section 491 was introduced in the Criminal Procedure Code in 1923 was negatived
The sweep of Article 3591 of the Constitution taking in the jurisdiction of any Court was held wide enough to cover any kind of relief claimed by a petitioner for the enforcement of a specified fundamental right
Inter alia it was held at p 821 822 If article 3591 and the Presidential order issued under it govern the proceedings taken under section 4911b the fact that the court can act suo motu will not make any difference to the legal position for the simple reason that if a party is precluded from claiming his release on the ground set out by him in his petition the Court cannot purporting to act suo motu pass any order inconsistent with the provisions of article 3591 and the Presidential order issued under it
Similarly if the proceedings 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 rights is to suspend the jurisdiction of the Court pro tanto in that behalf This is exactly the interpretation which I have adopted above of Sree Mohan Chowdhury s case supra
1 1968 2 section C R p 227  234
2 1964 4 section C R 797  821 822 356 It was also held in Makhan Singhs case supra that as no attack on the validity of the Defence of India Act of 1962 and the Rules framed thereunder on the ground of violation of fundamental rights was open during the emergency no petition was maintainable on the ground of such alleged invalidity
It was held at p 825 826 there Therefore our conclusion is that the proceedings taken on behalf of the appellants before the respective High Courts challenging their detention on the ground that the impugned Act and the Rules are void because they contravene articles 14 21 and 22 are incompetent for the reason that the fundamental rights which are alleged to have been contravened are specified in the Presidential order and all citizens are precluded from moving any Court for the enforcement of the said specified rights
After having decided the questions actually calling for determination in that case Gajendragadkar J speaking for the majority ex pressed some views on the possible pleas which may still be open to petitioners in hypothetical cases despite the Presidential order of 1962 set out above passed under Article 3591
He said at page 828 If in challenging the validity of his detention order the detenu is pleading any right outside the rights specified in the order his right to move any court in that behalf is not suspended because it is outside 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
 Again it was observed at page 828 829 Take also a case where the detenu moves the Court for a writ of habeas corpus on the ground that his detention has been ordered malafide
It is hardly necessary to emphasis that the exercise of a power malafide is wholly outside the scope of the Act conferring the power and can always be successfully challenged
It is true that a mere allegation that the detention or malafide would not be enough the detenu will have to prove the malafides
But in the mala fides are alleged the detenu cannot be precluded from substantiating his plea on the ground of the bar cleated by article 3591 and the Presidential order
That is another kind of plea which is outside the purview of article 3591 The two passages set out above stating what may be the position in purely hypothetical cases are the mainstrays of some of the argu 357 ments for the petitioners But none of the Counsel for the petitioners has stated how these observations are applicable to facts of the case to the particular petitioner for whom he appears
Assuming however that the hypothetical cases indicate good grounds on which a Habeas Corpus petition could be allowed even in an Emergency it was certainly not decided in Makhan Singhs case supra what the process could be for ascertaining that one of these grounds exist
if that process involves a consideration of evidence in support of a plea such as that of mala fides in proceedings under Article 226 the most important evidence would be grounds of detention
These grounds constituted the lever which could have been and was used in the past by Courts to reach decisions on various pleas such as the plea that the order was not passed after due application of mind to the facts of the detenu s case or that the  satisfaction reached was not with regard to legally relevant grounds at all
No such means are available now
This difficulty was certainly not in the way at the time of the decision in Makhan Singhs case supra
I am therefore of the opinion that pleas which involve any adduction of  evidence would at any rate be entirely excluded by the combined effect of the terms of the Presidential order of 27th June 1975 read with the amended provisions of Section 16A9 of the Act
A perusal of section Pratap Singh vs State of Punjab1 will show the kind of evidence which often becomes necessary to justify a plea of malice in fact
Pleas about vires of the detention order itself eg whether it is based on irrelevant grounds or was not passed after due application of mind often require investigation or questions of fact involving scrutiny of actual grounds of detention which is hit by the embargo against an assertion of a right to move for enforcement of the right to personalfreedom and prohibition against disclosure of grounds
So long as the executive authorities of the State purport to act under the Act their preliminary objection against further hearing will prevail unless of course the officer purporting to detain had in fact not been invested at all with any authority to act in which case the detention would in my opinion be on the same footing as one by a private person who has no legal authority whatsoever to detain
But such a defect has to be apparent either on the face of the order or admitted in the return
Moreover it can be cured by an adoption of the order by the State
Detentions which not only do not but could not possibly have ally apparent ostensible or purported executive authority of the State whatsoever to back them could be equated with those by private persons
The suspension of enforcement of specified fundamental rights operates only to protect infringements of rights by the State and its authorised agents acting or purporting to act in official capacities which they could and do hold
A claim to an order of release from such a patently illegal detention which is not by the State or on its behalf
could be enforced even during the current Emergency
But there is no such case before us
All the cases before us are as far as I know
OF detentions by duly empowered official under prima facie good orders
The possibility however of so unlikely a hypothetical case 11964 4 section C R 733
358 where there is a lack of legal power to act which could be easily removed by the executive authorities of the State concerned themselves whenever they desire to do so is only mentioned to illustrate my view that the test of legality applied by Courts is not entirely abrogated and abandoned in the current emergency
But it can be only one
which should be applicable without going into facts lying behind the return
The presumption of validity of a duly authenticate order
of an officer authorized to pass it is conclusive in Habeas Corpus proceedings during the current emergency State of Madhya Pradesh  Anr
vs Thakur Bharat Singh1 was another decision of the Constitution Bench of this Court relied upon strongly on behalf of detenus
In that case an order prohibiting petitioner from residing in a specified area under section 31b of the Madhya Pradesh Public Security Act 1959 which was found to be void because the provision infringed Article 19 of the Constitution was held to be challengeable during an Emergency despite the provisions of article 358 of the Constitution
The ground of the decision was that although the empowering provision could not have been challenged if it was contained in an enactment made during the emergency yet as the provision was made by an Act passed at a time when Article 19 was operative the invalidity of the provision could be demonstrated despite the existence of the emergency
I do not think that there is any such case before us
It seems to me to he possible to distinguish the case on the ground that it was a case of patent voidness of the order passed so that the principle of legality which is not suspended could be affirmed even apart from enforcement of a specified fundamental right
I think it was placed on such a footing by Shah J speaking for this Court
State of Maharashtra vs Prabhakar Pandurang Sangzgiri  Anr
2 another decision of the Constitution Bench of this Court was also cited
There an illegal order prohibiting the sending out of jail by a detenu of a book on matters of scientific interest only for publication was quashed by a High Court under Article 226 of the Constitution despite the Presidential order under Article 359 of the Constitution on the ground that there was no condition at all in the Bombay Conditions of Detention order 1951 authorising the Government of Maharashtra to prohibit the publication of a book of purely scientific interest just because the petitioner happened to be detained under the Defence of India Rules 1962
The High Court s view was affirmed by this Court
This case has nothing to do with preventive detention
It is a case in which this Court held that an ultra vires order could be set aside
This could be done under the residuary jurisdiction of the High Court which could operate for any other purpose
The mere existence of the emergency could not it was held suspend this power
The test applied was of bare illegality outside Article 19 of the constitution 
1 11967 2 section C R 454
2 1966 Supp section section C R 702
359 In Dr Ram Manohar Lohia vs State of Bihar  ors
1 this Court did in a petition under Article 32 of the Constitution apply the test of a satisfaction required on relevant grounds by Rule 30 subrule 1 Defence of India Rules 1962 as a condition precedent to detention because the grounds of detention were mentioned in the detention order itself so that they could be used to determine whether the detention order fell within the purposes of the Act
The writ petition was allowed
The alleged satisfaction of the District Magistrate who was the detaining authority was found on the ground given for detention to fall outside Rule 30
It was held that the Presidential order under Article 359 was not intended to condone violations of the defence of India Act or the rules made thereunder and did not authorise ultra vires or mala fide detentions
It was pointed out here that satisfaction about the need to detain in the interests of law and order  was not the same thing as one in the interests of public order
In this case a well known distinction between  public order and law and order was drawn by Hidayatullah J in the following terns It will thus appear that just as public order in the rulings of the Court earlier cited was said to comprehend disorders of less gravity than those affecting security of State law and order also comprehends disorders of less gravity than those affecting public order
One has to imagine three concentric circles
Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State
It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State
By using the expression maintenance of law and
Order the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rulers
I take the decision of this Court in Dr Lohias case to mean that if the order on the face of it is bad and does not satisfy the requirements of the law authorising detention the detenu may be released
Sarkar J pointed out there The satisfaction of the Government which justifies the order under the rule is a subjective satisfaction
A court cannot enquire whether grounds existed which would have created that satisfaction on which alone the order could have been made in the mind of a reasonable person
If that is so and that indeed is what the respondent State contends it seems to me that when an order is on the face of it not in terms of the rule a court cannot equally enter into an investigation whether the order of detention was in fact that is to say irrespective of what is stated in it in terms of the rule
In other words
in such a case the State cannot be heard to say or prove that the order was in fact made for example to prevent acts prejudicial to public
Order which would 1  360 bring it within the rule though the order does not say so
To allow that to be done would be to uphold a detention without a proper order
The case was also decided on a consideration of evidence on the ground that there was an area of enquiry opened up by the grounds given for entry by the Court
I do not know how any decision could have been given in Dr Lohia s case if grounds of detention were not found to be bad on the very face of the order stating those grounds or if there was no door left open for judicial scrutiny due to a provision such a Section 16A9 of the Act before us
Thus the law considered and applied in Dr Lohias case was different from the law we have to apply under a different set of circumstances as explained above
In K Anandan Nambiar  Anr
vs Chief Secretary Government of Madras  ors1 a writ petition under Article 32 of the Constitution by a Member of Parliament during the currency of an emergence and a Presidential order was dismissed although his locus standi to maintain the petition was affirmed on the following ground The petitioners contend that the relevant Rule under which the impugned orders of detention have been passed is invalid on grounds other than those based on articles 14 19 21 and 22 and if that plea is well founded the last clause of the Presidential order is not satisfied and the bar created by it suspending the citizens  fundamental rights under Articles 14 21 and 22 cannot be pressed into service
Apparently the view adopted in Nambiar s case supra was that to question the validity of the provision under which the detention order is made could not be equated with an allegation of infringement of procedure established by law
Moreover this decision was also in a different context with a different set of applicable provisions
None of the cases before us involves the assertion that the power under which the detention order purports to be made itself did not exist in the eye of law
In Durga Dass Shirali vs Union of India  ors
a Habeas Corpus petition against a detention order under Rule 30 of the Defence of India Rules 1962 was again dismissed
But it was held that Article 358 and the Presidential order under Article 3591 did not debar the petitioner from assailing his detention on the ground of mala fides or on the ground that any of the grounds mentioned in the order of detention is irrelevant
This case is also distinguishable on the ground that the context from the point of view of the applicable law was different
In Jai Lal vs State of West Bengal 8 this Court after taking evidence by affidavits into account and considering the pleas of mala fides rejected the petitioner s case although the petitioner was held on the strength of earlier decisions of this Court entitled to raised the 1 1966 2 Sr C R 406
2  3 1966 Supply
section C R p 4 64
361 pleas of mala fides despite the Proclamation of emergency and the Presidential order
Again the context and the applicable law there were different We however see that despite the Proclamation of emergency and a Presidential order under Article 3591 this Court has held that High Courts in exercise of their supervisory jurisdiction could entertain Habeas Corpus petitions and enforce the principle of legality against the detaining authorities
No doubt the executive and the legislative organs of the State were fully aware of the nature and effect of the decisions of this Court
It is therefore not surprising that by means of a differently phrased Presidential order of 17th Junc
1975 and the amendment in the Act introducing rather drastic provisions of Section 16A of the Act the intention has been made clear that preventive detention should be a matter controlled exclusively by the executive departments of the State
It was contended by Mr Tarkunde that the Rule of Law under our Constitution is embodied in the principle of Separation of Powers
It is very difficult for me to see the bearing of any such doctrine on a pure and simple question of determination of the meaning of constitutional and statutory provisions couched in words which leave few D  doubts unresolved
However as arguments based on this doctrine were advanced I will deal with the manner in which I think laws relating to preventive detention fit in with the extent to which our constitution recognises the doctrine
In Rai Sahib Ram Jawaya Kapur  ors
vs The Stale of Punjab1 Mukherjea CJ speaking for this Court said E The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts of branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumptions by one organ or part of the State of functions that essentially belong to another
The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature
He further added Our Constitution though federal in its structure is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of Governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State
If an order of preventive detention is not quasi judicial as it cannot be because of the impossibility or applying any objective 1 A I R 1955 section C 549
362 standards to the need for it in a particular case there could be no question of violating any principle of separation of powers by placing preventive detention exclusively within the control of executive authorities of the State for the duration of the Emergency
That seems lo me to the effect of the emer ency provisions of the Constitution and the amendments of the Act already dealt with by me
Commenting upon Liversidge s case supra in The Law Quarterly Review 1942 Vol
58 p 2
 the celebrated jurist and authority on English Constitutional history and law Sir William Holdsworth supporting majority decision there opined The question turns not as Lord Atkin says upon whether the common law or the statute law has postulated a reasonable  cause for a decision or an action but upon the question whether or not the decision or the action to be taken on a reasonable cause raises a justifiable issue
Clearly the question whether a person is of hostile origin or associations so that it is necessary to exercise control over him raises not a justifiable but a political or administrative issue
He added On principle this distinction seems to me be he clearly right
If the issue is justifiable if that is it raises an issue within the legal competence of the Court to try the Court can decide on the facts proved before it whether a cause or a suspicion is reasonable for it knows the law as to what amounts in the circumstances to a cause or a suspicion which is reasonable
If on the other hand the issue is not justifiable if that is it turns not on a knowledge of the law as to what amounts in the circumstances to a reasonable cause or suspicion but on political or administrative considerations it can have no knowledge of the weight to be attached to facts adduced to prove the reasonableness or unreasonableness of the cause or suspicion for it has neither the knowledge nor the means of acquiring the know ledge necessary to adjudicate upon the weight to be attach ed to any evidence which might be given as to the existence of circumstances of suspicion or as to the reasonableness of belief Since therefore it is impossible to apply an objective standard through the agency of the Courts the only possible standard to be applied the subjective standard so that the Secretary of State s statement that he had a reason able cause for his belief must be conclusive
If the meaning of the emergency provisions in our Constitution and the provisions of the Act is clearly that what lies in the executive field as indicated above should not be subjected to judicial scrutiny or judged by judicial standards of correctness I am unable to see how the Courts can arrogate unto themselves a power of judicial superintendence which they do not under the law during the emergency  possess
363 Dean Roscoe Pound in the Green Foundation Lectures on Justice h According to Law Yale University Press 1951 begins his answer to the question as to what justice is by a reference to the jesting Pilate who would not stay for the answer because he knew that philosophers disagreed so much in their answers that there could be no completely satisfactory answer
He divides justice itself into three heads according to the three types of bodies or authorities which could administer it and discusses the advantages and disadvantages of each Legislative Executive Judicial
He rejects Legislative Justice said to be most responsive to popular will as too uncertain unequal and capricious 
He said that its history even in modern times was filled with legislative lynchings and that this kind of justice was ton susceptible to the influence of personal solicitation lobbying and even corruption and subject to guests of passion prejudice and partisanship
He thought that executive or administrative justice which becomes inevitable in carrying out vast schemes of modern socialistic control and planning of economic social and cultural life of the people by the State was also despite its own mechanisms of control against misuse of power fraught with serious dangers indicated by him
Finally Dean Pound finds judicial justice though not entirely immune from error and sometimes grievous and costly error to be superior to the other two types of justice despite its own inherent shortcomings as compared with executive or administrative justice for special types of cases
Now  the question before us is not whether Courts should apply the high standards of judicial justice to the facts of each individual case which are not before us for consideration at all
The question before us is purely one of the interpretation of laws as we find them
on a correct interpretation of the legal provisions we find that the jurisdiction of Courts was itself meant to be ousted for the duration af the emergency to scrutinise the facts or reasons behind detention orders purporting to have been made under the Act
because the judicial process suffers from inherent limitations in dealing with cases of this type we are bound by the canons of judicial justice itself to declare that this is what the laws mean
It appears to me that it does not follow from a removal of the normal judicial superintendence even over questions of vires of detention orders which may require going into facts behind the returns that there is no Rule of Law during the emergency or that the principles of ultra vires are not to be applied at all by any authority except when on the face af the return itself it is demonstrate in a Court of Law that the detention does not even purport to be in exercise of the executive power or authority or is patently outside the law authorising detention
It seems to me that the intention behind emergency provisions and of the Act is that although such executive action as is not susceptible to judicial appraisement should not be subjected to it yet it should be honestly supervised and controlled by the hierarchy of executive authorities themselves It enhances the powers and therefore the responsibilities of the Executive
A maxim of justice is sometimes said to be Let the heavens fall but justice must be done 
As applied to judicial justice it means 364 that justice must accord with the highest standards of objective impartial  unruffled dictates a clear judicial conscience working without t fear or favour affection or ill will
It does not mean that the object of judicial justice is either to make the heavens fall  or that it should be oblivious to consequences of judicial verdicts on the fate of the nation
It fully recognises the legal validity of the principle adopted by the English House of Lords in both Sadiqs case supra and Liversidge s case supra Salus Populi Est Supreme Lex regard for the public welfare is the highest law
This is the very first maxim given Broom s Legal Maxim under the first head Rules founded on public policy See Broom s legal Maxims p 1
It is not my object to animadvert here at length on any weakness in our legal or judicial system
I would however like to point out that judicial justice can only be justice according to law
It tends more often to accord with legal justice than moral justice
Not only are the fact finding powers of Courts limited by rules of evidence and procedure but the process of fact finding and adjudication can miss their objects due to the buying power of money over venel witnesses and the capacity of the wealthy to secure the best forensic talents in the country even if we do not take into account the liability of judges
like the rest of human beings to err
Ends of justice can be frustrated by all kinds of abuses of the processes of Courts The machinery of executive justice though not hide bound by technical rules of evidence and procedure can also be and often is inordinately dilatory
Its wheels can be clogged by red tape and by corrupt clerical underlings if their palms are not greased by honest citizens
Even those in the upper echelons of the bureaucracy can be sometimes hopelessly unable to see the true objects of an administrative scheme or of the policy embodied in a statute
They tend to be more anxious to please their superiors than to do justice so that matters in which executive heads may not get interested are liable to be neglected for years and even forgotten whereas others in which they are interested received speedy attention
They are not even aided by lawyers who whatever else may be said about them have undoubtedly imagination courage independence and devotion to their client s interests
In any case executive justice lacks the appearance of detachment
Justifiable disputes between the State and the citizen
On principles of natural justice require independent authorities for their resolution
It is for this reason that Article 226 of the Constitution places administrative action and inaction even at the highest levels under judicial superintendence when it impinges on rights of persons although this may have given rise to problems of its own either due to misuse by litigants of the powers of High Courts under Article 226 of the Constitution or want of clarify in the drafting of our statutes or the difficulties experienced by the executive officers of Government in understanding the laws or the manner in which their own duties are to be carried out
Considerations such as those mentioned above arising out of alleged carelessness with which according to the learned Counsel for the detentes detentions are sometimes ordered were placed before us so 365 that we may not deny powers of rectification of apparent errors of detaining officers to High Courts
It was stated by one learned Counsel that a detention order was once issued against a person who was dead
Obviously no detention order could be executed against a dead person and no writ petition could be moved on behalf of such a person
I have however
 no doubt that the machinery of the preventive detention is not so defective as to prevent executive authorities at the highest levels from doing justice in appropriate cases where real injustice due to misrepresentations or mis apprehensions of fact is brought to their
notice
Not only are the highest executive authorities under whose supervision the administration of preventive detention laws is expected to take place better able than the High Courts acting under Article 226 of the Constitution to go into every question of fact and are in a much better position to know all relevant facts but their knowledge f the meaning of laws to be administered and the policies underlying them could not be less even if they are not better known to them than to the High Courts on such a matter as preventive detention
As already indicated it raises essentially matters of policy
Courts cannot decide what individuals with what kind of associations and antecedents should be detained
In some cases the associations and affiliations of individuals with groups or originations may certainly be matters of common public knowledge
But it is only the membership and associations of persons which may be matters of public knowledge
The nature of information and the manner in which individuals or organisations concerned may do something which may constitute a danger to the security of the State are matters of appraisement of situations and policies on which information could certainly not be broadcast
I therefore think that a challenge to the validity of Section 16A9 based either on the submission that grounds for detention do not call for secrecy or that the provision is an unwarranted invasion of judicial power even in an emergency is not well founded
I will indicate below the safeguards which exist in the Act itself for obtaining redress on the executive side in cases of preventive detention
As was held by this Court in Ram Jawaya Kapur s case supra there is no such strict separation of powers under our Constitution as one finds in the American Constitution
No particular provision of the Constitution could be pointed out in support of the proposition that preventive detention is a matter in which judicial superintendence must necessarily be preserved as a part of the doctrine of separation of powers
Section 3
3 of the Act shows that the detaining officer has to submit a report forthwith on a case of preventive detention to ether with grounds of detention and particulars of the case for the approval of the State Government
The detention order itself unless approved by the State Government lapses automatically after 12 days
In special cases covered by Section 8 of the Act the proviso to Section 3 sub
3 makes the initial order subject to the approval of the State Government operative for 22 days
In cases covered by Section 16A2 and 3 of the Act in which no grounds of detention are to be supplied to the detenu the State Government has to review and confirm the order if the detention is to continue beyond 15 days
366 Section 14 of the Act provides for revocation of detention orders without prejudice to the provisions of Section 21 of the 
The power of revocation may be exercised not only by the detaining officer concerned but by the State Government or the Central Government also Temporary release of persons detained is also provided for by Section 15 of the Act on the order of the appropriate Government as to prevent undue hardship and to Meet special con contingencies
The provisions of Article 353a of the Constitution also the Union Government to issue directions to a State Government relating to the manner in which a State s executive power is to be exercised during the Emergency
Means of redress in cases such as those of mistaken identity or misapprehension of facts or detentions due to false and malicious reports circulated by enemies are thus still open to a detenu by approaching executive authorities
There is no bar against that
What is not possible is to secure a release by an order of a Court in Heabeas Corpus proceedings after taking the Court behind a duly authenticated prima facie good return
An argument before us to which would like to advert here was that notwithstanding the emergency provisions
 some undefined or even defined principles of Rule of Law outside the emergency provisions can be enforced by the High Courts in exercise of their powers under Article 226 of the Constitution because the Rule of Law has been held by this Court to be a part of the inviolable basic structure of the Constitution
It was submitted that as this basic structure was outside even the powers of amendment of the Constitution under Article 368 of the Constitution it could not be affected by emergency provisions or by provisions of the Act
We were asked to atleast interpret the emergency provisions and the Act in such a way as to preserve what wasrepresented to be the Rule of Law as a part of the basic structure of the Constitution
It seems to me that the theory of a basic structure of the Constitution cannot be used to build into the Constitution an imaginary part which may be in conflict with Constitutional provisions
The Constitution cannot have a base cut away from the super structure
Indeed as explained above it seems to me that the emergency provisions could themselves be regarded as part of the basic structure of the Constitution
At any rate they are meant to safeguard the basis of all orderly Government according to law
Speaking for myself I do not look upon the theory of a basic structure of the constitution an anything more than a part of a well recognised mode of construing a document
The constitution like any other document has to be read and construed as a whole
This is the common principle which was applied though in different ways and with differing results both by Judges taking the majority as well as minority views in Kesavananda Bhartis case supra
Some of the learned Judges thought that by an application of this rule the scope of the power of amendment contained in Article 368 of the Constitution  was limited by certain principles which though not expressly laid down in Article 368 could be read into the word amendment as implied limitations upon powers under Article 368
On the other 367 hand other learned Judges including myself took the view that considering the provisions of the Constitution as a whole the powers of amendment of the Constitution in Article 368 which operated on all parts of the Constitution itself and embraced even the power of amending Article 368 of the Constitution could not reasonably be so limited
The theory therefore was nothing more than a method of determining the intent behind the constitutional provisions
It could not and did not build and add a new part to the Constitution It was then urged that want of bona fides was expressly left open for determination by Courts even in an emergency in Liversidges s case
It must not however be forgotten that Liversidges case was not a decision upon a habeas corpus proceeding but it came to the House of Lords at an interlocutory stage of a suit for damages for false imprisonment when Liversidge was denied access to particulars of grounds of his detention
The question considered there was whether he could ask for them as a matter of right
The House of Lords denied him that right
In Greene s case supra which was heard with Liversidge s case supra by the House of Lords the decision was that the return made on behalf of the Secretary of State could not be questioned
It is true that even in Greene s case supra a theoretical exception was made for a case of want of bona fides
I call it theoretical because such a case is perhaps not easily conceivable in England
It also requires some explanation as to what could be meant by holding that a return is conclusive but the bona fides of the order can be challenged
The explanation seems to me to be that want of bona fides or malice in fact was placed on the same footing as fraud which nullifies and invalidates the most solemn proceedings
It may however be pointed out that in Greenes case supra it was not held that mala fides or any other invalidating fact could be proved during the emergency in habeas corpus proceedings
An explanation of an almost formal exception for a case of want of bona fides could be that the reservation of such a plea was meant only for such proceedings in which malice in fact could reasonably be gone into and adjudicated upon
The position before us however is very clear
Section 16A9 imposes a bar which cannot be overcome in Habeas Corpus proceedings
In addition a specific suspension or enforcement of the right of personal freedom against executive authorities places the presumption arising from a duly authenticated order of a legally authorised detaining officer on a higher footing than a merely ordinary rebuttable presumption for purposes of proceedings under Article 226 of the Constitution
These are as already indicated summary proceedings
I may point out here that the term mala fide is often very loosely used
Even in England the scope of malice is wide enough to include both malice in law and malice in fact
Lord Haldane in Shearer vs Shields1 said Between malice in fact  and malice in law  there is a broad distinction which is not peculiar to any system of jurisprudence
The person who inflicts a wrong or an injury upon any person in contravention of the law is not allowed 1 368 to say that he did so with an innocent mind
He is taken to know the law and can only act within the law
He may therefore be guilty of malice in law  although
so far as the state of his mind was concerned he acted ignorantly and in that sense innocently Malice in fact  is a different thing
It means an actual malicious intention on the part of the Person who has done the wrongful act
Now applying the broad concepts of malice in law  as stated t above it has often been argued before us in cases of preventive detention that the burden is upon the executive authorities of proving the strict legality and correctness of every step in the procedure adopt ed in a case of deprivation of personal liberty
To ask the executive authorities to satisfy such a requirements in accordance with what has been called the principle in Eshuqbayi Eleko s case supra would be in my opinion to nullify the effect of the suspension of the enforceability of the procedural protection to the right of personal freedom
To do so is really to make the Presidential order under Article 3591 of the Constitution ineffective
Therefore no question of malice in law  can arise in Habeas Corpus proceedings when such a protection is suspended
As regards the issue of malice in fact as I have already pointed out it cannot be tried at all in a Habeas Corpus proceeding although it may be possible to try it in a regular suit the object of which is not be enforce a right to personal freedom but only to obtain damages for a wrong done which is not protected by the terms of Section 16 of the Act
The possibility of such a suit should be another deterrent against dishonest use of these powers by detaining officers
Mr Mayakrishnan learned Counsel for one of the detenus con tended that state of emergency resulting from the Presidential order of 27th June 1975 cannot be equated with a situation in which Martial Law has been proclaimed
The argument seems to be that if the jurisdiction of Courts to enforce the right ht to personal freedom is affected the resulting position would be no different from that which prevails when Martial Law is declared
There is no provision in our Constitution for a declaration of Martial Law
Nevertheless Article 34 of the Constitution recognises the possibility of Martial Law in this country
It provided 34 notwithstanding anything in the foregoing provisions of this Part Parliament may by law indemnify any person in the service of the Union or of a State or any other t person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed punishment inflicted forfeiture ordered or other act done under martial law in such area  As there is no separate indication in the Constitution of conditions in which Martial Law could be proclaimed it could be urged that a Presidential order under Article 3591 has a similar effect and 369 was intended to provide for situations in which Martial Law may have to be declared in any part of the country
But a Presidential order under Article 3391 of the Constitution would ordinarily have a wider range and effect throughout the country than the existence of Martial Law in any particular part of the country
The Presidential Proclamations are meant generally to cover the country as a whole
Martial Law is generalIy of a locally restricted application
Another difference is that conditions in which what is called Martial Law may prevail result in taking over by Military Courts of powers even to try offences and the ordinary or civil Courts will not interfere with this special jurisdiction under extraordinary conditions
Such a taking over by Military Courts is certainly outside the provisions of Article 3591 of the Constitution taken by itself
lt could perhaps fall under Presidential powers under Articles 53 and 73 read with Article 355
Article 532 lays down 53 2 Without prejudice to the generality of the foregoing provision the supreme command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law
And Article 355 provides 355
It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution
 A similarity in results however between Martial Law and conditions resulting from a Presidential order under Article 3591 is that if no provision is made by an Act of Indemnity the civil liabilities of military or civil officers acting mala fide and outside the law are not removed ipso facto by either Martial Law or the Proclamation of Emergency
In Halsbury s Laws of England 4th Edn vol
8 para 982 page 625 an explanation of Martial Law as it is known in British Constitutional Law is given as follows The Crown may not issue commissions in time of peace to try civilians by martial law but when a state of actual war or of insurrection riot or rebellion amounting to war exists the Crown and its officers may use the amount of force necessary in the circumstances to restore order
This use or force is sometimes termed martial law
When once a state of actual war exists the civil courts have no authority to call in question the actions of the military authorities but it is for the civil courts to decide if their jurisdiction is invoked whether a state of war exists which justifies the application of martial law
The powers
such as they are of the military authorities cease and those of the civil courts resumed ipso facto with the termination of the State of war
and in the absence of an act of Indemnity the civil courts may inquire into the 24 833SCI 76 370 legality of anything done during the state of war
Even if there is an Act of Indemnity couched in the usual terms malicious acts will not be protected
Whether this power of using extraordinary measures is really a prerogative of the Crow or whether it is merely an example of the common law right and duty of all ruler and subject alike to use the amount of force necessary to suppress disorder is not quite free from doubt
it is however clear that so called military courts set up under martial law are not really courts at all and So an order of prohibition will not issue to rest rain them
Probably the correct view to take of  martial law itself is that it is no law at all
It is not at all necessary for the purposes of the decision of cases before us to determine how proclamations of emergency are related to the more drastic conditions in which Martial Law if it is law at all may come into existence due to the very necessities of a situation
It is evident that the emergency provisions of our Constitution arc very comprehensive
They are intended not merely to deal with situations when actual out break of hostilities with another country try has taken place and a war is going on but also when the country s peace progress security and independence are threatened by dangers either internal or external or both
Whether there is a grave emergency falling within Article 3521 is a matter entirely for the President to determine
Attempts were made by some learned Counsel to paint very gloomy pictures of possible consequences if this Court held that no relief was open to petitioners against deprivation of their personal freedoms by executive officers in an emergency of indefinite duration when a number of cases of serious misuse of their powers by the detaining officers were said to be in evidence
I do not think that it is either responsible advocacy or the performance of any patriotic or public duty to suggest that powers of preventive detention are being misused in the current emergency when our attention could not be drawn to the allegations in a single case even by way of illustration of the alleged misuse instead of drawing upon one s own imagination to conjure up phantoms
In fact I asked some learned Counsel to indicate the alleged facts of any particular case before us to enable us to appreciate how the power of preventive detention had been misused
Mostly the answers given were that the facts of the cases were not before us at this stage which is true
But it is significant that no case of alleged malice in fact could be even brought to our notice
It seems to me that Courts can safely act on the presumption that powers of preventive detention are not being abused
The theory that preventive detention serves a psycho therapeutic purpose may not be correct
But the Constitutional duty of every Govt
faced with threats of wide spread disorder and chaos to meet it with appropriate steps cannot be denied
And if one can refer to a matter of common knowledge appearing from newspaper reports a number of detenus arrested last year have already been released
This shows that whole situation is periodically reviewed
Furthermore we under 371 stand that the care and concern bestowed by the State authorities upon the welfare of detenus who are well housed well fed and well treated
is almost maternal
Even parents have to take appropriate preventive action against those children who May threaten to burn down the house they live in
If there are under our Constitution some supreme obligations or overriding powers or duties vested in superior Court s as learned Counsel for the detenus seemed to be contending for to enforce the claims of constitutionality quite apart from the suspended powers and duties of Courts to enforce fundamental rights I am sure that the current emergency justified not only by the rapid improvement
due to it in the seriously dislocated national economy and discipline but also by the rapid dangers of tomorrow apparent to those who have the eyes to see them averted by it could not possibly provide the occasion for the discharge of such obligations towards the nation or the exercise of such powers if any in the Courts set up by the Constitution
Where there are such great obligations and powers they must always be guided by the principle already indicated Sauls Populi Est Suprema Lex
Indeed as I understand even the majority view in Golaknaths case supra it was that despite the invalidity of constitutional amendments of provisions containing fundamental 1 rights to give effect to the view would be contrary to this principle
The case for the detenus before us however fails on preliminary hurdles
Despite strenuous efforts their learned Counsel were quite unable to show any constitutional invalidity directly or indirectly in any of the measures taken whether legislative or executive by or on behalf of the State
The real question for determination by us relates only to the meaning and effect of the Constitutional and statutory provisions indicated above which are applicable during the current Emergency
A large number of other questions including even some quite remotely connected with the real question involved were permitted Court to be argued because of the great concern and anxiety of this Court when problems relating to personal liberty are raised
On the interpretation of the relevant provisions adopted by me the validity of detention orders purporting to be passed under the Act cannot
be challenged in Habeas Corpus proceedings
Judicial proceedings in criminal Courts not meant for the enforcement of fundamental rights are not either at the initial or appellate or revisional stages covered by the Presidential order of 1975
Habeas Corpus petitions are not maintainable in such cases on another ground
It is that the prisoner is deemed to be in proper custody under orders of a Court
My answer to the two questions set out in the beginning of this judgment which I compressed into one is as follows A prima facie valid detention order that is to say one duly authenticated and passed by an officer authorised to make it recording purported satisfaction to detain the petitioner under the maintenance of Internal Security Act which is operative either before or after its confirmation by the Government is a complete answer to a petition for a writ of Habeas Corpus
Once such an order is shown 372 to exist in response to a notice for a writ of Habeas Corpus the High Court cannot inquire into its validity or vires on the ground of either mala fides of any kind or of non compliance with any provision of the in Habeas Corpus proceedings
The preliminary objection of the State must be accepted in such a case
The result is that the appeals before us are allowed and the judgment and order of the High Court in each case is set aside
The High Court concerned will itself now pass an order on each petition in accordance with law as laid down by this Court and the provisions of Article 3591 of the Constitution
CHANDRACHUD J
During the last few years many questions of far reaching constitutional importance have engaged the attention of this Court but these appeals perhaps present problems of the gravest magnitude
They involve an adjustment between two conflicting considerations the liberty of the individual on one hand and exigencies of the State on the other
This balancing of the most precious of human freedoms the liberty of the subject as against the most imperative of the State s obligations the security of the State gives rise to multi dimensional problems quite beyond the scope and compass of each right considered separately and in isolation
Can the freedom of the individual be subordinated to the exigencies of the State and if so to what extent  The Constitution concedes to the Executive the power of Preventive detention but in the name of national security can that jurisdiction of suspicion be so exercised as to reduce the guarantee of personal liberty to a mere husk  Detention without trial is a serious inroad on personal freedom but it bears the sanction of our Constitution
The Constituent Assembly composed of politicians
statesmen lawyers and social workers who had attained a high status in their respective specialities and many of whom had experienced the travails of incarceration owing solely to their political beliefs resolved to put Article 22 clauses 3 to 7 into the Construction
may be as a necessary evil
But does that mean that more as a rule than as an exception any person can be detained without disclosing the grounds of detention to him or to the Court which may be called upon to try his Habeas Corpus petition  And can such grounds and the information on which the grounds are based be deemed by a rule of evidence to relate to the affairs of the State therefore confidential  and therefore privileged  Blind unquestioning obedience does not flourish on English soil said Lord Simonds in Christie vs Leachinsky1
Will it flourish one Indian soil  These broadly are the sensitive questions for decision and importantly they arise in the wake of Proclamations of Emergency issued by the President
Part XVIII of the Constitution called Emergency provisions consists of Articles 352 to 360
Article 3521 provides that if the President is satisfied that a grave emergency exists whereby the secu 1  591
373 rity of India or of any part of the territory thereof is threatened whether by war or external aggression or internal disturbance he may by Proclamation make a declaration to that effect
A Proclamation issued under clause 1 is required by clause 2 b to be laid before each House of Parliament and by reason of clause 2 c it ceases to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament
By clause 3 of Article 352 a Proclamation of Emergency may be made before the actual occurrence of war or of external aggression or internal disturbance if the President is satisfied that there is imminent danger thereof
Clause 5 a makes the satisfaction of the President under clauses 1 and 3 final conclusive and non justiciable
By clause 5 b neither the Supreme Court nor any other court has jurisdiction subject to the provisions of clause 2 to entertain any question on any ground regarding the validity of a proclamation issued under clause 1 or the continued operation thereof
Article 358 provides that While a Proclamation of emergency is in operation nothing in Article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take but any law so made shall to the extent of the incompetency cease to have effect as soon as the Proclamation ceases to operate except as respects things done or omitted to be done before the law so ceases to have effect
 Article 3591 empowers the President while a Proclamation of emergency is in operation to declare by order that  the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order
 Clause 1A which was inserted retrospectively in Article 359 by section 7 of the Thirty eighth Amendment Act 1975 provides While an order made under clause 1 mentioning any of the rights conferred by Part III is in operation nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take but any law so made shall to the extent of the incompetency cease to have effect as soon as the order aforesaid ceases to operate except as respects things done or omitted to be done before the law so ceases to have effect 374 Clause 3 of Article 359 requires that every order made under clause 1 shall as soon as may be after it is made be laid before each house of Parliament
Article 352 was resorted to for the first time when hostilities broke out with China
On October 26 1962 the President issued a Proclamation declaring that a grave emergency existed whereby the security of India was threatened by external aggression
This proclamation was immediately followed by the defence of India ordinance 4 of 1962 which was later replaced by the Defence of India Act 1962
on November3 1962 the President issued an order under Article 3591 of the Constitution which was later amended by an order dated November I 1 1962 stating that the right of any person to move any court for the enforcement of the rights conferred by Article 14 Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the proclamation of emergency issued under clause 1 of Article 352 thereof on the 26th October 1962 is in force if such person has been deprived of any such rights under the Defence of India ordinance 1962 4 of 1962 or any rule or order made thereunderEmphasis supplied
Article 14 was added to the order of November 3 1962 by the amendment dated November 11 1962
The emergency declared on October 26 1962 was revoked by a Proclamation dated January 10 1968 issued under Article 3522a of the Constitution
The Defence of India Act 1962 was to remain in force during the period of operation of the Proclamation of Emergency issued on October 26 1962 and for a period of six months thereafter 
The Act of 1962 expired on July 10 1968
The maintenance of Internal Security Act 26 of 1971 MISA was brought into force on July 2 1971 in the shadow of hostilities with Pakistan
Section 31 of that Act provides as follows 31 The Central Government or the State Government may a if satisfied with respect to any person including a foreigner that with a view to preventing him from acting in any manner prejudicial to 1 the defence of India the relations of India with foreign powers or the security of India or ii the security of the State or the maintenance of public order or iiithe maintenance of supplies and services essential ll to the community or b if satisfied with respect to any foreigner that with a view 2to regulating his continued presence in India or 375 With a view to making arrangements for his expulsion from India
It is necessary so to do make an order directing that such person be detained
 Section 8 of the Act requires that the grounds on which the order of detention is made shall be communicated to the detenu within a certain period but that the authority making the order may not disclose facts which it considers to be against the public interest to disclose Consequent on the Pakistani aggression the President issued a Proclamation of Emergency on December 3 1971 on the ground that the security of India was threatened by external aggression
By on
Order dated December S 1971 issued under Article 3591 of the Constitution the right of foreigners  to move any court for the enforcement of rights conferred by Articles 14 21 and 22 was suspended
In September 1974 the MISA was amended by ordinance 11 of 1974 to include sub section c in section 31 by which the right to detain was given as against smugglers and offenders under the Foreign Exchange Regulation Act 1947
On November 16 1974 the President issued a Declaration under Article 3591 suspending the right of persons detained under section 3 1 c of the MISA lo move for enforcement of tile rights conferred by Article 14 Article 21 and clauses 4 5 6 and 7 of Article 22 of the Constitution On June 25 1975 the President issued a Proclamation under Article 3521 declaring that a grave emergency existed whereby the security of India was threatened by internal disturbance
On June 27 1975 The President issued an order under Article 3591 which reads as follows GSR 361 E In exercise of powers conferred by clause 1 of Article 359 of the Constitution the President hereby declares that the right of any person including a foreigner to move any court for the enforcement of the rights conferred by Article 14 Article 21 and Article 22 of the Constitution and all proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the proclamation of emergency made under clause 1 of Article 352 of the Constitution on the 3rd December 1971 and on the 25th of June 1975 are both in force
The order shall extend to the whole of the territory of India
This order shall be in addition to and not in derogation of any order made before the date cf this order under Clause 1 of Article 359 of the Constitution Various persons detained under section 31 of the MISA filed petitions in different High Courts for the issue of the writ of Habeas Groups
When those petitions can
up for hearing the Government 376 raised a preliminary objection to their maintainability on the ground that in asking for release by the issuance of a writ of habeas corpus the detenus were in substance claiming that they had been deprived of their personal liberty in violation of the procedure established by law which plea was available to them under Article 21 f he Constitution only
The right to move for enforcement of the right conferred by that Article having been suspended by the Presidential order dated June 27 1975 the petitions according to the Government were liable to be dismissed at the threshold
The preliminary objection has been rejected for one reason or another by the High Courts of Allahabad Bombay Delhi Karnataka Madhya Pradesh Punjab and Rajasthan
Broadly these High Courts have taken the view that despite the Presidential order it is open to the detenus to challenge their detention on the ground that it is ultra vires as for example
by showing that the order on the face of it is passed by an authority not empowered to pass it or it is in excess of the power delegated to the authority or that the power has been exercised in breach 0 the conditions prescribed in that behalf by the Act under which the order is passed or that the order is not in strict conformity with the provision of the Act
Some of these High Courts have further held that the detenus can attack the order of detention on the grounded that it is malafide as for example by showing that the detaining authority did not apply its mind to the relevant considerations or that the authority was influenced by irrelevant considerations or that the authority was actuated by improper motives
Being aggrieved by the finding recorded by these High Courts on the preliminary point the State Governments and the Government of India have filed these appeals some under certificates granted by the High Courts and some by special leave granted by this Court
The High Courts of Andhra Pradesh Kerala and Madras have upheld the preliminary objection
During the pendency of these appeals and while the hearing was in Progress the President issued an order dated January 8 1976 under Article 3591 declaring that the right to move any court for the enforcement of the rights conferred by Article 19 and the proceedings pending in any court for the enforcement of those rights shall suspended during the operation of the Proclamations of Emergency dated December 3 1971 and June 25 1975
On behalf of the appellants the appeals were argued by the learned Attorney General and the learned Additional Solicitor General
The learned Advocates General of various States argued in support of their contentions
A string of counsel appeared on behalf of the respondents amongst them being Shri Shanti Bhushan Shri V M Tarkunde Shri R B Jethmalani Shri section J Sorabji Shri A B Dewan Shri C K Daphtary Dr N M Ghatate Shri G C Dwivedi
Shri Santokh Singh Shri Sharad Manohar Shri Daniel Latifi and Shri Mayakrishnan
The learned Advocate General of Gujarat generally supported their submissions
The learned Attorney General contended that Article 21 is the sole repository of the right to life and personal liberty and if the right to move any court for the enforcement of that right is suspended by 377 the Presidential order issued under Article 3591 the detenus have no locus standi to file the writ petitions and therefore these petitions must be dismissed without any further inquiry into the relevance of the material on which the grounds of detention are based or the relevance of the grounds or the bona fides of the detaining authority
If the MISA permits the non disclosure of grounds and indeed prevents their disclosure there is no question of inquiring into the reasons or grounds of detention and courts must accept at its face value the subjective satisfaction of the detaining authority has recorded in the order of detention
There is no half way house asserted the Attorney General
But not inconsistently with the basic submission that the detenus have no locus standi to file the petitions for habeas corpus he conceded that the court may grant relief if the detention order is on the face of it bad as for example if it is passed by a person not authorised to pass it or if it is passed for a purpose outside those mentioned in section 31 of the MISA or if it does not bear any signature at all
The learned Additional Solicitor General indicated during the course of his argument the limits of judicial review in the event of the court rejecting the main submission of the Attorney General
He contended that section 16A9 of MISA contains but a rule of evidence and is therefore not open to attack on the ground that it encroaches upon the jurisdiction of the High Court under Article 226 of the Constitution
Since section 16A9 is not unconstitutional no court can ask for the prosecution of the file relating to a detente or ask for the disclosure of the grounds of detention
If such disclosure is not made no adverse inference can be raised by holding that by reason of non disclosure the detenu case stands unrebutted
The learned Additional Solicitor General contended that there was no warrant for reading down section 16A9 so as to permit disclosure to the court to the exclusion of the petition and if any inquiry is permissible at all into a habeas corpus petition the inquiry must be limited to the following points 1 Whether the order is made in exercise or purported exercise of power conferred by a law ii If such law was pre emergency law is it a valid law iii whether the authority which passed the order is duly empowered to do so by the law
iv Whether the person sought to be detained is the person named in the order of detention v Whether the stated purpose of the detention is one that comes within the law vi Have the procedural safeguards enacted by the law been followed and vii Where grounds are furnished ie when 16 A does not apply do such grounds ex facie justify the apprehension of the detaining authority or is it vitiated by a logical non sequitur  Such an inquiry according to the learned counsel can never extend to an objective appraisal of the material and the information for the purpose of testing the validity of the subjective satisfaction of the detaining authority
The arguments advanced on behalf of the respondents covered a evidence but they may be summarized thus H 1
The object of Article 3591 and the effect of an order issued under it is to remove restraints against the 378 Legislature so that during the emergency it is free to make laws in violation of the fundamental rights mentioned in the Presidential order
Under a Constitution which divides State functions into Executive Legislative and Judicial the executive functions must be discharged consistently with the valid laws passed by the Legislature and the orders and decrees passed by the Judiciary
The suspension of the right to enforce fundamental rights cannot confer any right on the Executive to flout the law by which it is bound as much in times of emergency as in times of peace
Since there is a valid law regulating preventive detention namely the MISA every order of detention passed by the Executive must confconfirm to the conditions prescribed by that law
Article 3591 may remove fetters imposed by Part Ill but it cannot remove those arising from the principle or rule of law or from The principle of the limited power of the Executive under the system of checks and balances based on separation of powers 
The obligation cast on the Executive to act in accordance with the law does not arise from any particular Article of the Constitution but from the inherent com compulsion arising from the principle of rule of law which is a central feature our constitutional system and is a basic feature of the Constitution
The suspension of the right to enforce Article 21 does not automatically entail the suspension of the rule of law
Even during emergency the rule of law is not and cannot be suspended
The Presidential order under Article 3591may bar the enforcement of fundamental rights mentioned in the order by a petition under Article 32 before the Supreme Court
But the Presidential order cannot bar the enforcement of rights other than fundamental rights by a petition filed under Article 226 in the High Court
Common law rights as well as statutory rights to personal liberty can be enforced through writ petitions filed under Article 226 despite the Presidential order issued under Article 3591
Similarly contractual rights natural rights and non fundamental constitutional rights like those under Articles 256 265 and 3613 of the Constitution can be enforced under Article 226
Article 226 empowers the High Courts to issue writs and directions for the enforcement of fundamental rights and for any other purpose
The essence of the inquiry in a Habeas Corpus petition 9 whether the detention is justified by law or is ultra 379 vires the law
Such an inquiry is not shut out by the suspension of the right to enforce fundamental rights
If the Presidential order is construed as a bar to the maintainability of the writ petitions under Article 226 of the Constitution that Article shall have bee amended without a proper and valid constitutional amendment
Article 21 of the Constitution is not the sole repository of the right to life or personal liberty
There is no authority for the proposition that on the conferment of fundamental rights by Part III the corresponding pre existing rights merged with the fundamental rights and that with the suspension of fundamental rights the c corresponding pre existing rights also got suspended
Suspension of the right to enforce Article 21 cannot put a citizen in a worse position than in the pre constitution period
The pre Constitution right of liberty was a right in rem and was totally dissimilar from the one created by Article 21 The pre constitution rights was merely a right not to be detained save under the authority of law
Civil liberty or personal liberty is not a conglomeration of positive rights
It is a negative concept and constitutes an area of free action because no law exists curtailing it or authorising its curtailment
Section 16A9 of the MISA is unconstitutional as it encroaches upon the High Courts  powers under Article 226 of the Constitution by creating a presumption that the grounds on which the order of detention is made and any information or materials on which the grounds are based shall be treated as confidential and shall be deemed to refer to matters of State so that it will be against the public interest to disclose the same
Section 18 of MISA as amended by Act 39 of 1975 which came into force with effect from June 25 1975 cannot affect the maintainability of the present petitions which were filed before the Amendment
The dismissal of writ petitions on the around that such petitions are barred by reason of the Presidential order issued under Article 3591 would necessarily mean that during the emergency no person has any right to life or personal liberty and 15
If the detenus are denied any forum for the redress of their grievances it would be open to the Executive to whip the detenus to start them to keep them in solitary confinement and even to shoot them which would 380 be a startling state of affairs in a country governed by a written Constitution having in it a chapter on Fundamental Rights
The Presidential order cannot permit the reduction of Indian citizens into slaves
The validity of the 38th and 39th Constitution amendments Acts was not challenged by the respondents
The key to these rival contentions can be found in the emergency provisions contained in Chapter XVIII of the Constitution
The Presidential declaration of emergency is made final conclusive and non justiciable by clause 5 of Article 352 which was introduced by the 38th Amendment retrospectively
But apart from the fact that the Constitution itself has given Finality to declarations of emergency made by the President it is difficult to see how a Court of law can look at the declaration of emergency with any mental reservations
The facts and circumstances leading to the declaration of emergency are and can only be known to the Executive particularly when an emergency can be declared as provided in Article 3523 before the actual occurrence of war external aggression or internal disturbance so long as the President is satisfied that there is imminent danger thereof
The actual occurrence of war or external aggression or internal disturbance can be there for anyone to see but the imminent danger of these occurrences depends at any given moment On the perception and evaluation of the national or international situation regarding which the court of law can neither have full and truthful information nor the means to such information
Judge and Jury alike may form their personal assessment of a political situation but whether the emergency should be declared or not is a matter of high State policy and questions of policy are impossible to examine in courts OF law
The High Courts whose judgements are under appeal have with the greatest respect failed to perceive this limitation on the power of judicial review though in fairness to them it must be stated that none of them has held that the declaration of emergency is open to judicial scrutiny
But at the back of one s mind is the facile distrust of executive declarations which recite threat to the security of the country particularly by internal disturbance
The mind then weaves cobwebs of suspicion and the Judge without the means to knowledge of full facts covertly weighs the pros and cons of the political situation and substitutes his personal opinion for the assessment of the Executive which by proximity and study is better placed to decide whether the security of the country is threatened by an imminent danger of internal disturbance
A frank and unreserved acceptance of the Proclamation of emergency even in the teeth of one s own pre disposition is conducive to a more realistic appraisal of the emergency provisions
A declaration of emergency produces far reaching constituencies
While it is in operation the executive power OF the Union by reason of Article 353 extends the giving of directions to any State as to the manner in which the executive power thereof is to be exercised
Secondly the power of Parliament to make laws with respect to any matter includes during emergency the power to make laws conferring powers and imposing duties or authorising the conferring of powers 381 and imposition of duties upon the Union or Officers and authorities of the Union as respects that matter notwithstanding that the matter is not enumerated in the Union List
Article 354 confers power on the President direct that the provisions of Articles 268 to 279 which deal with distribution of revenues between the Union and the States shall have effect subject to such exceptions or modifications as the President thinks fit but not extending beyond the expiration of the financial year in which the proclamation ceases to operate
A Proclamation of emergency automatically curtails the operation of Article 19
As provided in Article 358 while the Proclamation is in operation nothing in Article 19 shall restrict the power of the State to make any law or to take any executive action which the Stale would but for the provisions contained in Part III be competent to make or to take
Any law so made ceases to have effect to the extent of the incompetency as soon as the proclamation ceases to operate
Then comes Article 359 which is directly in point
It authorises the President to issue an order declaring the suspension of the right to move any court for the enforcement of such of the rights conferred by Part III as the President may specify in his order
Clause 1A which was introduced in Article 359 by tile 38th Amendment Act retrospectively has inter alia transported the provisions of Article 358 into Article 359 during the operation of an order made by the President under Article 3591
The orders issued by the President in the instant case under Article 3591 provide for the suspension of the right to move any court for the enforcement of the rights conferred by Articles 14 19 21 and clauses 4 to 7 of Article 22
Article 21 of the Constitution runs thus No person shall be deprived of his life or person liberty except according to procedure established by law
 The principal question for decision in these appeals is whether notwithstanding the fact that the order issued by the President under Article 3591 suspends the right of every person to move any court for the enforcement of the right to personal liberty conferred by Article 21 it is open to a person detained under a law of preventive detention like the MISA to ask for his release by filing a petition in the High Court under Article 226 of the Constitution for the writ of habeas corpus
The writ of habeas corpus is described by May in his Constitutional History of England1 as the first security of civil liberty
Julius Stone in Social Dimensions of Law and Justice2 calls it a picturesque writ with an extraordinary scope and flexibility of application
The Latin term habeas corpus means you must have the body  and a writ for securing the liberty of the person was called habeas corpus ad subjiciendum
The writ affords an effective means of immediate release from an unlawful or unjustifiable detention whether in prison or in private custody
The writ is of highest constitutional importance being a remedy available to the lowliest subject against the most powerful government
1 Ed 1912 Vol
II p 130 Chapter XI
2 Ed 1966
p 203
382 The liberty of the individual is the most cherished of human freedoms and even in face of the gravest emergencies Judges have played a historic role in guarding that freedom with real and jealousy though within the bounds the farthest bounds of constitutional power
The world wide interest generated by the lively debate in Liversidge vs Sir John Anderson and Anr1 has still not abated
And repeated citation has not blunted the edge of Lord Atkin s classic dissent where he said I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executing minded than the executive
In this country amid the clash of arms the laws are not silent
They may be changed but they speak the same language in war as in peace In this case I have listened to arguments which might have been addressed acceptably to the Court of King s Bench in the time of Charles I Sir William Blackstone in his Commentaries on the Laws of England 2 says that the preservation of personal liberty is of great importance to the public because if it were left in the power of ever the highest person to imprison anyone arbitrarily there would soon be an end of all other rights and immunities
To bereave a man of life or by violence to confiscate his estate without accusation or trial would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole kingdom but confinement of the person by secretly hurrying him to gaol where his sufferings are unknown or forgotten is a less public a less striking and therefore a more dangerous engine of arbitrary government The learned commentator goes on to add And yet sometimes when the state is in real danger even this may be a necessary measure
But the happiness of our Constitution is that it is not left to the executive power to determine when the danger of the state is so great as to render this measure expedient for it is the parliament only or legislative power that whenever it sees proper can authorize the Crown by suspending the Habeas Corpus Act for a short and limited time to imprison suspected persons without giving any reason for so doing   May in his Constitutional History of England3 says that during the course of the last century every institution was popularise and every public liberty was extended but long before that period English men had enjoyed personal liberty as their birthright
It was more prized and more jealously guarded than and other civil right
The Star Chamber had fallen the power of arbitrary imprisonment had been wrested from the Crown and Privy Council liberty had been guarded by the Habeas Corpus Act  
Speaking of the writ of habeas corpus May says that it protects the subject from unfounded suspicions from the aggressions of power and from abuses in the 1   Lord Atkin p 244
2 4th Ed
Vol I pp
105 to 107
3 Ed 1912 p 124 130
383 administration or justice
Yet this protective law which gives every man security and confidence in times of tranquillity has been suspended again and again in periods of public danger or apprehension
Rarely however has this been suffered without jealousy hesitation and remonstrance and whenever the perils of the State have been held sufficient to warrant this sacrifice of personal liberty no Minister or magistrate has been suffered to tamper with the law at his discretion
Parliament alone convinced of the exigency of each occasion has suspended for a time the rights of individuals in the interests of the State
 Dicey in his Introduction to the Study of the Law of the Constitution1 says that During periods of political excitement the power or duty of the courts to issue a writ of habeas corpus and thereby compel the speedy trial or release of persons charged with crime has been found an inconvenient or dangerous Limitation on the authority of the executive government
Hence has arisen the occasion for situates which are popularly called Habeas Corpus Suspension Acts ECS Wade and Godfrey Phillips observe in their Constitutional Law2 that in times of grave national emergency normal constitutional principles must if necessary give way of the overriding need to deal with the emergency
According to the learned authors It has always been recognised that times of grave national emergency demand the grant of special powers to the Executive
At such times arbitrary arrest and imprisonment may be legalised by Act of Parliament
Modern war demands the abandonment of personal liberty in that the duty of compulsory national service necessarily takes away for the time being the right of the individual to choose his occupation  The learned authors refer to the English practice of passing Habeas Corpus Suspension Acts in times of danger to the State
These Acts prevented the use of habeas corpus and as soon as the period of suspension was over anyone who for the time being had been denied the assistance of the writ could bring an action for false imprisonment
Suspension did not legalise illegal arrest it merely suspended a particular remedy and therefore a practice grew under which at the close of the period of suspension an Indemnity Act would be passed in order to protect officials from the consequences or any illegal acts which they might have committed under cover of the suspension of the prerogative writ
Thomas M Cooley says in the General Principles of Constitutional Law3 in the USA that though the right to H 1 10th Edition
2 8th Ed Chapter 48 717 718
3 4th Ed Chapter XXXIV
360 361
384 the writ of habeas corpus by which the liberty of the citizens is protected against arbitrary arrests is not expressly declared in the American Constitution it is recognised in Article I section 9 cl 2 which says that The privileges of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it
 It would appear that in America something similar lo the passing of Acts of Indemnity has been done by making provisions in State Constitutions
Thus though the liberty of the individual is a highly prized free dom and though the writ of habeas corpus is a powerful weapon by which a common man can secure his liberty there are times in the history of a Nation when the liberty of the individual is required to be subordinated to the larger interests of the State
In times of grave disorders brought about by external aggression or internal disturbance the stability of political institutions becomes a sine qua non of the guarantee of all other rights and interests
To assert an absolute exemption from imprisonment in all cases is inconsistent with every idea of law and political society and in the end would destroy all civil liberty by rendering its protection impossible1 The clear and present danger test evoked by Justice Holmes in Schenck vs United Slates  may well be extended to cases like the present where there is a threat of external aggression
On the heels of American entry into the first World War on June 15 1917 the Congress adopted the Espionage Act creating three new offences which went beyond the prohibition of spying and sabotage
It prescribed punishment of a fine of 10000 dollars and 20 years imprisonment
A year later the Act was amended by what is popularly called the Sedition Act which is rendered it illegal even to say anything to obstruct the sale of United States bonds or to say anything contemptuous regarding the form of Government of the United States
A unanimous court upheld Schenck s conviction under the Act for propagating that compulsory service in the Armed Forces was a monstrous wrong against humanity in the interest of Wall Street s chosen few
The judgment was delivered in 1919 when the war was already over and Holmes J held that things that can be said in times of peace will not be endured during times of war and no court will regard them as protected by any constitutional right
The emergency provisions were incorporated into our Constitution on the strength of experience gained in England and USA But the object of Article 359 is to confer wider power on the President than the power to merely suspend the right to file a petition for the writ if habeas corpus
Article 359 aims at empowering the President to suspend the right to enforce all or any of the fundamental rights conferred by Part III
It is in order to achieve that object that Article 1 Blackston s Commentaries on the Laws of England 4th Ed
III pp125 126
2  1919
385 359 does not provide that the President may declare that the remedy by way of  habeas corpus shall be suspended during emergency
Personal liberty is but one of the fundamental rights conferred by Part III and the writ of habeas corpus is peculiar to the enforcement of the right to personal liberty
lt must follow that the suspension of the right to enforce the right conferred by Article 21 means and implies the suspension of the right to file a habeas corpus petition or to take any other proceeding to enforce the right to personal liberty conferred by Article 21
But then it is urged on behalf of the respondents that by their writ petitions respondents did not seek to enforce the right to personal liberty conferred by Article 21 or possessed by them apart from it
They were really seeking a declaration that the order of detention was illegal for the reason that it did not comply with the requirements of the law under which it was passed
In support of this argument reliance is placed upon a passage in HWR Wade s Administrative Law1 to the effect that habeas corpus is a remedy not only for the enforcement of the right to personal liberty but is also a remedy for the enforcement of the principle of ultra vires
This argument lacks substance and overlooks the realities of the situation
lt ay be open to a detenu by filing a petition for the writ of habeas corpus to contend that order under which he is detailed is ultra vires of the statute to which the order owes its existence
But one must have regard to the substance of the matter and not to mere from the real and substantial relief which the detention for by a writ of habeas corpus is that he should be freed from detention and the reason for the relief is that the order of detention is ultra vires
It is clear apart from the Form in which the relief may or may not be clothed that the respondents through their writ petitions were moving the High Courts for enforcing their right to personal liberty
The history of the writ of habeas corpus which is succinctly narrated in the late Mr M C Setalvad s The Common Law in India 1 shows that the writ of habeas corpus which was in its inception a purely procedural writ gradually developed into a constitutional remedy furnishing a most powerful safeguard for individual freedom
Mr Setalvad quotes that the writ has been described as the key that unlocks the door to freedom
Respondents were surely not interested in obtaining an academic declaration regarding the ultra vires  character of their detention
They wanted the door to freedom to be opened by the key of the habeas corpus writ
Equally untenable is the contention that article 226 which occurs in Chapter V Part VI of the Constitution is an entrenched provision and therefore under Article 368 no amendment can be made to Article 226 without ratification by the Legislatures of not less than one half of the States
It is true that Article 220 is an entrenched provision which cannot suffer an amendment except by following the procedure prescribed by the proviso to Article 368 2
But the Presidential order is issued under the Constitution itself and if its true construction produces a certain result it cannot be said that some 1 3rd Ed pp 127 128 2 Pages 37 41 Ed 1960 Hamlyn Lectures 27 833 SCI76 386 other Article of the Constitution stands thereby amended
Article 3591 provides for the passing of an order by the President declaring that the right to move for the enforcing of fundamental rights mentioned in the order shall be suspended
That may in effect affect the jurisdiction of the High Courts to entertain a petition for the issuance of the writ of habeas corpus
But that does not bring about any amendment of Article 226 within the meaning of Article 368 which speaks of amendments to the Constitution by the Parliament in the exercise of its constitutional power
Article 226 and Article 3591 are parts of the same fundamental instrument and a certain interpretation of one of these Articles cannot amount to an amendment of the other
It is also not correct to say that any particular interpretation of Article 3591 will mean the abolition of the jurisdiction and power of the Supreme Court under Article 32 and of the High Courts under Article 226 of the Constitution
The true implication of the Presidential order is to take away the right of any person to move any court for the enforcement of the rights mentioned in the order
In strict legal theory the jurisdiction and powers of the Supreme Court and the High Courts remain the same as before since the Presidential order merely takes away the locus standi of a person to move these Courts for the enforcement of certain fundamental rights during the operation of the Proclamation of Emergency
It is important to appreciate that the drive of Article 3591 is not against the courts but is against individuals the object of the Article being to deprive the individual concerned of his normal right to move The Supreme Court or the High Court for the enforcement of The fundamental rights conferred by Part III of the Constitution
In Sree Mohan Chowdhury vs The Chief Commissioner Union Territory of Tripura1 a Constitution Bench of this Court dealing with an order issued by the President on November 3 1962 under Article 3591 observed 
Unquestionably the Court s power to issue a writ in the nature of Habeas corpus has not been touched by the President s order but the petitioner s right to move this Court for a writ of that kind has been suspended by the order of the President passed under article 359 1 
The President s order does not suspend all the rights vested in citizen to move this Court but only his right to enforce the provisions of articles 21 and 22
Thus as a result of the President s order aforesaid the petitioner s right to Move this Court but not this Court s power under article 32 has been suspended during the operation of Emergency with the result that the petitioner by no locus standi to enforce his right if any during the Emergency According to the respondents the limited object of Article 3591 is to remove restrictions on the power of the legislature so that during the operation of the emergency it would be free to make laws in violation of the fundamental rights specified 11 the Presidential order
This argument loses sight of the distinction between the provisions or 1   451 387 article 358 and article 3591A on the one hand and of article 3591 on the other
article 358 of its own force removes the restrictions on the power of the Legislature to make laws inconsistent with article 19 and on the power of the executive to take action under a law which may thus violate article 19
Article 358 does not suspend any right which was available under article 19 to any person prior to the Proclamation of Emergency
Under article 3591 the President is empowered to suspend the right of an individual to move any court for the enforcement of the rights conferred by Part III as may be mentioned in the order
Consequent upon such order all proceedings pending in any court for the enforcement of the rights so mentioned remain suspended during the period that the Proclamation is in force or such shorter period as the order may specify
Article 359 1 is thus wider in scope than article 358
This distinction has an important bearing on the main point under consideration because it shows that it was not enough to provide that nothing in article 19 shall restrict the power of the State to make any law or to take any executive action which the State would but for the provisions contained in Part III be competent to make or take
In order to effectuate the purposes of emergency it was necessary further to provide that no person would have any right to move for the enforcement of his fundamental rights mentioned hl the Presidential order and that pending proceedings in that behalf shall remain suspended during the operation of the emergency
It seems elementary that a fundamental right can be enforced as much in regard to a law which takes away that right contrary to the provisions of the Constitution as against the Executive if it acts contrary to the provisions of a law or without the authority of  law
In view of he language of article 3591 and considering the distinction between it and the provisions of article 358 there is no justification for restricting the operation of article 358 1 as against laws made by the Legislature in violation of the fundamental rights
Reliance was placed by the respondents on the decisions of this Court in Sree Mohan Chowdhury vs The Chief Commissioner Union Territory of Tripura1 and Makhan Singh vs State of Punjab2 in support of their contention that article 3591 operates in the legislative and not in the executive field
These decisions do not support such a proposition
On the contrary it is clear from the to decisions that the effect of the Presidential order under article 3591 is to take away the locus standi of a person to move any court for the enforcement or his fundamental rights which are mentioned in the order
Neither of the two cases deals directly with the question G whether the operation of article 3591 is restricted to the legislative field but if at all the ratio of those cases may be logically extended to cover executive acts also
During times of emergency it is the Executive which commits encroachments on personal liberties and the object of article 3591 is to empower the President to suspend the right to move any court for the enforcement of a right to complain against the actions of the Executive no less than against the 1 2 1964 4 section C R 797
388 laws passed by The Legislature if either the one or the other contravenes any of the fundamental rights mentioned in the order
This position was controverted by the respondents from several angles
It was contended that in a Constitution which divides State functions into Executive
Legislative and Judicial
the executive functions must be discharged consistently with the laws passed by the Legislature and the orders and decrees passed by the judiciary
The suspension of the right to enforce fundamental rights cannot confer any privilege on the Executive to flout the law by which it is bound as much in times of emergency as in times of peace
Therefore the argument proceeds there being a valid law regulating preventive detention namely the MISA every order of detention passed by the Executive must conform to the conditions prescribed by that law
The current of thought underlying this argument was highlighted by a learned counsel for the respondents by saying that it is strange that in the face of a law passed by the Parliament which in passing the law must assume that it will be obeyed the Executive can flout the law with impunity by relying on the Presidential order issued under Article 3591
Yet another point of view presented on this aspect of the case was that permitting the Executive to defy and disobey the law made by the Legislature is tentamount to destroying one of the important basic features of the Constitution that the Executive is bound by the laws made by the Legislature
Finally it was urged that the Preamble to the Constitution speaks of a Sovereign Democratic Republic and therefore the Executives which is subordinate to the Legislature cannot act to the prejudice of the citizen save to the extent permitted by laws validly made by the Legislature which is the chosen representative of the people
In view of the true scope and object of Article 3591 which has already been dealt with above these arguments have to be rejected
In the first place it is difficult to appreciate the argument of basic features  because we are not concerned to pronounce upon tile validity of an amendment made to the Constitution by a parliamentary measures
We are concerned to understand the scope of Article 3591 and what it implies
That Article is as much a basic feature of the Constitution as any other and it would be inappropriate to hold that because in normal times the Constitution requires the Executive to obey the laws made by the Legislature therefore Article 3591 which is an emergency measure must be construed consistently with that position
The argument of basic feature is wrong for yet another reason that Article 3591 does not provide that the Executive is free to disobey the laws made by the Legislature
Al the cost of repetition it must be said that what Article 3591 achieves is merely the suspension of the right of an individual to move a court for the assertion of  his fundamental rights which have been mentioned in the Presidential order even if such rights are contravened either by the Legislature or by the Executive
To permit a challenge in a court of law to an order of detention which is an executive action on the ground that the order violates a fundamental right mentioned in the Presidential order is to permit the detenu to enforce a fundamental right during emergency in a manner 389 plainly contrary to Article 3591
The language of that Article it is admitted on all hands is clear and unambiguous
The constitutional consequences of a Proclamation of Emergency are grave and far reaching
Legislatures can during emergency make laws in violation of the seven freedom guaranteed by Article 19 the President has the power to suspend the right to move for the enforcement of all or any of the fundamental rights mentioned in the order issued under Article 3591 the Executive power of the Union extends during emergencies to giving directions to any State or to the manner in which the executive power thereof is to be exercised
This particular power conferred on the Union Executive is in total violation of the provisions of Article 162 of the Constitution and indeed of the federal structure which is one of the principal features of our Constitution in any State Executive fails to comply with the directions given by the Union Executive under Article 353a the President s rule can be imposed on that State under Article 356 in which event the Parliament is entitled under Article 3571 to confer on the President the power of the Legislature of that State to make laws The Parliament can even authorize the President to delegate such legislative power to any other authority
The democratic structure of the Constitution stands severely eroded in such a situation
Finally Parliament acquires during emergencies the power to make laws on matters which are numerated in the State List
If consequences so fundamentally subversive of the basic federal structure of the Constitution can ensure during emergencies it is not as revolting as may be appear at first sight that even if the Executive does not obey the mandate of the Legislature the citizen is powerless to move any court for the protection of his fundamental rights if these rights are mentioned in the Presidential order
A facet of the same argument was presented on behalf of the respondents with even greater force
It was urged that article 3591 may remove fetters imposed by Part III but it cannot ever remove the fetters arising from the principle of rule of law or from the principle of the limited power of the Executive under a system of checks and balances based on separation of powers
The obligation cast on the Executive to act in accordance with law does not according to the respondents arise from any particular article of the Constitution but it arises from the inherent compulsion of the rule of law which is a central basic feature of our constitutional system
The suspension of the right to enforce Article 21 cannot automatically entail the suspension of the rule of law because even during an emergency the argument proceeds the rule of law is not and cannot be suspended
The Executive has a limited authority under the Indian Constitution and it can act within the residual area as it pleases so long as it does not act to the prejudice of the citizen
It is always incumbent on the Executive to justify its action on the basis of law and this according to the respondents is the principle of legality or the rule of law
The respondents  argument that all executive action which operates to the prejudice of a person must have the authority of law to support it is indisputably valid in normal situations
In the absence of Proclamation of Emergency and in the absence of a Presidential order 390 Article 3591 of the kind that we have in the instant case the I executive is under an obligation to obey the law and if it acts to the prejudice of anyone by disobeying the law its action is liable to be challenged by an appropriate writ
That the rule of law must prevail in normal times is the rule of law under the Indian Constitution
But it is necessary to clear a misconception
Even though the compulsion to obey the law is a compulsion of normal times Article 358 takes in those cases only in which the executive purports to act under the authority of a law
It does not envisage that the executives can  act without the apparent authority of law
In other words Article 358 enables the Legislature to make laws in violation of Article 19 and the Executive to act under those laws despite the fact that the laws constitute an infringement of the fundamental rights conferred by Article 19
The argument of the respondents that the Presidential order under Article 3591 cannot ever suspend the rule of law requires a close examination particularly in view of some of the decisions of this Court which apparently support that contention
In State of Madhya Pradesh  Anr
vs Thakur Bharat Singh1 the State Government on April 24 1963 made an order under section 3 of the Madhya Pradesh Public Security Act 1959 directing that the respondent shall not be in any place in Raipur District that he shall immediately proceed to and reside in a named town and that he shall report daily to a police station in that town
The order was challenged by the respondent by a writ petition under Articles 226 and 227 of the Constitution on the ground that section 3 infringed the fundamental rights guaranteed by Article 191d and e of the Constitution
The respondent succeeded in the High Court which declared a part of the order invalid on the ground that section 3 1 b of the Act was violative of Article 191d of the Constitution
In appeal
it was contended in this Court on behalf of the State Government that so long as the state of emergency declared on October 20 1962 was in force the respondent could not move the High Court by a petition under Article 226 on the plea that by the impugned order his fundamental right guaranteed under Article 191d was infringed
It was further contended on behalf of the State Government that even if section 31b was held to be void
Article 358 protected legislative as well as executive action taken after the Proclamation of Emergency and therefore the order passed by the Government after the emergency was declared could not be challenged as infringing Article 19
Describing this latter argument as involving a grave fallacy a Constitution Bench of this Court dismissed the State s anneal holding that for acts done to the prejudice of the respondent after the declaration of emergency under Article 352
no immunity from the process of the Court could be claimed under Article 358 of the Constitution since the order was not supported by and valid legislation
Shah J who spoke on behalf of the Bench observed in his judgment that an executive action which operates to the prejudice of any person must have the authority of law to support it and that the 1 1967 2 SCR454 391 terms of Article 358 do not detract from that rule
Article 358 according to this Court did not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others but it merely provides that so long as the Proclamation of Emergency subsists laws may be enacted and executive action may be taken in pursuance of lawful authority which if the provisions of Article 19 were operative would have been invalid
It is important to bear in mind that Bharat Singh s case was concerned with a pre emergency law though the impugned order was passed thereunder during the operation of emergency
The law having been passed in 1959 which was before the declaration of emergency it had to comply with Article 19 and if it did not it was void to the extent of the inconsistency
Since the law was held to be violative of Article 19 it could not claim any protection under Article 358
That article lifts restrictions on legislative power while a proclamation of Emergency is in operation that is to say it enables laws to be made during the emergency ever if they conflict with Article 19
The executive is then free to act under those laws
But if the law is void for the reason that having been made prior to the emergency it violates Article 19 or if there is no law at all under the purported authority of which the executive has acted the executive action is not protected by Article 358
Bharat Singh s case is distinguishable for the additional reason that it was only concerned with the effect of Article 358 and no question arose therein with regard to any executive action infringing a fundamental right mentioned in a Presidential order issued under Article 3591
I have already indicated the vital difference between Article 358 and Article 3591
The latter bars the enforcement of any fundamental right mentioned in the Presidential order thereby rendering it incompetent for any person to complain of its violation whether the violation is by the Legislature or by the Executive
In other words Article 3591 bars the remedy by depriving an grieved person of his locus to complain of the violation of such of his fundamental rights as are mentioned in the Presidential Order
Respondents also relied in support of the same submission on the decisions of this Court in District Collector of Hyderabad  ors
vs Ms Ibrahim  Co etc1 Bennett Coleman  Co and ors
vs Union of India  ors
2 and Shree Meenakshi Milk Ltd vs Union of India
3 These decisions are founded on the same principle as Bharat Singh s case and are distinguishable for the same reason
In Ibrahim case
the existing licences of recognised dealers in sugar were cancelled by the State Government and a monopoly licence was given to a Cooperative Stores thereby preventing the dealers by a mere executive order from carrying on their business
A question arose in the appeal whether the order of the State Government canceling the licences of the dealers was protected under Articles 358 and 1 2   773 775
3  405 406 and 428 392 359 the Constitution as the President had declared a state of emergency on October 20 1962
This question was answered in the negative on the ground that the executive order which was immune from attack is only that order which the State was competent to make but for the provisions contained in Article 19
Since the executive action of the State Government was invalid apart from Article 19 it was not immune from attack merely because a Proclamation of Emergency was in operation
The important point of distinction is that in Ibrahim s case the impugned order was not made under the authority reserved by the Defence of India ordinance or the rules made thereunder but was issued merely in pursuance of the policy laid down by the Central Government in entrusting the distribution of sugar exclusively to co operative societies
In Bennett Coleman Company s case the impugned Newsprint Control Policy was an emanation of the old policy which was enunciated prior to the Proclamation of Emer ency
Relying on Ibrahim s case and Bharat Singh s case this Court held that Article 358 does not authorise the taking of detrimental executive action during the emergency without any legislative authority or in purported exercise of power conferred by a pre emergency law which was invalid when enacted
The decision in Bennett Coleman Company s case was followed in Meenakshi Mills  case where the executive action taken during the emergency did not have the authority of any valid law and the impugned orders having been made under a pre emergency law were not immune from attack under Article 358
Respondents relied on a passage in the judgment of Ramaswami who spoke on behalf of the Court in  Chief Settlement Commissioner Rehabilitation Department Punjab  Ors etc
vs Om Parkash  ors
1 to the effect that whatever legislative Power the executive administration possesses must be derived directly from the delegation of the legislature and exercised validly only within the limits prescribed
The Court emphatically rejected the notion of inherent or autonomous law making power in the executive administration of the country and observed that the rule of law rejects the conception of the Dual State in which governmental action is placed in a privileged position of immunity from control by law on the ground that such a notion is foreign to our basic constitutional connects
Respondents also relied upon the decision of the privy council in Eshuqbayi Eleko vs Officer Administering the Government of Nigeria 2 where Lord Atkin observed that in accordance with the British jurisprudence no member of the Executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of Justice
Our attention was repeatedly drawn to a further observation made by Lord Atkin that it is a tradition of British justice that judges should not shrink from deciding such issues in the face of the executive
These observations have been considered by this court in Makhan Shingh s case where speaking of behalf of the majority Gajendragad 1 19683 section C R 655
2   670
393 kar J said that the sentiments expressed by Lord Aktin were noble and eloquent but it was necessary to have regard to the provision of our Constitution by which were governed and which has itself made emergency provisions in order to enable the nation to meet the challenge of external aggression or internal disturbance
The principle enunciated in Eleko s case however lofty and stirring has no relevance here because we have to consider the meaning and effect of Article 359 1 which has no parallel in the English law
Eleko s principle is unquestionably supreme in times of peace and so is the validity of the observations made by Ramaswami J in Om Prakash s case
Both of those cases were concerned with a totally different problem the problem of peace not of war or internal disturbance
The Rule of Law  argument like the Basic Feature  argument is intractable
Emergency provisions contained in Part XVIII of the Constitution which Lure designed Lo protect the security of the State are as important as any other provision of the Constitution
If the true constriction and effect of article 3591 is as I have stated it to be it is impossible to hold that such a construction violates the rule of law
The rule of law during an emergency is as one finds it in the provisions contained in Chapter XVIII of the Constitution
There cannot be a brooding and omnipotent rule of law drowning in its effervescence the emergency provisions of the Constitution
The Advocate General of Gujarat had peculiar problems to voice
arising out of the fluid and uncertain political situation in his State
He was unable to appreciate how the Executive Government of the State could defy a parliamentary mandate contained in the MISA either as regards the procedural or the substantive part of that law
Whatever may be the requirements of emergency he seemed to contend the Gujarat Government could not save at grave peril to its existence defy the provisions of a law made by the Parliament
The anguish and embarrassment of the learned Advocate General is understandable but the short answer to his contention is that on the record
the Government of Gujarat has not been asked to flout the MISA and indeed no one can dispute the right of the State Government to ensure compliance with the laws of the land
Indeed that is its plain and foremost duty
The important consideration is that in the event of State Government coming to pass an order of detention in violation of MlSA the detenu will have no right to enforce his Corresponding fundamental right if it is mentioned in the Presidential order
The learned Advocate General built his argument as if
during emergencies the executive is under an obligation to flout the law or the h ind
Article 3591 neither compets nor condones the breaches by the executive of the laws made by the legislature
Such condonation is the function of an Act of Indemnity
I must now take up for consideration a very important plank of the respondents  argument that Article 21 is not the sole repository of the right to life and personal liberty This argument has been presented before us from aspects too numerous to mention and scores of instances have been cited to buttress it
This was to some extent inevitable because quite a few counsel argued the same point and each 394 had his peculiar favourite accent
I will try to compress the arguments without I hope sacrificing their thematic value The respondents  arguments may be put thus 1 Article 21 is not the sole repository of the right to personal liberty because that right can be found in Articles 191 b 20 and 22 also
In view of the decision in the Bank Nationalisation1 case which overruled Gopalan s case these rights are not mutually exclusive and therefore the suspension of the right to enforce Article 21 cannot affect the right conferred by Articles 19 20 and 22
2 Article 21 is not the sole repository of the right to personal liberty because i an accused convicted of murder and sentenced to death can assert his right to life by challenging the conviction and sentence in appeal in spite of the Presidential order under Article 3591 ii if a person is wrongfully confined
he can ask for his personal liberty by prosecuting the offender in spite of the Presidential order and iii if a money decree is passed against the Government the decree can lie enforced even if the right to enforce the right to property is suspended by the Presidential order
3 Prior to the enactment of the Constitution statutory contractual and common law rights were in existence and those rights can be taken away only by the Legislature
They cannot be affected by the Presidential order
The pre Constitution common law and statutory rights to personal liberty continued in force by reason of Article 372 of the Constitution since those rights were not repugnant to any provision of the Constitution
If the fundamental right to personal liberty is suspended by the Presidential order the pre Constitution laws will begin to operate by reason of the their of eclipse
There is no authority for the proposition that on the conferment of fundamental rights by the Constitution the corresponding pre existing rights Merged in the fundamental rights and that with the suspension of fundamental rights the corresponding pre existing rights also got suspended
Article 21 is different in content from the common law right to personal liberty which was available against private individuals also
Since Article 21 merely elevates the right of personal liberty to the status of a fundamental right the pre Constitution rights cannot be suspended by the Presidential order
The object of Article 21 is to give and not to take
In fact the very language of that Article shows that instead of conferring the right to personal liberty it assumed its existence in the first place and then proceeded by a negative provision to prohibit its deprivation
Examples of such pre Constitution rights are 1 rights available under the Indian Penal Code and the Criminal Procedure Code ii rights available under the law of torts
especially the rights to sue for damages for false imprisonment
and iii the remedy of habeas corpus available under section 491 Criminal Procedure Code since the year 1923
1   578
2   395 4 Non fundamental constitutional rights like those arising under Articles 256 265 and 3613 or natural rights or contractual rights or the statutory rights to personal liberty are not affected by the Presidential order
Statutory rights can only be taken away in terms of the statute and not by an executive flat
By reason of Article 256
the executive power of every state must ensure compliance with the laws made by the Parliament
The executive power of the States must therefore comply with section 56 and 57 of the Criminal Procedure Code and a person aggrieved by the violation of those provisions can enforce his statutory right to personal liberty in spite of the Presidential order
By Article 265 no tax can be levied or collected except by authority of law
A person affected by the violation of this provision can enforce his right to property even if Article 19 is suspended
If a process happens to be issued against the Governor of a State in contravention of Article 3613 the Governor can exercise his right to personal liberty despite the Presidential order under Article 3591 
Similarly in cases not covered by section 16A of the MISA if the Advisory Board opines that the detention is unjustified the detenu can compel the Government to accept that opinion in spite of the Presidential order
5 Even after the passing of a Presidential order Parliament may create new rights to personal liberty and such rights can be enforced in spite of the Presidential order
6 Civil liberty or personal liberty is not a conglomeration of position rights
It operates in an area of free action and no law can possibly curtail it
7 If a law affecting the fundamental right to personal liberty is void for want of legislative competence
 it can be challenged in spite of the Presidential order 8 The suspension of the right to enforce personal liberty cannot confer a licence on executive officers to commit offences against the law of the land and if they do so they can be brought to book in spite of the Presidential order
I look at the question posed by the respondents from a different angle
The emergency provisions of the Constitution are designed to protect the Security of the State and in order to achieve that purpose various powers have been conferred on the Parliament and the President by Chapter XVIII of the Constitution
One of such powers is to be found in Article 3591 under which the President during the operation of the emergency can issue an order suspending the right to move any court for the enforcement of all or any of the fundamental rights conferred by Part III
Proceedings commenced prior to the issuance of such an order including proceeding s taken prior to the declaration of the emergency itself automatically remain suspended during the emergency or for such shorter period as the President may in his order specify
The object of empowering the President to issue an order under Article 3591 suspending the enforcement of the right to personal liberty conferred by Part III of the 396 Constitution cannot be to save all other rights to personal liberty except the one conferred by Part III which to the seems totally devoid of meaning and purpose
There is nothing peculiar in the content of the right to personal liberty conferred by Part III so that the Constitution should provide only for the suspension of the right to enforce that particular kind of right leaving all other rights to personal liberty intact and untouched
In times of emergencies the executive unquestionably though unfortunately is constrained to take various forms of action in derogation of the rights of citizens and others including the cherished right to personal liberty
The Constitution aims at protecting the executive during the operation of emergency from attacks on the action taken by it in violation of the rights of individuals
Accordingly in so far as the right to personal liberty for example is concerned one of the objects of the emergency pro visions is to ensure that no proceeding will be taken or continued to enforce that right against the executive during the operation of the emergency
The executive is then left free to devote its undiluted attention to meeting the threat to the security of the State
This purpose cannot ever be achieved by interpreting Article 3591 to mean that every right to personal liberty shall be enforceable and every proceeding involving the enforcement of such right shall continue during the emergency except to the extent to which the right is conferred by Part III of the Constitution The existence of the right to personal liberty in the pre Constitution period was surely known to the makers of the Constitution
The assumption underlying the respondent s argument is that in spite of that knowledge the Constituent Assembly decided that all those rights will reign supreme in their pristine glory even during the emergency and what will remain in abeyance is only the enforcement of the right to personal liberty conferred by Part III
The right to personal liberty has no hallmark and therefore when the right is put in action it is impossible to identify whether the right is one given by the Constitution or is one which existed in the pre Constitution era
If the arguments of the respondents is correct no action to enforce the right to personal liberty can at all fall within the mischief of the presidential order even if it mentions Articles19 20 21 and 22 because every preliminary objection by the Government to a petition to enforce the right to personal liberty can be effectively answered by contending that what is  being enforced is either the natural right to personal liberty or generally the pre Constitution right to personal liberty
The error of the respondents  argument lies in its assumption and in regard to the argument of some of the counsel in the major articulate premise that the qualitative content of the non constitutional or pre constitutional right to personal liberty is different from the content of the right to personal liberty conferred by Part III of the Constitution
The right to personal liberty is the right or the individual to personal freedom
nothing more and nothing less
That right along with certain other rights was elevated to the status of a fundamental right in order that it may not be tinkered with and in order that a mere majority should not be able to trample over it
Article 359 1 enables the President to suspend the enforcement even of those rights which were sanctified by being lifted out of the common morass of human rights
If the enforcement of the fundamental 397 rights can be suspended during an emergency it is hard to accepts That the right to enforce non fundamental rights relating to the same subject matter should remain alive
Article 3591 contains three important clauses 1 The Proclamation of Emergency must be in operation at the time when the President issues his order 2 The President must issue an order declaring the suspension of the right to move any court and 3 The power of the President to declare such suspension can extend to such rights only as are conferred by Part III
If these three conditions are satisfied no person can move any court for the enforcement of such of the rights conferred by Part III as are mentioned in the Presidential order
The first and foremost question to ask when a proceeding is filed to enforce a right as against the Government while a Proclamation of Emergency is in operation is whether the right is mentioned in the Presidential order and whether it is the Kind of right conferred by Part III
Article 21 for example confers the right to life and personal liberty
The power of the President therefore extends under Article 3591 to the suspension of the right to move any court for the enforcement of the right to life and personal liberty
The President cannot suspend the enforcement of any right unless that right is included in Part III which confers fundamental rights
The President in my opinion would be acting within the strict bounds of his constitutional power if instead of declaring the suspension of the right to enforce the right conferred by Article 21 he were to declare that the right not to be deprived of life and personal liberty except according to procedure established by law shall remain suspend during the emergency
Article 359 1 does not really contemplate that while declaring the suspension of the right to move any court the President must or should specify the Article or the Articles of the Constitution the enforcement of rights conferred by which shall be suspended
What Article 359 1 contemplates is that the President can declare the suspension of the right to move any court for the enforcement cf the rights mentioned in Part III
The words conferred by Part III which occur in Article 3591 are not intended to exclude or except from the preview of the Presidential order rights of the same variety or kind as are mentioned in Part III but which were in existence prior to the Constitution or can be said to be in existence in the post Constitution era apart from the Constitution
The emphasis of the Article is not the right to suspend the enforcement of the kind of rights mentioned in Part III and not on the fact that those rights are conferred by Part III
To put it differently
the words  conferred by Part III are used only in order to identity the particular rights the enforcement of which can be suspended by the President and not in order to impose a limitation on the power of  the President so as to put those rights which exist or which existed apart from the Constitution beyond the reach of  the Presidential order
The respondents by their petitions are enforcing their right to personal liberty and that right is a right conferred by or mentioned in Part III or the Consti 398 tution
As I have said above if instead of saying that the right to enforce the right conferred by Article 21 shall be suspended the President were to say that the right not to be deprived of life or personal liberty except according to procedure established by law will remain suspended no argument of the kind made before us could reasonably have been made
The true effect of the Presidential order though worded in the way it is is the same as it would have been had it been worded in the manner I have indicated
It therefore does not make any difference whether any right to personal liberty was in existence prior to the enactment of the Constitution either by way of a natural right statutory right common law right or a right available under the law of torts
Whatever may be the source of the right and whatever may be its justification the right in essence and substance is the right to personal liberty
That rights having been included in Part III its enforcement will stand suspended if it is mentioned in the Presidential order issued under Article 3591
The view which I have taken above as regards the scope and meaning of Article 3591 affords in my opinion a complete answer to the contention of the respondents that since Article 21 is not the 1 sole repository of the right to personal liberty the suspension of the right to enforce the right conferred by that Article cannot affect the right to enforce the right of personal liberty which existed apart from that Article
I have held that on a true interpretation of the terms of the Presidential order read with Article 3591 what is suspended is the right to move for the enforcement of the right to personal liberty whether that right is conferred by Constitution or exists apart from and independently of it
Otherwise the Constitution has only done much ado about nothing
All the same I would like briefly to deal with the argument of the respondents on its own merit particularly the illustrations cited in support of that argument
It is true that in view of the decision in the Bank Nationalisation case1 the right conferred by Articles 21 and 19 cannot be treated as mutually exclusive
But the suspension of the right to enforce the right of personal liberty means the suspension of that right wherever it is found unless its content is totally different as from one Article to another 
The right conferred by Article 21 is only a description of the right of personal liberty in order to facilitate its exact identification and such a description cannot limit the operation of the Presidential order to those cases only where the right to personal liberty is claimed under Article 21
The circumstance that the pre Constitution rights continued in force after the enactment of the Constitution in view of Article 372 does not make any difference to this position because even assuming that certain rights to personal liberty existed before the Constitution and continued thereafter as they were not repugnant to any provision 1   578 399 of the Constitution all rights to personal liberty having the same content as the right conferred by Article 21 would fall within the mischief of the Presidential order
The theory of eclipse  has no application to such cases because that theory applies only when a pre Constitution law becomes devoid of legal force on the enactment of the Constitution by reason of its repugnancy to any provision of the Constitution
Such laws are not void but they are under an eclipse so long as the repugnancy lasts
When the repugnancy is removed the eclipse also is removed and he law becomes valid
As regards the doctrine of merger  it is unnecessary to go to the length of saying that every prior right to personal liberty merged in the right to personal liberty conferred by Part III
Whether it merged or not it cannot survive the declaration of suspension if the true effect of the Presidential order is the suspension of the right to enforce all and every right to personal liberty
In that view it would also make no difference whether the right to personal liberty arises from a statute or from a contract or from a constitutional provision contained in some Part other than Part III
As regards the illustrations it is neither proper nor possible to take each one of them separately and answer them
Hypothetical illustrations cannot establish a point and practical difficulties have to be solved as and when they arise
But some of the more important illustrations taken by the respondents  counsel seem to me to have a simple answer
For example when an accused challenges his conviction for murder and the sentence of death imposed on him for that offence his remedy by way of an appeal is not barred by the Presidential order because he is only trying to get rid of a judgment which holds him guilty of murder
It is not he who moved the court for his personal liberty but it is the prosecution which dragged him to the court to prove the charge of murder against him
The accused only defends the charge of criminality whether it is in the trial court or in a higher court
Similarly if a person is wrongfully confined the prosecution of the offender is not intended or calculated to secure the personal liberty of the victim he court may in proper cases pass an order releasing the complainant from wrongful confinement but the true object of the prosecution is to punish the person who has committed an offence against the penal law of the land
As regards decretal rights against the Government what the decree holder enforces in execution is not his right to property
The original cause of action Merges in the decree and therefor what is put into execution is the rights arising under the decree
The illustration regarding The issuance of a process against the Governor of a State need not be pursued seriously because such an event is hardly ever likely to happen and id it does the gubernatorial rights may possibly withstand the Presidential order under Article 3591 
As regards the flouting of the opinion of the Advisory Board by the Government a writ of mandamus compelling the Government to obey the mandate of the law may perhaps stand on a different hooting as the very nature of such a proceeding is basically different
Lastly it is unrealistic to believe that after the passing of the Presidential order suspending the 400 existing constitutional rights Parliament would create new rights to personal liberty so as to nullify the effect of the Presidential order
The easier way for the Parliament would be to disapprove of the Proclamation of emergency when it is placed before it under Article 3522 b of the Constitution or to disapprove of the Presidential order issued under Article 3591 when it is placed before it under Article 3593 of the Constitution
But as I have said earlier it is difficult to furnish a clear and cogent answer to hypothetical illustrations
In the absence of necessary facts one can only make an ad hoc answer as I have attempted to do regarding the possible issuance of a process against the Governor of a State
Actually Article 3613 speaks of a Process for the arrest or imprisonment of a Governor issuing from any court
Fundamental rights can be exercised as against judicial orders but the circumstances in which such a process may come to be issued if at all may conceivably affect the decision of the question whether a presidential order issued under Article 3591 can bar the remedy of an aggrieved Governor
In so far as the illustrative cases go I would like to add that Article 256 which was chosen by the respondents as the basis of an illustration cases not seem to confer any right on any individual
That Article appears in Part XI which deals with relations between the Union and the States
A failure to comply with Article 256 may attract serious consequences but no court is likely to entertain a grievances at the instance of the private party that Article 256 has not been complied with by a State Government
As regards the claim to personal liberty founded on a challenge to an order on the ground of excessive delegation I prefer to express no firm opinion though the greater probability is that such a challenge may fail in face of a Presidential order of the kind which has been passed in the instant case
I have held above that the existence of common law rights prior to the Constitution will not curtail the operation of the Presidential order by excepting those rights from the purview of the order
I may add that the decision of this Court in Dhirubha Devisingh Gohil vs The State of Bombay1 is an authority for the proposition that if any pre Constitution right has been elevated as a fundamental right by its incorporation in Part III the pre existing right and the fundamental right are to be considered as having been grouped together as fundamental rights conferred by the Constitution
The decision in Makhan Singh vs State of Punjab also shows that once right to obtain a direction in the nature of habeas corpus became in 1923 a statutory right to a remedy after the enactment of section 491 of the Code of Criminal Procedure it was not open to any party to ask for a writ of habeas corpus as a matter of common law
It was contended for the respondents that the High Court have jurisdiction under Article 226 to issue writs and directions not only for the enforcement of fundamental rights but for any other purpose and since by their petitions they had really asserted their non 1  2 1964 4 section C R 797 818 819
401 fundamental rights the High Courts had the jurisdiction to issue appropriate writs or directions upholding those rights in spite of the Presidential order
This argument cannot be accepted because the entire claim of the resonants is that the order of detention are in violation of the MISA which in substance means that the respondents have been deprived of their personal liberty in violation of Article 21 of the Constitution
By that Article no person can be deprived of his life or personal liberty except according to procedure established by law
The grievance of the respondents is that they have been deprived of their personal liberty in violation of the procedure established or prescribed by the MISA
In substance therefor they are complaining of the violation of a fundamental right which it is not open to them to do in view of the Presidential order by which the right to move any court for the enforcement of the right conferred by Article 21 has been suspended
This judgment long as it is will be incomplete without least a brief discussion of some of the important decisions of this Court which were referred to during the course of arguments time and again
Before doing so a prefatory observation seems called for
The Earl of Halsbury L C said in Quinn vs Leathem  that the generality of the expressions which may be found in a judgment are not intended to be expositions of the whole law but are governed and qualified by the particular facts of the case in which such expression are to be found
This Court in the State of orissa vs Sudhansu Sekhar Misra  Ors2 uttered the caution that it is not a profitable task to extract a sentence here and there from a judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein
Counsel have not done any such shearing but I thought I might beging the study of cases with I se1f admonition
A decision of this Court on which the greatest reliance was placed by the respondents is Makhan Singh vs State of Punjab 3 The appellants therein were detained under Rule 30l  b of the Defence of India Rules made by the Central Government under section 3 of the Defence of India Ordinance 1962
They applied for their release to the Punjab and Bombay High Court under section 4911b of the Code of Criminal Procedure their contention being that certain section of the Defence of India Act and Rule 30l b of the Defence of India Rules were unconstitutional since they contravened their fundamental rights under Articles 14 21 and 224 5 and 7 of the Constitution
The High Court held that in view of the Presidential order which was issued on November 3 1962 under article 3591 of the Constitution the petitions of habeas corpusfiled by the appellants were barred
Being aggrieved by the orders dismissing their petitions the detenus filed appeals in this Court which were heard by a Constitution Bench consisting of 7 Judges
The judgment of the majority was delivered by Ganjendragadkar J Sulbba Rao J gave a dissenting judgment
1   506
2   163
3 1964l 4 section C R 797
28 833 Supr Cl76 402 Both the majority and the minority judgments agree that the Presidential order would take away the right to move the Supreme Court under article 32 and the High Court under article 226 for the enforcement of the rights mentioned in the order
But while the majority took the view that the petition under section 491 of the Criminal Procedure Code was also barred Subha Rao J held that the petitioners  right to ask for relief by filing an application under section 491 was not affected by the Presidential order
This difference in the view of the majority and the minority is now of no consequence as section 491 has ceased to be on the Statute Book after April 1 1974 when the new Code of Criminal Procedure came into force
The conclusion of the Court in Makhan Singh s case may be summed up thus 1
article 359 is reasonably capable of only one construction as its language is clear and unambiguous
The suspension of article 19 contemplated by article 358 removes during the pendency of the emergency 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 emergency is automatically revived and begins to operate
4 article 359 on the other hand does not purport expressly to suspend any of the fundamental rights
What the Presidential order purports to do by virtue of the power conferred of the President by article 359  1  is to bar the remedy of the citizens to move any court for the enforcement of the specified rights
The Presidential order cannot widen the authority of the legislatures or the executive it merely suspends the rights to move any court to claim a relief on the ground that the rights conferred by Part III have been contravened if the said right are specified in the order
If at the expiration of the Presidential order Parliament passes any legislation to protect executive action taken during the pendency of the Presidential order and afford indemnity to the executive in that behalf the validity and the effect of such legislative action may have to be carefully scrutinised
403 6
The words the right to move any court which occur article 3591 refer to the right to move any court of 
competent jurisdiction including both the Supreme Court and the High Court
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 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 right to ask for a writ in the nature of habeas cor pus which could once have been treated as matter of Common Law has become a statutory right after 1923 and after section 491 was introduced in the Cr P C it was not open to any citizen in India to claim the writ of habeas corpus on grounds recognised by Common Law apart from the provision of section 4911b itself
Whether or not the proceedings taken under section 491 1 b fall within the purview of the Presidential order must depend upon the construction of article 359  1  and the order and in dealing with this point one must look at the substance of the matter and not its form
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 of article 321 of the Constitution or he may take a proceeding under section 4911b of the Code
But despite the fact that either of the two remedies can be adopted by a citizen who has been detained improperly or illegally the right which he claims is the same if the remedy sought for is based on the ground that there has been a breach of his fundamental rights and that is a right guaranteed to the citizen by the Constitution and so whatever is the form of the remedy adopted by the detenu the right which he is seeking to enforce is the same
Therefore the prohibition contained in article 3591 and the Presidential order will apply as much to proceedings under section 491b is to those under article 2261  article 321
If the detenu is prohibited from asking for and order of release on account of the Presidential order it would not 404 be open to him to claim a mere declaration either under A section 491 or under Articles 32 or 226 that the detention unconstitutional or void
The right specified in article 3591 includes the relevant right whether it is statutory constitutional or constitutionally guaranteed
After recording these conclusions the majority judgment proceeded to consider the question as to which are the pleas which are open to a person to take in challenging the legality or the propriety of his detention either under section 491  I  b or under article 2261  
The conclusions of the Court on this question are as follows a 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 Emphasis supplied Accordingly if a detenu is detained in violation of the mandatory provisions of the Act it would be open to him to contend that his detention is illegal
Such a plea is outside article 3591 and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential order  b The exercise of a power malafide is wholly outside the scope of the Act conferring the power and can always be successfully challenged
c It is only in regard to that class of cases falling under section 4911b where the legality of the detention is challenged on grounds which fall under article 3591 and the Presidential order that bar would operate
In all other cases falling under section 4911 the bar would be inapplicable and proceedings taken on behalf of the detenu will have to be tried in accordance with law
d If a detenu contends that the operative provision of the law under which he is detained suffers from the vice of excessive delegation and is therefore
ill valid the plea thus raised by the detenu cannot at the threshold be said to be barred by the Presidential order
In terms it is not plea which is relatable to the fundamental rights specified in the said order
lt is a piea which is independent of the said rights and its validity must be examined
The Court however rejected the contention that the impugned provisions of the Act suffered from the vice of excessive delegation 405 No judgment can be read as if it is a statute
Though the judgment of the majority contain the conclusions set out in a to d above I see no doubt that these conclusions owe their justification to the peculiar wording of the Presidential order which was issued in that case
The order dated November 3 1962 which was the subject matter of Makhan Singh s case has been set out at the beginning of this judgment
That order suspends the right of a person to enforce the rights conferred by Articles 14 21 and 22 if
such person has been deprived of any such rights under the Defence of India Ordinance 1962 4 of 1962 or any rule or order made thereunder
The Presidential order dated June 27 1975 with which we are concerned in the instant case docs not contain ally clause similar to the one extracted above from the order dated November 3 1962
The inclusion of that clause ill the earlier order has a significant impact on the question under consideration because under the earlier Presidential order the right to Move the court was taken away only i f a person was deprived of his rights under the Defence of India ordinance or under any rule or order made under the ordinance
A petition for habeas corpus filel during the operation of the Presidential order dated November 3 1962 was not barred at the threshold because the detenu was entitled to satisfy the court that though his detention purported to be under the Defence of India Ordinance or the Rules it was in fact not so
The detenu could establish this by satisfying the court that the detaining authority had no power to detain him which could be shown by pointing out that the pre conditions of the power to detain were not fulfilled
It was also open to the petitioner to establish that the order was vitiated by mala fides because a mala fide order has no existence in the eye of law and mala fides would take the order out or the statute
The same state of affairs continued under the two subsequent Presidential orders dated November 16 1 974 and December 23  l974
All the three orders were conditional and were dependent for their application on the fulfillment of the condition that the person concerned was deprived of his rights under the Defence of India ordinance or any rule or order made under it
The Presidential order of June 27 1975 makes a conscious and deliberate departure from the three earlier orders the object obviously being to deprive the detenu of the argument that he has been detained under an order only purports to have been passed under a particular Act but is ill fact n derogation thereof the terms of the Act having not been complied with
The order of June 27 1975 is not subject to ally condition precedent for its application and therefore there is no question of the detenu satisfying the court that any pre condition of the power of detention has not fulfilled
Some of the observations in Makhan Singh case may appear to support the argument that certain pleas which are refferred to therein are outside the scope of Article 3591 itself
Which great respect those observations really mean that the pleas are outside the Presidential order
Article 3591 is only an enabling provision and the validity of a plea cannot be tested which reference to that Article
The right to move a court for the enforcement of the rights conferred by Part III is not taken away by Article 359 1 406 It is the Presidenial order passed in pursuance of the powers conferred by that Article by which such a consequence can be brought about
It would be useful in this connection to refer Lo the decision of this Court in Dr Ram Manohar Lohia vs State of Bihar  ors
  The appellant therein was also detained under rule 30lb of the Defence of India Rules 1962 and he moved this Court under Article 32 of the Constitution for his release
the petition was argued on the basis that it was filed for the enforcement of the right to personal liberty under Articles 21 and 22 of the Constitution
A preliminary objection was raised on behalf of the Government that the petition was barred by reason of the Presidential order dated November 3 1962 the same as in Makhan Singh s case supra Sarkar J who shared the majority view repelled the preliminary objection by saying that the petition could have been dismissed at the threshold if the order of November 3 1962 were to take away all rights to personal liberty under Articles 21 and 22
According to the learned Judge the particular Presidential order did not do so in that it was a conditional order which deprived a person of his right to move a court for the enforcement of a right to personal liberty only if he was deprived of it by the Defence of India Act or any rule or order made under it
If he has not been so deprived the order does not take away his right to move a court
 This shows that if the first Presidential order was unconditional like the order in the instant case Dr Lohia s petition would have been rejected by this Court at the threshold
The judgment of Hidayatullah J who on behalf of himself and Bachawat J concurred with the view of Sarkar J also shows that the conditional Presidential order left an area of inquiry open as to whether the action was taken by a competent authority and was in accordnce with the Defence of India Act and the rules made thereunder
Yet another case arose under rule 30lb of the Defence of India Rules 1962 involving the interpretation of the first Presidential order dated November 3 1962
That case is K Anandan Nambiar  Anr vs Chief Secretary Government of Madras  ors2 Gajendrgadkar C J who delivered the judgment of the Constitution Bench referred to Makhan Singh s case and pointed out that the sweep of the
Presidential order dated November 3 1962 was limited by its last clause and therefore it was open to the detenu to contend that the order of detention was contrary to the conditions prescribed in that behalf by the Defence of India Act or the rules made thereunder In State of Maharashtra vs Prabhakar Pandurang Sangzgiri  Anr3 the respondent who was detained under an order passe under section 30l b of the Defence of India Rules 1962 sought permission from the State Government for publishing a book which he had written while ill jail
On the Government refusing the per 1  2 1966 2 SCR406
3 1966 1 SCR702 407 mission he filed a petition under Article 226 of the Constitution for an appropriate direction and after that petition was allowed by the A High Court the Government of Maharashtra filed an appeal in this Court
Subba Rao J who delivered the judgment of the Bench observed while dismissing the appeal that the President s order dated November 3 1962 was a conditional order and therefore if a person was deprived of his personal liberty not under the Act or a rule or order made thereunder but in contravention thereof his right to move the court in that regard would not be suspended
These judgments bring out clearly the ratio of Makhan Singh s case which arose out of the first Presidential order dated November 3 1962
The Presidential order with which we are concerned in The instant case is not subject to the pre condition that the detenu should have been deprived of his rights under any particular Act and therefore there is no scope for the inquiry whether the order is consistent or in conformity with any particular Act
This important distinction has not been fully appreciated in some of the judgments under appeal
The observations contained in the majority judgment in Makhan Singh s case that the exercise of a power mala fide is wholly outside the scope of the Act conferring the power and can always be successfully challenged at once raises the question whether in spite of the Presidential order dated June 27 1975 it is open to the respondents to show that the order of detention in any particular case is vitiated by mala fides
The proposition that a mala fide order has no existence in the eye of law is not peculiar to Makhan Singh s case but has been accepted in various decisions of this Court two of them being Jaichand Lall Sethia vs State of West Bengal or2 and Durgadas Shirali vs Union of India  ors2 A mala fide exercise of power does not necessarily imply any moral turpitude and may only mean that the statutory power is exercised for purposes other than those for which the power was intended by law to be exercised
In view of the fact that an unconditional Presidential order of the present kind affects the locus standi of the potitioner to move any court for the enforcement of any of his fundamental rights mentioned in the order it would not be open to him to show that the statutory power has been exercised for a purpose other than the one duly appointed under the 
So long as the statutory prescription can be seen on the face of the order to have been complied with no further inquiry is permissible as to whether the order is vitiated by legal mala fides
As regards mala fides in the sence of malice in fact the same position must hold good because the Presidential order operates as a blanket ban on any and every judicial inquisition into the validity of the detention order
Makhan Singh s case as also Jaichand Lall Sethia s and Durgadas Shirali s arose under the Defence of India Rules 1962 and the relevant Presidential order which applied was the one dated November 3 1962 which as stated above was a condi H 11966 Supp
SCR464
2l966 2 SCR573
408 tional order
If in any given case an order of detention appears on the very face of it to be actuated by an ulterior motive the court would have jurisdiction to set it aside because no judicial inquiry of any sort is required to be undertaken in such a case
But short of such ex facie vitiation any challenge to a detention order or
the ground of actual mala fides is also excluded under the Presidential order dated June 27 1975
Section 16A9 of the MISA which was introduced by the Third Amendment Ordinance 16 of 1975 with effect from June 29 1975 must make a significant difference to the question whether in spite of the Presidential order it is open to a detenu to challenge hi detention on the ground of make files
Prior to the enactment of section 16A9 the detaining authority was under an obligation by reason of section 81 of the MISA to communicate to the detenu the grounds of detention
The only exception was as stated in section 8 2  that the detaining authority need not disclose facts which it considers to be against the public interest to disclose
Section 16Al provides that the pro visions of section 16A shall have effect during the period of operation of Proclamation of Emergency issued on December 3 1971 and on June 25 1975 or for a period of 12 months from June 25 1975 whichever period is the shortest
By sub section 2 of section l6A the case of every person against whom an order of detention was made under the MISA on or after June 25 1975 but before the commencement of section 16A on June 29 1975 is required to be reviewed by the appropriate Government for the purpose of determining whether the detention of such person is necessary for dealing effectively with the emergency
the answer be in the affirmative the Government is required to make a declaration to that effect By sub section 3 whenever an order of detention is made under the Act after June 29 1975 the officer making the order of detention or the appropriate Government is similarly required to consider whether the detention of the persons is necessary for dealing effectively with the emergency
If so a declaration is required to be made to that effect
Sub section 9a of section 16A provides that the grounds on which an order of detention is made against any person in respect of whom a declaration is made under sub section 2 or sub section 3 of section 16A and any information or materials on which such grounds are based shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose and save as otherwise provided in this Act no one shall communicate or disclose any such grounds information or material or any document containing such ground information or material
 Clause b of section 16A 9 provides that no person against whom an order of detention is made under sub section 1 of section 3 shall be entitled to the communication or disclosure of any such ground information or material as is referred to in clause a or the production to him of ally document containing such ground information or material
409 I will deal with the constitutionality of section 16A9 later but on the assumption that it is valid it is plain that not only is a detenu in regard to whom the necessary declaration is made not entitled to be furnished with the grounds of detention or the material or information on which the grounds are based but neither the Government nor the officer passing the order of detention can communicate or disclose the grounds material or information they are deemed to refer to matters of State and against the public interest to disclose In view of this cast iron prohibition it is difficult to see how at least those detenus falling within sub sections 2 and 3 of section 16A can possibly establish even prima facie a charge of factual mala fides It is the grounds of detention from which generally a plea of mala fides is spelt out and if the court has access to the grounds the material and the information it becomes possible to unravel the real motive of detention
on the absence of these aids a charge of fides can only The a fling in the air and cannot hope to succeed
The observation in Makhan Singh s case therefore that the exercise of a power mala fide can always be successfully challenged could not apply to cases falling under sub sections 2 and 3 of section 16A by reason of the provisions contained in sub section 9 of that section
Turning to the constitutional validity of section 16A9 the contention of the respondents is that clause a of section 16A9 by which the grounds of detention and the information and materials on which the grounds are based shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose is not a genuine rule of evidence but is designed to encroach upon the jurisdiction of the High Courts under Article 226 of the Constitution and is therefore void
It is urged that the amendment made by the Parliament in the exercise of its ordinary legislative power comes into direct conflict with the High Court s jurisdiction under Article 226 because it would be impossible for any High Court to consider the validity of an order of detention when a petition for habeas corpus comes before it if the law prohibits the disclosure of the grounds of detention and the necessary information or materials to the High Court
It is a relevant consideration for examining the charge that the true purpose of section 16A9 is to encroach on the powers of the High Court under Article 226 that the operation of section 16A itself is limited to the period during which the two proclamations of emergency dated December 3 1971 and June 25 1975 are in operation or for a period of 12 months from June 25 1975 whichever period is the shortest
Following the proclamations of emergency the President has issued orders under Article 359 1 By the order dated Junc 27 1975 the very locus standi of the detenu to enforce any of his fundamental rights mentioned in the Presidential order is taken away and consequently there is no matter of substance into which the High Courts in the exercise of their writ jurisdiction can legitimately inquire
The injunction contained in section 16A9 is from this point of view innocuous for it purports to create a check 410 on a power which for all practical purposes has but a formal existence
Section 16A9 is in aid of the constitutional power conferred by Article 3591 and further effectuates the purpose of the Presidential order issued under that Article
If so it cannot be declared unconstitutional
Quite apart from this position I am unable to agree that the rule enunciated in section 16A9 is not a genuine rule of evidence
It is true that grounds of detention used to be disclosed before the emergence of section 16A9 but that does not mean that the grounds on which the order of detention is based or the information or materials on which the grounds are based are not or cannot be of a confidential nature
More likely than not such grounds material and information would be of a confidential nature relating to matters of State which would be against the public interest to disclose
Instead of leaving each individual matter to be judged under section 123 of the Evidence Act by the Head of the Department concerned who can give or withhold the permission as he thinks fit Parliament would appear to have considered that since the grounds material and information in detention cases are of a confidential nature it would be much more satisfactory to provide that they shall be deemed to refer to matters of State
If section 16A9 is unconstitutional so would sections 123 124 and 162 of the Evidence Act
Section 123 gives the necessary discretion to the Head of the Department concerned
By reason of section 124 the High Court cannot compel any public officer to disclose communications made to him in official confidence if the officer considers that the public interest would suffer by the disclosure
By section 162 the High Court cannot inspect a document if it refers to matters of State
But these provisions do not constitute an invasion of the High Court s jurisdiction under Article 226
The writ jurisdiction of the High Court under that Article has to be exercised consistently with the laws made by competent legislatures within the area of their legislative power
I do not think that it is open to any High Court to say that the law may be otherwise valid but since it interferes with the High Court s power to undertake the fullest enquiry into the matter before it
the law becomes unconstitutional
The principles of res judicata and estoppel the conclusive presumptions of law and various provisions of substantive law deny a free play to courts in the exercise of their jurisdiction
These are not for that reason unconstitutional qua the High Court s jurisdiction under Article 226
Counsel for the respondents cited the parallel of section 14 of the which was struck down by this Court in A K Gupalan vs The State1
Sub section 1 of that section provided in substancethat no court shall except for certain purposes
allow any statement to be made or any evidence to be given before it of the substance of any communication of the grounds on which a detention order was made against any person or of any representation made by him
Sub section 2 of section 14 made it an offence for 1  411 any person to disclose or publish without the previous authorization of the Government any contents or matter purporting to be contents of any communication or recpresentation referred to in sub section 1
The right to enforce Article 22 of the Constitution was not suspended by any Presidential order when Gopalan s ease was decided and therefore the court was entitled to find whether that Article was complied with
The limits of judicial review have to be co extensive and commensurate with the right of an aggrieved person to complain of the inversion of his rights
Since in Gopalan s case it was open to the detenu to contend that the grounds of detention did not bear any connection with the order of detention the Court was entitled to examine the grounds in order to determine whether the plea of the detenu was well founded
As section 14 debarred the court from examining the material which it was entitled under the Constitution to examine it was declared ultra vires
See pages 130 131 217 218 244 285 and 333
In the instant ease the Presidential order deprives the respondents of their very locus standi and therefore section 16A9 cannot be said to shut out an inquiry which is other wise within the jurisdiction of the High Court to make
Reliance WAS also placed by the respondents on the decision of this Court in Mohd Maqbool Danmool vs State of Jammu and Kashmir  in which it was observed that the proviso to section 8 which was inserted by the Jammu and Kashmir Preventive Denotation Amendment Act 1967 would have been unconstitutional if it had the same effect as section 14 of the was found to have in Gopalan s case Damnoo s case did not involve any question of privilege at all and in fact the relevant file was produced by the Government for the perusal of the High Court
The case also did not involve any question under Article 3591 and the effect of a provision like section 16A9 was not even hypothetically considered the Court
The view of the Bombay High Court that section 16A9 may be read down so as to enable the court to examine the forbidden material is impossible to sustain
What use can a court make of material which it cannot disclose to the detenu and how can it form a judicial opinion on matters not disclose to a party before it The High Court at the highest could satisfy its curiosity by tasting the forbidden fruit but its secret scrutiny of the grounds and of the file containing the relevant information and material cannot enter into its judicial verdict
G I am therefore of the opinion that the challenge made by the respondents to the constitutionality of section 16A9 must fail
Section 18 need not detain me long because it merely declares that no person who is detained under the Act shall have any right to personal liberty by virtue of natural law or common law any
the natural law  theory was discarded in Kesavanadun Bharati s  1  1 1973 Supp
section C R I 412 case and likewise the common law theory was rejected in Makhan Singh s case
The section only declares what was the true law prior to its enactment on June 25 1975
The amendment of section 18 by the substitution of the words in respect of whom all order is made on purported to be made under section 3 in place of the words detained under this Act does not render the section open to a challenge on the ground of excessive delegation
The words purported to be made have been inserted in order to obviate the challenge that the detention is not in strict conformity with the MISA
Such a challenge is even otherwsie barred under the Presidential order
The object of the added provision is not to encourage the passing of lawless orders of detention but to protect during emergency orders which may happen to be S in less than absolute conformity with the MISA
The executive is bound at all times to obey the mandate of the legislative but the Presidential order bars during a certain period the right to complain of any deviation from that rule
In numerous cases detenus have been released by this Court and by the High Courts on
the ground that there is no nexus between the grounds of detention and the object of the law under which the order of detention is made or that the acts complained of are too distant in point of time to raise an apprehension that the past con duct of the detenu is likely to project itself into the future or that the ground are too vague for the formation even of subjective satisfaction or that irrelevant and extraneous considerations have materially influenced the mind of the detaining authority
On some few occasions detention orders have also been set aside on the ground of factual mala fides
An unconditional Presidential order obliterates this jurisprudence by striking at the very root of the matter
locus of the detenu is its chose in target and it deprives him of his legal capacity to move any court for the vindication of his rights to the extant that they arc mentioned in the Presidential order
In their passion for personal liberty courts had evolved carefully and laborously a sort of detention jurisprudence over the years with the sale object of ensuring that the executive does not transcend its duty under the law
In legal theory that obligation still remains but its violation will now furnish no cause of action
at least to an extent
and to a significant extent
Amidst the clash of arms and conflict of ideologies laws will now be silent but in times when the Nation is believed to be going through great strains and stresses it may be necessary to entrust sweeping powers to the State
And it is no smail comfort that those powers are granted with the consent of the Parliament
The people of this country are entitled to expect when they go to the ballot box that their chosen representatives will not willingly suffer an erosion of the rights of the people
And the Parliament
while arming the executive with great and vast powers of Government may feel fairly certain that such powers will be reasonably exercised
The periodical reviews of detention orders
the checks and counter checks which the law provides and above all 413 the lofty faith in democracy which ushered the birth of the Nation will h l hope eliminate all fear that great powers are capable of the greatest abuse
Ultimately the object of depriving a few of their liberty for a temporary period has to be to give to many the perennial fruits of freedom
I find it not so easy to summarize my conclusions in simple straightforward sentences
The many sided issues arising before us do not admit of a monosyllabic answer yes  or no 
All the same these broadly are my conclusions 1 The order issued by the President on June 27 1975 under Article 3591 of the Constitution does not suspend the fundamental principle that all executive action must have the authority of law to support it
Nor does the Presidential order give to the executive a clatter to disobey the laws made by the Parliament which is the supreme law making authority
2 The aforesaid Presidential order however deprives a person of his locus standi to move any court be it the Supreme Court or the High Court for the enforcement of his fundamental rights which are mentioned in the order
Such deprivation or suspension ensures during the period that the Proclamation of Emergency is in force or for such shorter period as may be specified in the order
3 The dominant purpose of the petitions filed by the respondents in the High Courts is to obtain an order of release from detention by enforcing the right to personal liberty
The purpose is not to obtain a mere declaration that the order of detention is ultra vires the Act under which it is passed
The former plea is barred by reason of the Presidential order
The latter plea is also barred because regard must be had to the substance of the matter and not to the form in which the relief is asked for
4 The Presidential order dated June 27 1975 baring investigation or inquiry into the question whether the order of detention is vitiated by mala fides factual or legal or whether it is based on extraneous considerations or whether the detaining authority had reached his subjective satisfaction validly on proper and relevant material
5 Whether or not Article 21 of the Constitution is the sole repository of the right to personal liberty in a petition filed in the High Court under Article 226 of the Constitution for the release of a person detained under the MISA no relief by way of releasing the detenu can be granted because no person has the legal capacity to move any court to ask for such 414 relief
The Presidential order takes away such legal capacity by including Article 21 within it
the source of the right to personal liberty is immaterial because the words conferred by which occur i Article 3591 and in the Presidential order are not words of limitation
6 The Presidential order does not bring about any amendment of Article 226 and is not open to challenge on that ground
7 The Presidential order neither bars the right of an accused to defend his personal liberty in the court of first instance or in a higher court nor does it bar the execution of decrees passed against the Government nor does it bar the grant of relief other or less than the release of the detenu from detention
8 Section 16A9 of the MISA is not unconstitutional on the ground that it constitutes an encroachment on the writ jurisdiction of the High Court under Article 226
There is no warrant for reading down that section so as to allow the court to inspect the relevant files to the exclusion of all other parties
9 Section 18 of the MISA does not suffer from the vice of excessive delegation and is a valid piece of legislation
And so we go back to The Zamora1  Rex vs Holliday2 Liversidge vs Anderson3 Greene vs Secretary of State 
A jurisdiction of suspicion is not a forum for objectivity
These who are responsible for national security must be the sole judges of what the national security requires However precious the personal liberty of the subject may be there is something for which it may well be to some extent sacrificed by legal enactment namely national success in the war or escape from national plunder or enslavement
As a result perhaps the only argument which the court can entertain is whether the authority which passed the order of detention is duly empowered to pass it whether the detenu is properly identified and whether on the face of the order the stated purpose of detention is within the terms of law
These questions in almost all cases will have an obvious answer
Counsel after counsel expressed the fear that during the emergency the executive may whip and strip and starve the detenu and if this be our judgment even shoot him down
Such misdeeds have not tarnished the record of Free India and I have a diamond bright diamond hard hope that such things will never come to pass
1 2   271
3 1942 A 206
4 l942 A 284
415 BHAGWATI J
These appeals by special leave raise issues of gravest constitutional importance
They affect personal liberty which is one of our most cherished freedoms and impinge on the rule of law which is one of the great principles that lies at the core of constitutional democracy and gives content to it
Does a Presidential order under Article 359 clause 1 specifying Article 21 silence the mandate of the law and take away personal liberty by making it unenforceable in a court of law or does judicial scrutiny of legality of detention stand untouched and unimpaired so that despite such Presidential order a person who is illegally detained can seek his freedom by invoking the judicial Process
That is the anodizing question before the Court
The facts giving rise to these appeals have been fully set out in the judgment of my Lord the Chief Justice and it is not necessary for me to reiterate them as nothing turns on the facts
None of the writ petitions out of which these appeals arise has in fact been finally disposed of on merits
Barring the writ petitions before the Rajasthan High Court and the Nagpur Bench of the Bombay High Court where one additional question has been considered the only question that has been decided in these writ petitions is as to their maintainability
in view of the Presidential order dated 27th June 1975 issued under Article 359 clause 1 of the Constitution
The High Courts of Allahabad Madhya Pradesh Andhra Pradesh Delhi Karnataka and Rajasthan and the Nagpur Bench of the Bombay High Court before whom these writ petitions were heard on the preliminary issue as to maintainability took the view that the Presidential order dated 27th June 1975 did not wholly bar the maintainability of these petitions but left open certain grounds of challenge which could yet be urged against the validity of the order of detention
These different High Courts were not agreed upon what were the grounds of challenge which were thus available to an applicant despite the Presidential order dated 27th June 1975
There were differences of opinion amongst them but for the purpose of the present appeals it is not necessary to refer to those differences as they are not material
The Rajasthan High Court and the Nagpur Bench of the Bombay High Court also considered the interpretation and validity of section 16A sub section 9 of the and while the Rajasthan High Court accepted the interpretation of that sub section canvassed on behalf of the Government and upheld its validity even on that interpretation the Nagpur Bench of the Bombay High Court held the sub section to be valid by reading it down so as not to exclude the power of the High Court under Article 226 of the Constitution to call for the grounds information and materials on which the order of detention was based
Since in the view of these High Courts the writ petitions filed by the detenus were maintainable though on certain limited grounds of challenge each of the writ petitions was directed to be set down for hearing on merits
There upon each of the aggrieved State Governments obtained special leave to appeal against the decision of the concerned High Court and that is how the present appeals have come before this Court
416 Two questions arise for consideration in these appeals
They have been formulated by the learned Attorney General appearing on behalf of the Union of India in the following terms 1 Whether in view of the Presidential order dated June 27 1975 under clause 1 of Article 359 any writ petition under Article 226 before a High Court for habeas corpus to enforce the right to personal liberty of a person detained under MISA on the ground that the order of detention or the continued detention is for any reason not under or in compliance With MISA is maintainable  2 If such a petition is maintainable what is the scope or extent of judicial scrutiny particularly in view of tile said Presidential order mentioning inter alia clause 5 of Article 22 and also in view of sub section 9 of section 16A of MISA So far as the second question is concerned it may be pointed out straightaway that the learned Attorney General with his usual candor conceded that if his first contention in regard to maintainability of a writ petition for habeas corpus is not accepted and the writ petition is held maintainable the area of judicial scrutiny would remain the same as laid down in the decisions of this Court subject only to the qualification that the grounds information and materials on which the order of detention is based would not be available either to the detenu or to the High Court by reason of suspension of enforcement of the right conferred by clause S of Article 22 and the enactment of section 16A sub section 9 of the 
The only point which would therefore require to be considered under the second question is in regard to the interpretation and validity of sub section 9 of section 16A Before we proceed to consider the first question which turns on the true interpretation and effect of the Presidential order dated 27th June 1975 it would help to place the problem in its proper perspective if we first examine what is an emergency and how institutions and procedures different from those in normal times are necessary to combat it
It would be both profitable and necessary to embark upon this inquiry because Article 359 clause 1 under which the Presidential order dated 27th June 1975 has been issued is a consequential provision which comes into operation when a Proclamation of emergency is issued by the President under Article 352
It is evident that a national emergency creates problems for a democracy no less than for other governments
A totalitarian Government may handle such a situation without embarrassment
But the apparent necessities evoked by danger often conflict gravely with the postulates of constitutional democracy
The question arises and that was a question posed by Abraham Lincoln on July 4 1861 can a democ 417 ratic constitutional government beset by a national emergency be strong enough to maintain its own existence without at the same time being so strong as to subvert the liberties of the people it has been instituted to defend
This question is answered affirmatively by the incontestable facts of history if we have regard to the experience of emergency governments of three large modern democracies the United States Great Britain and France
There is no reason why the Indian experience should be otherwise if the basic norms of constitutionalism in assumption of emergency powers are observed
What are these basic norms in a constitutional democracy and what is the purpose behind assumption of emergency powers are matters which I shall presently discuss
But before I do so let me first consider what are the different types of emergency which may plague the government of a country
There are three types of crisis in the life of a democratic nation three well defined threats to its existence both as nation and democracy
The first of these is war particularly a war to repel invasion when a State must convert its peace time political and social order into a war time fighting machine and over match the skill and efficiency of the enemy
There may be actual war or threat of war or preparations to meet imminent occurrence of war all of which may create a crisis situation of the gravest order
The necessity of concentration of greater powers in the Government and of contraction of the normal political and social liberties cannot be disputed in such a case particularly when the people are faced with a grim horror of national enslavement
The second crisis is threat or presence of internal subversion calculated to disrupt the life of the country and jeopardize the existing of the constitutional government
Such activity may stem from a variety of causes
Perhaps the most common is disloyalty to the existing form of government often accompanied by a desire to effect changes by vio1ent means
Another cause may be strong disaffection with certain government policies
Communal demands for States within the Federal on linguistic or religious lines may fall within this category
Or the presence of powerful lawless elements with perhaps no political motivation but for various reasons beyond the scope of ordinary machinery of the law may give rise to this problem
The third crisis one recognised particularly in modern times as sanctioning emergency action by constitutional government is break down or potential break down of the economy
It must be recognised that an economic crisis is as direct a threat to a nation s continuing constitutional existence as a war or internal subversion
These are three kinds of emergencies which may ordinarily imperil the existence of a constitutional democracy
Now it is obvious that the complex system of government of a constitutional democratic State is essentially designed to function under normal peaceful conditions and is often unequal to the exigencies of a national crisis
When there is an emergency arising out of a national 29 833 Sup CI76 418 crisis a constitutional democratic government has to be temporarily altered to whatever degree necessary to overcome the peril and restore normal conditions
This alteration invariably involves government of a stronger character
The government has to assume larger power in order to meet the crisis situation and that means that the people would have fewer rights
There can be no doubt that crisis government means strong and arbitrary government and as pointed out by Cecil Carr in his article on Crisis Legislation in Great Britain published during the Second World War in the eternal dispute between Government and liberty crisis means more government and less library
 In fact Scrutton LJ never a fulsome admirer of government departments made the classic remark in his judgment in Ronnfeldt vs Phillips  that war cannot be carried on according to the principles of Magna Carta and there must be same modification of the liberty of the subject in the interests of the State
The maxim salus populi suprema lex esto that is publicsafety is the highest law of all must prevail in times of crisis and the people must submit to temporary abdication of their constitutional liberties in order to enable the government to combat the crisis situation which might otherwise destroy the continued existence of the nation
While dealing with the emergency powers which may be assumed by a constitutional democracy to deal effectively with a national crisis it is necessary to refer to the celebrated writ of habeas corpus
It is the most renowned contribution of the English common law to the protection of human liberty
It is one of the most ancient writs known to the Common Law of England
It is a writ of immemorial antiquity throwing its roots deep into the genius of the Common Law
It is not necessary to trace the early history of this writ which is to be found in the decision of this Court in Kanu Sanyal vs District Magistrate Darjeeling  ors 2 Suffice it to state that by the 17th Century this writ had assumed great constitutional importance as a device for impugning the validity of arbitrary imprisonment by the executive and by invoking it a person unlawfully imprisoned could secure his release
As pointed out by Holdsworth in Vol
1 of his History of English Law its position as the most efficient protector of the liberty of the subject was unquestioned after the great Rebellion
It was for this reason that men began to assign as its direct ancestor the clauses of the Magna Carta which prohibited imprisonment without due process of law
This may not be strictly accurate but there can be no doubt that far more effective than any other remedy this writ helped to vindicate the right of freedom guaranteed by the famous words of the Magna Carta
The decision in Darnel s case3 was a set back in the struggle for liberty since it eroded to some extent the effectiveness of the writ by taking the view that a return that the arrest was by the special command of the King was a good and sufficient return to the writ which meant that a lawful cause of imprisonment was shown
But the Petition of Right 1627 overruled this decision by declaring such a case of imprisonment to 1 35 Times Law Reports 46
2  3 419 be unlawful
In the same way it was enacted in the Habeas Corpus A Act 1640 abolishing the Star Chamber that any person committed or imprisoned by order of the Star Chamber or similar bodies or by the command of the King or of the Council should have his habeas corpus
There were also various other defects which were revealed in course of time and with a view to remedying those defects and making the writ more efficient as an instrument of securing the liberty of the subject unlawfully detained reforms were introduced by the Habeas Corpus Act 1679 and when even these reforms were found insufficient the Habeas Corpus Act 18 1 6 was enacted by which the benefit of the provisions of the Habeas Corpus Act 1679 was made available in cases of civil detention and the judges were empowered to inquire into the truth of the facts set out in the return to the writ
The machinery of the writ was thus perfected by legislation and it became one of the most important safeguards of the liberty of the subject and as pointed out by Lord Halsbury LC in Cox vs Hakesi it has throughout been jealously maintained by courts of law as a check upon the illegal usurpation of power by the executive at the cost of the liege 
Now in the United States of America the right to this important writ of habeas corpus by means of which the liberty of a citizen is protected against arbitrary arrest is not expressly declared in the Constitution but it is recognised in Article I Placitum 9 clause 2 of the Constitution which declares that The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it
Cooley in his General Principles of Constitutional Law in the USA points out The privilege of the writ consists in this that when one complains that he is unlawfully imprisoned or deprived of his liberty he shall be brought without delay before the proper court or magistrate for an examination into the cause of his detention and shall be discharged if the detention is found to be unwarranted
The suspension of the privilege consists in taking away this right to an immediate hearing and discharge and in authorising arrests and detentions without regular process of law
 The suspension of the privilege of the writ does not legalise what is done while it continues it merely suspends for the time being the remedy of the writ
The decision of Chief Justice Taney in ex P Merryman2 contains the leading American discussion of the suspension of the writ of habeas corpus in a temporary emergency
In the spring of 1861
the eve of the American Civil War President Lincoln was confronted by a state of open insurrection in the State of Maryland following the fall of Fort Sumter on April 15
Railroad communication to the northern United States had been severed by the Marylanders on April 20 and the Sixth Massachusetts Militia reached Washington only after fighting its way through the City of Baltimore
In these circumstances and under the increasing threat of secession President Lincoln issued a Proclamation on April 27 authorising General Pinfield Scot to suspend H 1 1890 15 A C506
2 17 Fed
144 C C D Md 1861
420 the writ of habeas corpus at any point on or in the vicinity of the military line which is now or shall be used between the City of Philadelphia and the City of Washington
Another Proclamation of July 2 extended this power to a similar area between Washington and New York
John Merryman who was a Marylander openly recruited a company of soldiers to serve in the Confederate Army and became their drill master and in consequence he was arrested by the army of Lincoln and held prisoner in Fort McHenry
He applied for a writ of habeas corpus and despite the Presidential authorisation suspending the writ the Supreme Court presided over by Chief Justice Taney granted the writ on the view that the power to suspend the privilege of the writ is a legislative power and the President cannot exercise it except as authorised by law
History tells us that President Lincoln declined to implement the order of the Supreme Court and this would have led to a major constitutional crisis but the Congress hastened to resolve the controversy by enacting legislation authorising the President to suspend the privilege of the writ whenever in his judgment the public safety requires it
It would therefore be seen that even in United States of America where personal liberty is regarded as one of the most prized possessions of man the Congress has the power to suspend the writ of habeas corpus and this power has been exercised in the past though very sparingly
So also in Great Britain the writ of habeas corpus which as May points out is unquestionably the first security of liberty and which protects the subject from unfounded suspicions from aggressions of power has been suspended again and again in periods of public danger or apprehension
Parliament convinced of the exigencies of the situation has on several occasions suspended for the time being the rights of individuals in the interests of the State
This of course has had the effect of arming the executive with arbitrary power of arrest by making it impossible for a person detained to secure his release even if his detention is illegal
It has resulted in great diminution in the interest of personal freedom for suspension of habeas corpus is verily in substance and effect suspension of the right of personal liberty granted in Magna Carta But it has been justified on the ground that whatever be the temporary danger of placing such power in the hands of the Government it is far less than the danger with which the constitution and the society are threatened or to put it differently when danger is imminent the liberty of the subject must be sacrificed to the paramount interests of the State
Moreover on each occasion when the writ of habeas corpus has been suspended the suspension of the writ has invariably been followed by an Act of Indemnity in order to protect officials concerned from the consequences of any incidental illegal acts which they might have committed under cover of suspension of the propogative writ
During the period of emergency many illegalities might have been committed by the executive in order to deal with a crisis situation and all such illegalities have been retrospectively legalised by an Indemnity Act
I may now turn to consider the emergency provisions under our Constitution
Unlike many of the older constitutions our Constitution speaks in detail on the subject of emergency in Part XVIII
That Part 421 consists of a fasciculus of Articles from Article 352 to Article 360
A Article 352 enacts that if the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened whether by war or external aggression or internal disturbance he may by Proclamation make a declaration to that effect and such Proclamation is required to be laid before each House of Parliament and approved by resolutions of both Houses before the expiration of two months
It is not necessary that there should be actual occurrence of war or external aggression or internal disturbance in order to justify a Proclamation of Emergency
It is enough if there is imminent danger of any such crisis
It will be seen that this Article provides for emergencies of the first two types mentioned above
The third type of emergency threatening the financial stability of India or any part thereof is dealt with in Article 360 but we are not concerned with it and hence it is not necessary to consider the provisions of that Article
So far as the emergencies of the first two types are concerned the constitutional implications of a declaration of emergency under Article 352 are much wider than in the United States or Great Britain
These are provided for in the Constitution itself
In the first place Article 250 provides that while a Proclamation of Emergency is in operation Parliament shall have the power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List which means that the federal structure based on separation of powers is put out of action for the time being
Secondly Article 353 declares that during the time that Proclamation of Emergency is in force the executive power of the Union of India shall extend to the giving of direction to any State as to the manner in which the executive power thereof is to be exercised and this provision also derogates from the federal principle which forms the basis of the Constitution
If there is non compliance by any State with the directions given by the Union under Article 353 such non compliance may attract the provisions of Article 356 and President s rule  may be imposed under that Article and in such event
Parliament may under Article 357 clause 1 confer on the President the power of the legislature of the  State to make laws or to delegate such legislative power to any other authority
This not only contradicts the federal P principle but also strikes at the root of representative form of Government
Then there are two Articles Article 358 and Article 359 which set out certain important consequences of Proclamation of Emergency and they read as follows 358
While a Proclamation of Emergency is in operation nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take but any law so made shall to the extent of the incompetency
cease to have effect as soon as the Proclamation ceases to operate except as respects things done or omitted to be done before the law so ceases to have effect 359
1 Where a Proclamation of Emergency is in operation the President may by order declare that the right to 422 move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the order
1A While an order made under clause 1 mentioning any of the rights conferred by Part III is in operation nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take but any law so made shall to the extent of the incompetency cease to have effect as soon as the order aforesaid ceases to operate
except as respects things done or omitted to be done before the law so ceases to have effect
2 An order made as aforesaid may extend to the whole or any part of the territory of India
3 Every order made under clause 1 shall as soon as may be after it is made be laid before each House of Parliament
 It may be pointed out that clause 1A did not form part of Article 359 when the Constitution was originally enacted but it was introduced with retrospective effect by the Constitution Thirty eighth Amendment Act 1975
We are not directly concerned in these appeals with the interpretation of Article 358 and clause 1A of Article 359 but in order to arrive at the proper meaning and effect of clause 1 of Article 359 it will be relevant and somewhat useful to compare and contrast the provisions of Article 358 and clause 1A of Article 35 on the one hand and clause 1 of Article 359 on the other
It would be convenient at this stage to set out the various steps taken by the Government of India from time to time in exercise of the emergency powers conferred under Part XVIII of the Constitution
When hostilities broke out with Pakistan in the beginning of December 1971 the President issued a Proclamation of Emergency dated 3rd December 1971 in exercise of the powers conferred under clause 1 of Article 352 declaring that a grave emergency exists whereby the security of India is threatened by external aggression
This was followed by two orders one dated 5th December 1971 and the other dated 23rd December 1974 issued by the President under clause 1 of Article 359
It is not necessary to reproduce the terms of these two Presidential orders since they were subsequently rescinded by a Presidential order dated 25th December 1975 issued under clause 1 of Article 359
Whilst the first Proclamation of Emergency dated 3rd December 1971 based on threat of external aggression continued in force the President issued another Proclamation of Emergency dated 25th June 1975 declaring that a grave emergency exists whereby the security of India is threatened by internal disturbance
This Proclamation of Emergency was also issued in exercise of the powers confer red under Article 352 clause 1 and it was followed by a fresh Presi 423 dential order dated 27th June 1975 under clause 1 of Article 359
A The President by this order made under clause  l  of Article 359 declared that the right of any person including a foreigner to move any court for the enforcement of the rights conferred by Article 14 Article 21 and Article 22 of the Constitution and all proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the Proclamations of Emergency made under clause 1 of Article 352 of the Constitution on the 3rd December 1971 and on the 25th June 1975 are both in force
The writ petitions out of which the present appeals arise were filed after the issue of this Presidential order and it was on the basis of this Presidential order that it was contended on behalf of the State Governments and the Union of India that the writ petitions were not maintainable since by moving the writ petitions the detenus sought enforcement of the right of conferred by Article 21
This contention was substantially negatived by the High Courts and hence the present appeals were brought by the State Governments and the Union of India raising the same contention as to the maintainability of the writ petitions
It may be pointed out that whilst the present appeals were pending before this Court the President issued another order dated 8th January 1976 under clause 1 of Article 359 suspending the enforcement of the rights conferred by Article 19
This Presidential order is not material but I have referred to it merely for the sake of completeness
Now the orders of detention challenged by the detenus in the different writ petitions were all expressed to be made in exercise of the powers conferred by section 3 of the 
The detenus challenged them on various grounds namely the orders of detention were not in accordance with the provisions of the Act they were not preceded by the requisite subjective satisfaction which constitutes the foundation for the making of a valid order of detention they were actuated by malice in law or malice in fact or they were outside the authority conferred by the Act
The substance of these grounds according to the Union of India and the State Governments was that by these orders of detention the detenus were deprived of their personal liberty otherwise than in accordance with the procedure established by law
This constituted infraction of the fundamental right conferred by Article 21 and the writ petitions of the detenus were therefore clearly proceedings for enforcement of that fundamental right
But by reason of the Presidential order dated 27th June 1975 the right to move any court for enforcement of the fundamental right conferred by Article 21 was suspended during the period when the Proclamations of Emergency dated 3rd December 1971 and 25th June 1975 were in force and therefore the detenus had no locus standi to file the writ petitions and the writ petitions were barred
The answer to this contention given on behalf of the detenus was and here we are setting out only the broad general argument that Article 21 merely defines an area of free action and does not confer any right and hence it is outside the scope and ambit of Article 359 clause  I  and consequently outside the Presidential order itself
It was also urged on behalf of the detenus that it is a basic principle of the rule of 424 law that no member of the executive can interfere with the liberty of a person except in accordance with law
The principle of the rule of law was recognised and declared by the Judicial Committee of the Privy Council in Eshugbayi Eleko vs Officer Administering the Government of Nigerial and it was uniformly administered by courts in India as the law of the land prior to the coming into force of the Constitution
It was consequently law in for in the territory of India immediately before the commencement of the Constitution and by reason of Article 372 it continued in force ever after the coming into force of the Constitution and since then it has been repeatedly recognised and adopted by this Court as part of Indian jurisprudence in several decided cases
Moreover apart from being continued under Article 372 as law in force this principle of the rule of law stems from the constitutional scheme itself which is based on the doctrine of distribution of powers amongst different bodies created by the Constitution
Under the constitutional scheme the executive is a limited executive and it is bound to act in accordance with law and not go against it
This obligation of the executive not to act to the detriment of a person without the authority of law can be enforced under Article 226 by issue of a writ for any other purpose
When a detenu files a petition under Article 226 challenging the validity of the order of detention on the ground that it is not in accordance with the Act or is outside the authority conferred by the Act he seeks to enforce this obligation against the State Government and the suspension of enforcement of the fundamental right under Article 21 does not affect the maintainability of his writ petition
The detenus also contended that in any event the right to personal liberty was a statutory right and the suspension of the fundamental right conferred by article 21 did not carry with it suspension of the enforcement of this statutory right
The Union of India and the State Governments rejoined to this contention of the detenus by saying that Article 21 was the sole repository of the right of personal liberty and there was no common law or statutory right in a person not to be deprived of his personal liberty except in accordance with law apart from that contained in Article 21 and therefore the writ petitions filed by the detenus were in substance and effect petitions for enforcement of the right conferred by Article 21 and hence they were not maintainable
Before we proceed to consider these contentions which have been advanced before us it is necessary to remind ourselves that the emergency provisions in Part XVIII of the Constitution make no distinction whether the emergency is on account of threat to the security of India by war or external aggression or on account of threat to the security of India by internal disturbance
The same provisions are applicable alike in both situations of emergency irrespective of the reason for which emergency has been declared
The legal consequences are the same and therefore whatever interpretation we place on Article 359 clause 1 in the present case which relates to declaration of emergency on account of internal disturbance would apply equally where the emergency is declared on account of war or external aggression by a hostile power
If we take the view that the Presidential order under Article 359 clause 1 suspending enforcement of 1  425 Article 21 does not bar the remedy of a detained person to seek his release on the ground that his detention is illegal it would be open to a detained person to challenge the legality of his detention even when there is emergency on account of war or external aggression because barring Article 359 there is no other provision in the Constitution which can even remotely be suggested as suspending or taking away the right to move the Court in cases of illegal detention
The consequence would be that even in a perilous situation when the nation is engaged in mortal combat with an enemy the courts would be free to examine the legality of detention and even if a detention has been made for efficient prosecution of the war or protecting the nation against enemy activities it would be liable to be struck down by the courts if some procedural safeguard has been violated though it may be bona fide and through inadvertence
This would imperil national security and the Government of the day would be helpless to prevent it
The question is whether such is the interpretation of Article 359 clause 1
Of course if that is the only possible interpretation we must give effect to it regardless of the consequence leaving it to the constituent authority to amend the Constitution if it so thinks fit
But we may ask ourselves could the Constitution makers have intended that even in times of war or external aggression there should be no power in the President as the head of the Nation to bar judicial scrutiny into legality of detention
It may be pointed out that even in the United States of America the President has power under Article I Placitum 9 clause 2 of the United States Constitution to suspend the privilege of the writ of habeas corpus when in cases of rebellion or invasion the public safety may require it
The British Parliament has also on several occasions in the past suspended the writ of habeas corpus by legislative enactment though in limited classes of cases
The Constitution makers were obviously aware that even in these countries which are essentially democratic in character and where the concept of constitutional government has had its finest flowering the power to exclude judicial review of legality of detention through the means of a writ of habeas corpus has been given to the Supreme legislature or the head of the State and they must have realised that this was a necessary power in times of national peril occasioned by war or external aggression
Could the Constitution makers have intended to omit to provide for conferment of this power on the head of the State in our Constitution  We must also disabuse our mind of any notion that the emergency declared by the Proclamation dated 25th June 1975 is not genuine or to borrow an adjective used by one of the lawyers appearing on behalf of the interveners is phoney 
This emergency has been declared by the President in exercise of the powers conferred on him under Article 352 clause 1 and the validity of the Proclamation dated 25th June 1975 declaring this emergency has not been assailed before US
Mr Shanti Bhushan and the other learned counsel appearing on behalf of the detenus in fact conceded before us that for the purpose of the present appeals we may proceed on the assumption that the declaration of emergency under the Proclamation dated 25th June 1975 is valid
But if this emergency is taken as valid we must equally presume that 426 it is genuine and give full effect to it without any hesitation or reservation
With these prefatory observations I will now turn to examine clause 1 of article 359 under which the Presidential order has been issued
The language of this clause is clear and explicit and does not present any difficulty of construction
It says that where a Proclamation of Emergency is in operation the President may by order suspend the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order
Any or all of the rights conferred by Part III can find a place in the Presidential order
Whilst the Presidential order is in force no one can move any court for the enforcement of any of the specified fundamental rights
I shall presently discuss whether Article 21 can be said to confer any right but assuming it does and as will be evident shortly that is my conclusion the right to move any court for the enforcement of the fundamental right guaranteed by Article 21 may be suspended by specifying it in the Presidential order
When that is done no one can move any court and any court would mean any court of competent jurisdiction including the High Courts and the Supreme Court for enforcement of the right conferred by Article 21
The words the right to move any court for the enforcement are wide enough to include all claims made by citizens in any court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is in substance seeking to enforce any of the specified fundamental rights
Vide Makhan Singh vs State of Punjab1
Therefore there can be no doubt that in view of the Presidential order which mentions Article 21 the detenus would have no locus standi to maintain their writ petitions if it could be shown that the writ petitions were for enforcement of the right conferred by Article 21
That should logically take me straight to a consideration of the question as to what is the scope and content of the right conferred by article 21 for without defining it it would not be possible to determine whether the right sought to be enforced by the detenus in their writ petitions is the right guaranteed under Article 21 or any other distinct right
But before I examine this question it would be convenient first to deal with clause 1A of Article 359 and ascertain its meaning and effect
Clause 1A of article 359 did not find a place in the Constitution when it was originally enacted but it was inserted with retrospective effect by the Constitution Thirty eighth Amendment Act 1975
It provides that while an order made under cl
1 of Article 359 mentioning any of the rights conferred by Part III is in operation nothing in that Part conferring those rights shall restrict the power of the State to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take
It will be noticed that the language of cl
1A of article 359 is in the same terms as that of Article 358 and the decisions interpreting Article 358 would therefore afford considerable guidance in the interpretation of cl
1A of article 359
But before I 1 1964 4 section C R 797
427 turn to those decisions let me try to arrive at the proper meaning of that clause on a plain interpretation of its language
In the first place it is clear that clause 1A of article 359 is prospective in its operation for it says that while a Presidential order is in operation nothing in the Articles mentioned in the Presidential order shall restrict the power of the State to make any law or to take any executive action which the State would but for the provisions contained in Part III be competent to make or to take
This clause does not operate to validate a legislative provision or executive action which was invalid because of the constitutional inhibition before the Proclamation of Emergency
Secondly it may be noted that the fundamental rights operate as restrictions on the power of the State which includes the executive as well as the legislature
When a Presidential order is issued under article 359 clause 1 the fundamental right mentioned in the Presidential order is suspended so that the restriction on the power of the executive or the legislature imposed by the fundamental right is lifted while the Presidential order is in operation and the executive or the legislature is free to make any law or to take any action which it would but for the provisions contained in Part III be competent to make or to take
The words but for the provisions contained in that Part that is but for the fundamental rights means if the fundamental rights were not there
The question which has therefore to be asked is if the fundamental rights were not there in the Constitution would the executive or the legislature be competent to make the impugned law or to take the impugned executive action  If it could it would not be restricted from doing so by reason of the particular fundamental right mentioned in the presidential order
The Presidential order would therefore have the effect of enlarging the power of the executive of the legislature by freeing it from the restriction imposed by the fundamental right mentioned in the Presidential order but it would not enable the legislature or the executive to make any law or to take any executive action which it was not otherwise competent to make or to take
Now it is clear that if the fundamental rights were not there in the Constitution the executive being limited by law would still be unable to take any action to the prejudice of a person except by authority of law and in conformity with or in accordance with law and therefore even if the Presidential order mentions article 21 clause 1A of Article 359 would not enable the executive to deprive a person of his personal liberty without sanction of law and except in conformity with or in accordance with law
If an order of detention is made by the executive without the authority or law it would be invalid and its invalidity would not be cured by clause 1A of Article 359 because that clause does not protect executive action taken without lawful authority
An unlawful order of detention would not be protected from challenge under Article 21 by reason of clause 1A of Article 359 and the detenu would be entitled to complain of such unlawful detention as being in violation of Article 21 except in so far as his right to move the court for that purpose may be held to have been taken away by clause 1 of Article 359
This interpretation of clause 1A of Article 359 is clearly supported by the decision of this Court in State of Madhya Pradesh vs 428 Thakur Bharat Singhl and the subsequent decisions following it which relate to the interpretation of the similarly worded Article 358
What happened in Bharat Singh s case supra was that whilst the Proclamation of Emergency dated October 20 1962 was in operation the State Government made an order under sub section 1 of section 3 of the Madhya Pradesh Public Security Act 1959 directing that Bharat Singh shall not be in any place in Raipur District and shall immediately proceed to and reside in Jhabua
Bharat Singh challenged the validity of the order inter alia on the ground that sub section 1 of section 3 of the Act infringed the fundamental rights guaranteed under clauses d and e of Article 191
The State Government sought to meet the challenge by pleading the bar of Article 358
But this Court held that Article 358 had no application because sub section 1 of section 3 of the Act which was impugned in the petition was a pre emergency legislation
This Court speaking through Shah J observed Article 358 which suspends the provisions of article 19 during an emergency declared by the President under article 352 is in terms prospective after the proclamation of emergency nothing in article 19 restricts the power of the State to make laws or to take any executive action which the State but for the provisions contained in Part III was competent to make or take
Article 358 however does not operate to validate a legislative provision which was invalid because of the constitutional inhibition before the proclamation of emergency This Court accordingly proceeded to consider the validity of section 3 sub section 1 of the Act and held that clause b of that sub section was unconstitutional as it infringed the fundamental rights under clauses d and e of article 191 and if it was void before the proclamation of Emergency it was not revived by the Proclamation
But on this view another contention was put forward on behalf of the State Government and that was that Article 358 protects not only legislative but also executive action taken after the Proclamation of Emergency and therefore executive action taken by the State would not be liable to be challenged on the ground that it infringes the fundamental rights under article 19 and consequently the order of the State Government though made under void law was protected against challenge under article 19
This contention was also rejected by the Court in the following words In our judgment the argument involves a grave fallacy
All executive action which operates to the prejudice of any person must have authority of law to support it and the terms of article 358 do not detract from that rule
Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others 
it merely provides that so long as the proclamation of emer 1  429 gency subsists laws may be enacted and executive action may be taken in pursuance of lawful authority which if the provisions of article 19 were operative would have been invalid
The view taken by the Court was that it is only where executive action ii taken in pursuance of lawful authority that it is immune from challenge under article 19 and in such a case even if it conflicts with the fundamental rights guaranteed under that Article it would be valid But where executive action is taken without lawful authority as for example where it is taken without the authority of any law at all or in pursuance of a law which is void it is not protected from challenge under article 19 by Article 358 and it would be void to the extent it violates article 19
The same view was taken by this Court in District Collector of Hyderabad vs Ms Ibrahim Co1 where this Court said without referring expressly to the decision in Bharat Singh s case supra that i  the executive order immune from attack is only that order which the State was competent but for the provisions contained in Art 19 to make and that executive action of the State Government which is otherwise invalid is not immune from attack merely because the Proclamation of Emergency is in operation when it is taken
The reference here was to immunity from attack under article 19 and it was held that executive action which was contrary to law and hence invalid was not protected from attack under article 19 by reason of article 358
So also in Bennett Coleman  Co vs Union of India2 this Court referred to the decisions in Bharat Singh  case supra and Ibrahim s case supra and observed Executive action which is unconstitutional is immune during Proclamation of Emergency
During the Proclamation of Emergency article 19 is suspended
But it would not authorise the taking of detrimental executive action during the emergency affecting fundamental rights in article 19 without any legislative authority or any purported exercise of power conferred by any pre emergency law which was invalid when enacted
This Court also said to the same effect in Shree Meenakshi Mills Ltd vs Union of India3  if it can be shown that the executive action taken during the emergency has no authority of a valid law its constitutionality can be challenged
These observations clearly show that where executive action is taken without any legislative authority or in pursuance of a law which is void it would not be protected by article 358 from challenge under article 19 and it would be unconstitutional to the extent to which it conflicts with that Article
If this be the interpretation of article 358 as laid down in the decisions of this Court a fortiori a like interpretation must be placed on clause 1A of article 359 as both are closely similar in form as well as language
It must therefore be held that even though a Presidential order issued under clause 1 of article 359 mentions article 21 where it is found that a detention has not been made in pursuance of lawful 1 2 19731 2 section C R 757 3 19741 2 section C R 398
430 authority or in other words the detention is without the authority of law whether by reason or there being no law at all or by reason of the law under which the detention is made being void clause  1A of article 359 would not protect it from challenge under article 21 and it would be in conflict with that Article
The only question then would be whether the detenu would be entitled to challenge the validity of tile detention as being in breach of article 21 in view of clause 1 of article 353 read with the Presidential order mentioning article 21
Now at the outset a contention of a preliminary nature was advanced by Mr Shanti Bhushan learned Advocate appearing on behalf of some of the detenus that clause 1 of article 359 can have no operation in cases where a detenu seeks to enforce his right of personal liberty by challenging the legality of his detention
Mr Shanti Bhushan contended and in this contention he was strongly supported by Mr Jethmalani that personal liberty is not a conglomeration of positive rights but is merely a negative concept denoting an area of free action to the extent to which law does not curtail it or authorise its curtailment and such a negative right cannot by its very nature be the subject of conferment under article 21
The argument of counsel based on this contention was that when article 359 clause 1 speaks of suspension of the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order it cannot include reference to the right of personal liberty in article 21 because it cannot be said of such a right that it is conferred by article 21
It was urged that article 21 cannot therefore appropriately find a place in a Presidential order under clause l of article 359 and even if it is erroneously mentioned there it can have no legal sequitur and cannot give rise to the consequences set out in clause 1 of article 359
This argument was sought to be supported by reference to two well known text books on jurisprudence one by Salmond and the other by Holland and the Declaration of the Rights of Man and the Citizen adopted by the French National Assembly was also relied upon for this purpose
There is however no merit in this argument
The words rights conferred by Part III  cannot be read in isolation nor can they be construed by reference to theoretical or doctrinaire considerations
They must be read in the context of the provisions enacted in Part III in order to determine what are the rights conferred by the provisions in that Part
Part III is headed  Fundamental Rights and it deals with fundamental rights under seven heads namely right to equality right to freedom right against exploitation right to freedom of religion cultural and educational rights right to property and right to constitutional remedies
articles 19 to 22 occur under the heading Right to Freedom and what is enacted in article 21 is a right namely the right to life and personal liberty
It is true that article 21 is couched in negative language but it is axiomatic that to confer a right it is not necessary to use any particular form of language
It is not uncommon in legislative practice to use negative language for conferring a right
That is often done for lending greater emphasis and strength to the legislative enactment
One instance may be found in section 298 sub section
1 of the Government of India Act 1935 which provided that no subject of His Majesty domiciled in India shall on 431 grounds only of religion place of birth descent colour or any of them A be ineligible for office under the Crown in India or be prohibited on any such grounds from acquiring holding or disposing of property or carrying on any occupation trade business or profession in British India
Though this provision was couched in negative language the Judicial Committee of the Privy Council in Punjab Province vs Daulat Singh1 construed it as conferring a right on every subject of His Majesty domiciled in India
B Similarly article 14 also employs negative language and yet it was construed to confer a fundamental right on every person within the territory of India section R Das CJ pointed out in Basheshar Nath vs The Commissioner of Income Tax Delhi  Rajasthan2 that it is clear from the language of article 14 that The command of that Article is directed to the State and the reality of the obligation thus imposed on the State is the measure of the fundamental right which every person within the territory of India is to enjoy emphasis supplied
Article 31 clause 1 is also couched in negative language it is almost in the same form as Article 21
Speaking about Article 31 section R Das J Observed in State of Bihar vs Maharajadhiraj Kameshwar Singh of Dharbhanga  ors3
It confers a fundamental right in so far as it protects private property from State action
The only limitation put upon the State action is the requirement that the authority of law is prerequisite for the exercise of its power to deprive a person of his property
This confers some protection on the owner in that he will not be deprived of his property save by authority of law and this protection is the measure of the fundamental right
It is to emphasise this immunity from State action as a fundamental right that the clause has been worded in negative language 
 emphasis supplied If Article 31 1 by giving a limited immunity from State action confers a fundamental right it should follow equally on a parity of reasoning that Article 21 also does so
In fact this Court pointed out in so many terms in P D Shamdasani vs Central Bank of India Ltd4 that clause 1 of article
31 is a declaration of fundamental right of private property in the same negative form in which Article 21 declares the fundamental right to life and liberty
Then again in R C Cooper v Union of India5 this Court in a majority judgment to which ten out of eleven judges were parties said  it is necessary to bear in mind the enunciation of the guarantee of fundamental rights which has taken different forms
In some cases it is an express declaration of a guaranteed right article 291 301 26 25 and 32 in others to ensure protection of individual rights they take specific forms of restrictions on State action legislative or executive articles 14 15 16 20 21 221 27 and 28 The enunciation of rights either express or by implication does not follow a uniform pattern
But one thread runs through 1 73 Indian Appeals 59
2 1959 Supp
I section C R 529
3 at p 988
4  5 119701 3 section C R 530
432 them they seek to protect the rights of the individual or groups of individuals against infringement of those rights within specific limits
Part Ill of the Constitution weaves a pattern of guarantees on the texture of basic human rights
 This statement of the law establishes clearly and without doubts that Article 21 confers the fundamental right of personal liberty
Let us for a moment consider what would be the consequences if article 21 were construed as not conferring a right to personal liberty
Then there would be no fundamental right conferred by article 21 and even if a person is deprived of his personal liberty otherwise than in accordance with the procedure established by law and there is infringement of article 21 such person would not be entitled to move the Supreme Court for a writ of habeas corpus under article 32 for that Article is available only for enforcement of the rights conferred by Part III
That would be a startling consequence as it would deprive the Supreme Court of a wholesome jurisdiction to protect the personal liberty of an individual against illegal detention
Let it not be for gotten that the Supreme Court has exercised this jurisdiction in a large number of cases over the last 25 years and set many detenus at liberty where it found that they were illegally detained
All this exercise of jurisdiction in the past would be rendered illegal and void
Ever since the commencement of the Constitution this Court has always regarded Article 21 as conferring the fundamental right of personal liberty which can be enforced in this Court by a petition under Article 32 and there is no justification for departing from this well settled constructional position
What then is the scope and ambit of this fundamental right conferred by Article 21  The first question that arises in this connection is what is the meaning and content of the word personal liberty  in this Article  This question came up for consideration before a Bench of six judges of this Court in Kharak Singh vs State of UP  Ors1
The majority judges took the view that personal liberty  is used in the Article as a compendious term to include within itself all the varieties of rights which go to make up the personal liberties  of man other than those dealt with in the several of clauses of Article 191
In other words while Article 191 deals with particular species or attributes of that freedom personal liberty  in Article 21 takes in and comprises the residue
The minority judges however disagreed with this view taken by the majority and explained their position in the following words No doubt the expression personal liberty  is a comprehensive one and the right to move freely is an attribute of that freedom personal liberty
It is said that the freedom to move freely is carved out of personal liberty and therefore the expression personal liberty  in Article 21 excludes that attribute
In our view this is not a correct approach
Both are independent fundamental rights
though there is overlapping
There is no question of one being carved out of another
The fundamental right of life and personal liberty have many attributes and some of them are found in Article 19
If a person s fundamental right under Article 21 is infringed the State can rely upon a law 1 1964 1 section C R 332 433 to sustain the action but that cannot be a complete answer unless the said law satisfies the test laid down in Article 192 so far as the attributes covered by Article 191 are concerned
 There can be no doubt that in view of the decision of this Court in R C Cooper s case supra the minority view must be regarded as correct and the majority view must be held to have been overruled
No attribute of personal liberty can be regarded as having been carved out of Article 21
That Article protects all attributes of personal liberty against executive action which is not supported by law
lt is not necessary for the purpose of the present appeals to decide what those attributes are or to identify or define them
It is enough to say that when a person is detained there is deprivation of personal liberty within the meaning of Article 21
Now Article 21 gives protection against deprivation of personal liberty but what is the nature and extent of this protection  In the first place it may be noted that this protection is only against State action and not against private individuals
Vide P D Shamdasani vs Central Bank of India Ltd supra and Smt
Vidya Verma vs Dr Shiv Narainl
Secondly it is clear from the language of article 21 that the protection it secures is a limited one
It says and I am quoting here only that part of the Article which relates to personal liberty that no one shall be deprived of his personal liberty except by the procedure prescribed by law
The meaning of the word law  as used in this Article came to be considered by this Court in A K Gopalan vs State of Madras2 and it was construed to mean enacted law  or State law 
Kania CJ observed It is obvious that law must mean enacted law and to the same effect spoke Patanjali Sastri J when he said In my opinion law  in article 21 means positive or State made law  
So also Mukherjee J said that his conclusion was that in article 21 the word law  has been used in the sense of State made lawand Das J too expressed the view that law in article 21 must mean State made law
The only safeguard enacted by Article 21 therefore is that a person cannot be deprived of his personal liberty except according to procedure prescribed by State made law
If a law is made by the State prescribing the procedure for depriving a person of his personal liberty and deprivation is effected strictly in accordance with such procedure the terms of Article 21 would be satisfied and there would be no infringement or the right guaranteed under that Article
Now based on the phraseology except according to procedure established by law in Article 21 an argument was advanced on behalf of the detenus that it is only where procedure prescribed by the law as not been followed in making the order of detention that Article 21 is attracted and the right conferred by that Article is breached and not where an order of detention is made without there being any law at all or where there is a law outside the authority conferred by it
It was urged that where an order of detention is challenged as mala 1  2  833 SCI76 434 fide or as having been made without the requisite subjective satisfaction the challenge would not be on the ground of breach of the procedure prescribed by the Act but it would be on the ground that the order of detention is outside the authority of the Act and such a challenge would not be covered by Article 21
This argument is in my opinion wholly unsustainable
It is clear on plain natural construction of its language that Article 21 imports two requirements first there must be a law authorising deprivation of personal liberty and secondly such law must prescribe a procedure
The first requirement is indeed implicit in the phrase except according to procedure prescribed by law
When a law prescribes a procedure for depriving a person of personal liberty it must a fortiori authorise such deprivation
Article 21 thus provides both substantive as well as procedural safeguards
This was pointed out by Patanjali Sastri J in A K Gopalan vs State of Madras supra at page 195 of the Report where the learned Judge said If article 21 is to be understood as providing only procedural safeguards where is the substantive right to personal liberty of non citizens to be found in the Constitution  Are they denied such right altogether  If they are to have no right of personal liberty why is the procedural safeguard in article 21 extended to them  And where is that most fundamental right of all the right to life provided for in the Constitution The truth is that article 21 presents an example of the fusion of procedural and substantive rights in the same provision the first and essential step in a procedure established by law for such deprivation must be a law made by a competent legislature authorising such deprivation
 Mahajan J also pointed out in the same case at page 229 of the Report Article 21 in my opinion lays down substantive law as giving protection to life and liberty inasmuch as it says that they cannot be deprived except according to the procedure established by law in other words it means that before a person can be deprived of his life or liberty as a condition precedent there should exist some substantive law conferring authority for doing so and the law should further provide for a mode of procedure for such deprivation section R Das J too spoke in the same strain when he negatived the argument that personal liberty as a substantive right is protected by Article 191 and article 21 gives only an additional protection by prescribing the procedure according to which that right may be taken away
 It would therefore be seen that both the safeguards of Article 21 substantive as well as procedural have to be complied with in order that there should be no infraction of the right conferred by that Article
Where there is a law authorising deprivation of personal liberty but a person is detained otherwise than in conformity with the procedure prescribed by such law it would clearly constitute 435 violation of Article 21
And so also there would be breach of Article A 21 if there is no law authorising deprivation of personal liberty and yet a person is detained for then the substantive safeguard provided in the Article would be violated
Therefore when a detenu challenges an order of detention made against him on the ground that it is mala fide or is not preceded by the requisite subjective satisfaction such challenge would fall within the terms of Article 21
B It is also necessary to point out two other ingredients of Article 21
The first is that there must not only be a law authorising deprivation of personal liberty but there must also be a procedure prescribed by law or in other words law must prescribe a procedure
Vide observations of Fazal Ali J at page 169 Patanjali Sastri J at page 205 Mahajan J at pages 229 and 230 and section R Das J at page 319 of the Report in A 
K Gopalan s case  supra 
Article 21 thus operates not merely as a restriction on executive action against deprivation of personal liberty without authority of law but it also enacts a check on the legislature by insisting that the law which authorises deprivation must establish a procedure
What the procedure should be is not laid down in this Article but there must be some procedure and at the least it must conform to the minimal requirements of Article 22
Secondly law  within the meaning of Article 21 must be a valid law and not only must it be within the legislative competence of the legislature enacting it but it must also not be repugnant to any of the fundamental rights enumerated in Part III
Vide Shambhu Nath Sarkar vs The State of West Bengal1 and Khudiram Das vs The State of West Bengal  ors2
It was contended by Mr Jethmalani on behalf of some of the detenus that when a Presidential order suspends enforcement of the right conferred by article 21 its effect is merely to suspend enforcement of the aforesaid two ingredients and therefore the only claims which a detenu is interdicted from enforcing whilst the Presidential order is in operation are 1 that the law authorising deprivation does not prescribe a procedure and 2 that it does not impose reasonable restrictions on the freedom guaranteed under article 19
This contention is plainly erroneous and does not need much argument to refute it
In the first place the requirement that the law which authorises deprivation of personal liberty should not fall foul of Article 19 or for the matter of that with any other fundamental right set out in Part III is not a requirement of Article 21 but it is a requirement of article 13
Secondly the effect of suspension of enforcement of Article 21 by the Presidential order is that no one can move any court for a enforcement of the right conferred by article 21 whilst the Presidential order is in operation
The right conferred by Article 21 is the right not to be deprived of personal liberty except according to procedure prescribed by law
Therefore when the executive detains a person without there being any law at all authorising detention or if there is such law otherwise than in accordance with its provisions that would clearly be in violation of the right conferred by article 21 and such vio 1 1974 SCR1
2  436 lation would a fortiori toe immune from challenge by reason of the Presidential order It must follow inevitably from this that when a detenu challenges an order of detention on the ground that it is mala fide or is not in accordance with the provisions of the Act or is outside the authority conferred by the Act he would be seeking to enforce the right of personal liberty conferred on him under article 21 and that would be inhibited by the Presidential order
That takes me to a consideration of the concept of the rule of law on which so much reliance was placed on behalf of the detenus in order to save their writ petitions from the lethal effect of the Presidential order
The contention on behalf of the detenus was that their writ petitions were for enforcement of the right of the personal iiberty based on the principle of the rule of law that the executive cannot interfere with the liberty of a person except by authority of law and that was not within the inhibition of the Presidential order
The question is what is this principle of the rule of law and does it exist under our Constitution as a distinct and separate constitutional principle independently and apart from Article 21 so as to be capable of enforcement even when enforcement of Article 21 is suspended by the Presidential order
The Great Charter of Liberties of England commonly known as the Magna Carta was granted under the seal of King John in the meadow called Runnymede on 15th June 1215
This was followed within a couple of years by a revised version of the Charter which was issued in the name of Henry III in 1217 and ultimately with slight amendments another Charter was re issued by Henry III in 1225 and that document has always been accepted as containing the authorised text of Magna Carta
Whenever reference is made to Magna Carta it is to the Charter of 1225
which is also described as 9 Henry III 1225
Magna Carta according to Sir Ivor Jennings symbolises what we should now call the rule of law government according to law or constitutional government which means that all power should come from the law and that no man be he king or minister or private person is above the law
It recognised that the liberties of England which means the liberties of all free men depended on the observance of law by King lord and commoner alike and without law there is no liberty
XXIX contains the famous clause of the Magna Carta which provided that No free man shall be taken or imprisoned or dispossessed of his free tenement or liberties or free customs or be outlawed or exiled or in any way destroyed nor will we condemn him nor will we commit him to prison excepting by the legal judgment of his peers or by the laws of the land Thus for the first time the great principle was enunciated though even before it was always part of the liberties of the subject that no one shall be imprisoned or deprived of his liberty except by the authority of the law of the land
The power of the King to arrest a person or to deprive him of his liberty was circumscribed by law
That is why Bracton said about the middle of the 13th Century  the king himself ought not to 437 under man but under God and under the law because the law makes A the King
Therefore let the King attribute to the law what the law attributes to the King namely lordship and power for there is no king where will governs and not law
Magna Carta was confirmed again by the successive kings on the insistence of Lords and commons and the rule of law embodied in Magna Calla governed the actions of the King vis a vis his subjects
But this great principle of liberty was placed in jeopardy in the 17th Century when a claim was made by the King that he had a prerogative right to arrest and detain subject and this prerogative right was necessary for the defence of the Realm
When the King sought to raise moneys from the subjects without the sanction of the Parliament it was resisted by Darnel and others and they were on that account committed to prison under the orders of the King
On the application of these persons who were so imprisoned a writ of habea corpus was issued and the return made to it on behalf of the King was that they were imprisoned per speciale mandate Domini Regis warnel s case
This return was considered sufficient and the writ was discharged
The effect of this decision was that King needed no authority of law in order to deprive a subject of his personal liberty
But the Parliament was quick to nullify this decision by enacting the Petition of Right 1628 and it reaffirmed the right to personal liberty in section 3 of that Act and declared such a cause of imprisonment to be unlawful
The principle that the Executive cannot interfere with the liberty of a subject unless such interference is sanctioned by the authority of law was thus restored in its full vigour
Blackstone in his Commentaries on the Laws of England vol 1 4th ed
p 105 stated the principle in these terms E  the law of England regards asserts and preserves the personal liberty of individuals
This personal liberty consists in the power of locomotion of changing situation or removing one s person to whatsoever place one s own inclination may direct for imprisonment or restraint unless by due course of law It cannot ever be abridged at the mere discretion of the magistrate without the explicit per mission of the laws
Here again the language of the Great Charter is that no free man shall be taken or imprisoned but by the lawful judgment of his equals or by the law of the land emphasis supplied Since then the validity of this principle has never been doubted and the classical statement of it is to be found in the oft quoted passage from the judgment of Lord Atkin in Eshugbayi Eleko vs Officer Administering the Government of Nigeria supra where the learned Law Lord said The Governor acting under the ordinance acts solely under executive powers and in no sense a Court
As the executive he can only act in pursuance of the powers given to him by law
In accordance with British jurisprudence no member of the executive can interfere with the liberty or 438 property of a British subject except on the condition that he can support the legality of his action before a Court of Justice
And it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the executive
 Since in this country prior to the commencement of the Constitution we were administering British jurisprudence this constitutional principle was equally applicable here
That was the direct result of the binding authority of the decision of the Privy Council in the aforementioned case
But quite apart from that the courts in India uniformly accepted this constitutional principle as part of the law of the land
Vide Secretary of State for India vs Hari Bhanji1 and Province of Bombay vs Khushaldas Advani2
Bose J in P K Tare vs Emperor3 quoted with approval the aforesaid passage from the judgment of Lord Atkin and pointed out that before the executive can claim power to override the rights of the subject it must show that the legislature has empowered it to do so
The learned Judge also referred to the following passage from the dissenting judgment of Lord Atkin in Liversidge vs Anderson4 It has always been one of the pillars of freedom one of the principles of liberty for which on recent authority we are now fighting that the Judges are no respecter of persons and stand between the subject and any attempted encroachments on his liberty by the executive alert to see that any coercive action is justified in law emphasis supplied and pointing out that Lord Macmillan and Lord Wright also agreed with this principle observed that these principles of liberty to which Lord Atkin refers apply as much to India as elsewhere
So also in Vimlabai Deshpande vs Emperor5 the same two passages one from the judgment of Lord Atkin in Eshugbayi s case supra and the other from the judgment in Liversidge s case supra were referred to with approval by Bose and Sen JJ
It was also accepted by a Division Bench of the Calcutta High Court consisting of Malik and Remfry JJ
in Jitendranath Ghosh vs The Chief Secretary to the Government of Bengal i that  in accordance with British jurisprudence and with the jurisprudence of British India no member of the excutive can interefere with the liberty or property of a British subject or of a foreigner in our land except on the condition that he can and if duly called upon must support the legality of his action before a court of justice
The Division Bench pointed out that the courts can and in a proper case must consider and determine the question whether there has been a fraud on an Act or an abuse of powers granted by the legislature Eshugbayi Eleko s case
Ameer Ali ACJ and section R Das J also quoted with approval in re  Banwarilal Roy7 the aforesaid passage from the judgment 1 Mad 273
2  3 A I R 4 5 A I R 6 I L R at 377
7 48 Cal
Weekly Notes 766 at 780 439 of Lord Atkin in Eshugbayi Eleko s case supra and relied on the decision in Jitendranath Ghosh s case supra and particularly the observations from the judgment in that case which I have just reproduced
These observations clearly show that in our country even in pre constitution days the executive was a limited executive that is an executive limited by law and it could act only in accordance with law
B It would be seen from the above discussion that even prior to the Constitution the principle of rule of law that the executive cannot act to the prejudice of a person without the authority of law was recognised as part of the law of the land and was uniformly administered by the courts
It was clearly law in force  and ordinarily by reason of Article 372 it would have continued to subsist as a distinct and separate principle of law even after the commencement of the Constitution
But when the Constitution was enacted some aspects of this principle of rule of law were expressly recognised and given constitutional embodiment in different Articles of the Constitution
Thereafter they did not remain in the realm of unwritten law
Article 21 enacted one aspect of the principle of rule of law that executive cannot deprive a person of his life or personal liberty without authority of law and added a requirement that the law which authorises such deprivation must prescribe a procedure
Another aspect of the principle of rule of law was enacted in clause 1 of Article 31
namely that no one shall be deprived of his property save by authority of law
That is why it was pointed out by Shah J in R C
Cooper s case supra that Clauses 1 and 2 of Article 31 subordinate the exercise of the power of the State to the basic concept of the rule of law
A third aspect was constitutionailsed in various sub clauses of clause 1 of Article 19 inhibiting executive action unsupported by law which conflicted with the different freedoms guaranteed in these sub clauses
Then Article 265 recognised and enacted a yet fourth aspect namely that no tax shall be levied and collected without authority of law
Article 19 clause 1 Article 21 Article 31 clause 1 and Article 265 thus embody different aspects of the principle of rule of law
We are concerned in these appeals only with Article 21 and therefore I shall confine my discussion only to that Article
Now to my mind it is clear that when this principle of rule of law that the executive cannot deprive a person of his liberty except by authority of law is recognised and embodied as a fundamental sight and enacted as such in Article 21 it is difficult to comprehend how it could continue to have a distinct and separate existence independently and apart from this Article in which it has been given constitutional vesture
l fail to see how it could continue in force under Article 372 when it is expressly recognized and embodied as a fundamental right in article 21 and finds a place in the express provisions of the Constitution
Once this principle is recognised and incorporated in the Constitution and forms part of it it could not have any separate existence apart from the Constitution unless it were also enacted as a statutory principle by some positive law of the State
This position 440 indeed become incontrovertible when we notice that while recognising and adopting this principle of rule of law as a fundamental right the Constitution has defined its scope and ambit and imposed limitation on it in the shape of Article 359A clauses 1 and 1A
When the constitution makers have clearly intended that this right should be subject to the limitation imposed by Article 359 clause 1 and 1A it would be contrary to all canons of construction to hold that the same right continues to exist independently but free from the limitation imposed by Article 359 clauses 1 and 1A
Such a construction would defeat the object of the constitution makers in imposing the limitation under Article 359 clauses 1 and 1A and make a mockery of that limitation
The consequence of such a construction would be that even though a Presidential order is issued under clause 1 of Article 359 suspending the right to move the court for enforcement of the right guaranteed under Article 21 the detenu would be entitled to ignore the Presidential order and challenge the order of the detention on the ground that it is made otherwise than in accordance with law which is precisely the thing which is sought to be interdicted by the Presidential order
The Presidential order would in such case become meaningless and ineffectual
Can an interpretation be accepted which would reduce to futility Article 359 clause l in its application in relation to Article 21  Could the constitution makers have intended such a meaning The only explanation which could be offered on behalf of the detenus was that the object of Article 359 clause 1 is merely to prevent a person from moving the Supreme Court under Article 32 for enforcing the right of personal liberty and it is not intended to effect the enforcement of the right of personal liberty based on the rule of law by moving the High Court under Article 226
But this explanation is wholly unconvincing
It is difficult to understand why the constitution makers should have intended to bar only the right to move the Supreme Court under Article 37 in so far as the
right of personal liberty is concerned
There would be no point in preventing a citizen from moving the Supreme Court directly under Article 32 for securing his release from illegal detention while at the same time leaving it open to him to move the High Court for the same relief and then to come to the Supreme Court in appeal if necessary
That would be wholly irrational and meaningless Therefore the only way in which meaning and effect can be given to the Presidential order suspending the enforcement of the right of personal liberty guaranteed under Article 21 is by holding that the principle of rule of law that the executive cannot interfere with the personal liberty of any person except by authority of law is enacted in Article 21 and it does not exist as a distinct and separate principle conferring a right of personal liberty independently and apart from that Article
Consequently when the enforcement of the right of personal liberty conferred by Article 21 is suspended by a Presidential order the detenu cannot circumvent the Presidential order and challenge the legality of his detention by falling back on the supposed right of personal liberty based on the principle of rule of law
It was also said on behalf of the detenus that under our constitutional set up the executive is bound to act in accordance with law and 441 this obligation of the executive arises from the very basis of the doctrine of distribution of powers amongst different bodies created by the Constitution as also from the terms of Articles 73 154 and 256 of the Constitution
This obligation contended the detenus could be enforced against the executive under Article 226 by issue of a writ for any other purpose
Now it is true that under our Constitution the executive is a limited executive and it is bound to act in accordance with law and cannot disobey it
If the says that the executive shall be entitled to detain a person only on the fulfillment of certain conditions and according to a specified procedure it cannot make an order of detention if the prescribed conditions are not fulfilled or the specified procedure is not followed
The executive is plainly and indubitably subordinated to r the law and it cannot flout the mandate of the law but must act in accordance with it
The Judicial Committee of the Privy Council pointed out this constitutional position in Eastern Trust Company vs Mckenzie Mann  Co Ltd  in an appeal from the Supreme Court of Canada The non existence of any right to bring the Crown into Court does not give the Crown immunity from all law or authorize the interference by the Crown with private rights at its own mere will It is the duty of the Crown and of every branch of the Executive to abide by and obey the law
emphasis supplied
This rule must naturally apply with equal force in our constitutional set up and that was recognised by this Court in Rai Sahib Ram Jawaya Kapur vs The State of Punjab2 where Mukherjea J speaking on behalf of the Court said In India as in England the executive has to act subject to the control of the legislature and proceeded to add  the executive Government are bound to conform not only to the law of the land but also to the provisions of the Constitution  In Bharat Singh s case supra also this Court pointed oui our federal structure is founded on certain fundamental principles 1 the sovereignty of the people with limited Government authority ie the Government must be conducted in accordance with the will of the majority of the people
The people govern themselves through their representatives whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people 2 There is distribution of powers between the three organs of the State Legislative executive and judicial each organ having some check direct or indirect on the other
and 3 the rule of law which includes judicial review of arbitrary executive action
The obligation of the executive to act according to law and not to flout or disobey it is therefore unexceptionable and cannot be disputed
But this obligation in so far as personal liberty is concerned is expressly recognised and enacted as a constitutional provision inter alia in Article 21 and when the Constitution itself has provided that the enforcement of this obligation may be suspended by a Presidential order it is difficult to see how the intention of the constitution makers can be allowed to be defeated by holding that this obligation exists independently of article 21 and it can be enforced despite the limitation imposed by the constitutional provision The same reasoning which I 1 2 19551 2 section C R 225 442 have elaborated in the preceding paragraph would equally apply to repel the present argument
Before I go to the decided cases I must refer to one argument which strongly supports the view I am taking
It is almost conclusive
It is an argument for which I must express my indebtedness to Prof P K Tripathi
In an article written on Judicial and Legislative Control over the Executive during Martial Law  and published in the Journal Section of All India Reporter at page 82 Prof P K Tripathi has suggested that considerations of Martial Law may support the conclusion that a Presidential order mentioning Article 21 takes away wholly and completely the right of an individual to obtain a writ of habeas corpus challenging the legality of his detention
I must of course hasten to make it clear that there is no Martial law any where in the territory of India at present and I am referring to it only in order to buttress the conclusion otherwise reached by me
The concept of Martial law is well known in the British and American jurisprudence
When a grave emergency arises in which the executive finds itself unable to restore order by employing the ordinary civilian machinery and it becomes necessary for it to use force it may declare what is commonly termed martial law 
Martial law means that the executive calls the military to its aid and the military acting under the general authority of the executive proceeds to quell violence by violence
When martial law is in force it is well settled that the courts cannot issue a writ of habeas corpus or otherwise interfere with the military authorities or the executive to protect the life or liberty of an individual even if illegal or mala fide action is taken or threatened to be taken by the military authorities or the executive
To give only one example In Ireland in John Allen s case  the martial law authorities ordered all persons to deposit their fire arms within twenty four hours with the army authorities on pain of death
John Allen
who failed to obey was arrested and sentenced by the military tribunal which was in law a mere body of army men advising the officer commanding to death and the martial law authorities announced the day and date when he was to be executed
The court was moved on behalf of John Allen on the ground that the order of the military tribunal was invalid but the court refused to interfere on the theory that when martial law is properly declared the court will not issue habeas corpus during the period when martial law is in force
It is the basic characteristic and essence of martial law that during the time that it is in force the individual cannot enforce his right to life and liberty by resorting to judicial process and the courts cannot issue the writ of habeas corpus or pass any similar orders
Now under our Constitution there does not appear to be any express provision conferring power on the executive to declare martial law
But it is implicit in the text of Article 34 of the Constitution that the Government may declare martial law in any area within the territory of India
What are the legal implications and consequences of declaration of martial law is not provided any where in the Cons 1 1921 2 Irish Reports 241
443 titution
It is therefore obvious that merely declaring martial law Would not by itself deprive the courts of the power to issue the writ of habeas corpus or other process for the protection of the right of the individual to lie and liberty
In our country unlike England the right to life and liberty is secured as a fundamental right and the right to move the Supreme Court for enforcement of this right is also guaranteed as a fundamental right
Also the power to issue a writ or order in the nature of habeas corpus has been expressly conferred of the High Courts by a constitutional provision namely Article 226
Therefore the declaration of martial law which is not even expressly provided in the Constitution cannot override the provisions of the Article conferring the right to life and liberty as also of Articles 32 and 226 and unless the right of an individual to move the courts for enforcement of the right to life and liberty can be suspended or taken away by or under an express provisions of the Constitution the individual would be entitled to enforce the right to life and liberty under Article 32 or Article 226 or by resorting to the ordinary process of law even during martial law
That would be contradictory of the basic and essential feature of martial law and make it impossible to impose effective martial law anywhere at any time in the territory of India
Such a consequence could never have been imagined by the constitution makers
They could never have intended that the Government should have the power to declare martial law and yet it should be devoid of the legal effect which must inevitably follow when martial law is in force
Moreover Article 34 itself presupposes that acts contrary to law may be committed by The military authorities or the executive during the time when martial law is in force and that is why it provides that after the martial law ceases to be in force Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area where martial law was in force or validate any sentence passed punishment inflicted forfeiture ordered or other act done under martial law in such area
This provision clearly postulates that during the time that martial law is in force no judicial process can issue to examine the legality of any act done by the military authorities or the executive in connection with the maintenance or restoration of order
But how is this result to be achieved under the Constitution  The only provision in the constitution which authorises temporary suspension or taking away of the right of an individual to move any court for enforcement of his right to life and liberty is Article 359 clause  I  
If the Presidential order under clause 1 of Article 359 suspending enforcement of the fundamental right under Article 21 were construed not to have the effect of barring an individual from moving the court for impugning the legality of the act of the executive interfering with his life or liberty on the assumption that in doing so he is merely enforcing his right to life or personal liberty based on the rule of law
the result would be that even when and where martial law is in force courts will continue to have the power to examine the legality of the act of the executive because as explained earlier the mere 444 declaration of martial law does not under our Constitution have the effect of taking away that power
That would be plainily an insufferable situation which would carry the power of courts even beyond that claimed by the United States courts in the case of the ex parte Milligan  which case went to the farthest limit and which has for that reason been criticised by great authorities like E section Corwin and has not been consistently followed even by the United States Supreme Court Vide Moyer vs Peabody2 and Duncan vs Kohanmeku3 There can be no two opinions that during martial law the courts cannot and should not have power to examine the legality of the action of the military authorities or the executive on any ground whatsoever including the ground of mala fide
But if the courts are to be prevented from exercising such power during martial law that situation call be brought about only by a Presidential order issued under Article 359 clause 1 and in no other way and the Presidential order in so far as it suspends the enforcement of the right of personal liberty conferred under Article 21 must be construed to bar challenge to the legality of detention in any court including the Supreme Court and the High Courts whilst the Presidential order is in operation
I may also in this connection refer to the decision of the House of Lords in Attorney General Y De Keyser s Royal Hotel4 There in May 1916 the Crown purporting to act under the Defence of Realm Consolidation Act 914 and the Regulations made thereunder took possession of a hotel for the purpose of Housing the Headquarters  personnel of the Royal Flying Corps and denied tthe legal right of the owners to compensation
The owners yielded up possession under protest and without prejudice to their right and by a Petition of Right they asked for a declaration that they were entitled to compensation under the Defence Act
The Crown was plainly liable to pay compensation under the Statute but it sought to justify its action in taking possession of the hotel without payment of compensation under the sanction of the Royal Prerogative
Tile question which therefore arose for consideration before the House of Lords was whether the Royal Prerogative was available to the Crown for taking possession of the Hotel without compensation when the statute authorised taking of such possession but on condition on payment of compensation
The House of Lords unanimously held that in view of the statutory provision on the subject the Royal Prerogative to take property without payment of compensation did not subsist and the principle laid down was that where by Statute the Crown is empowered to do what it might heretofore have done by virtue of its prerogative it can no longer act under the prerogative and must act under and subject to the conditions imposed by the statute
Lord Dunedin in the course of his speech observed None the less it is equally certain that if the whole ground of something which could be done by the prerogative is covered by the statute it is the statute that rules 1 1866 4 Wallace 2
2 3  4  445 Lord Atkinson quoted with approval the following pregnant passage A from the judgment of the Master of the Rolls in the same case 
Those powers which the executive exercises without Parliamentary authority are comprised under the comprehensive term of the prerogative
Where however Parliament has intervened and has provided by statute for powers previously within the prerogative being exercised in a particular manner and subject to the limitations and provisions contained in the statute they can only be so exercised
otherwise what use would there be in imposing limitations if the Crown could at its pleasure disrgard them and fall back on prerogative  and pointed out that the question posed by the Maqster of the Rolls was unanswerable
The learned Law Lord then proceeded to add It is quite obvious that it would be useless and meaning less for the Legislature to impose restrictions and limitations upon and to attach conditions to the exercise by the Crown of the powers conferred by a statute if the Crown were free at its pleasure to disregard these provisions and by virtue of its prerogative do the very thing the statutes empowered it to do The other learned Law Lords who participated in the decision also made observations to the same effect in the course of their speeches
Now it is obvious that the contention of the detenus in the present case is very similar to that advanced on behalf of the Crown in De Keyser s Royal Hotel s case supra
It almost seems to be an echo of that contention and it must inevitably be answered the same way
When the right of personal liberty based on the rule of law which existed immediately prior to the commencement of the Constitution has been enacted in the Constitution as a fundamental right in Article 21 with the limitation that when there is a Proclamation of Emergency the President may by order under Article 359 clause 1 suspend its enforcement it is impossible to imagine how that right of personal liberty based on the rule of law can continue to exist as a distinct and independent right free from the limitation as to enforcement contained in Article 359 clause 1
It would be meaningless and futile for the constitution makers to have imposed this limitation in regard to enforcement of the right of personal liberty guaranteed by Article 21 if the detenu could with impunity disregard such limitation and fall back on the right of personal liberty based on the rule of law
There is a decision of this Court in Dhirubha Devisingh Gohil vs The State of Bombayl which clearly supports this view
The question which arose for determination in this case was whether the Bombay Taluqdari Tenure Abolition Act 1949 was a valid piece of legislation
When this Act was enacted by the Bombay Legislature 1 1955 I section C R 691
446 the Government of India Act 1935 was in force and the validity of this Act was challenged on the ground that it was in violation of section 299 sub section 2 of the Government of India Act 1934
Since this Act was included in the Ninth Schedule to the Constitution by the Constitution of India First Amendment Act 1951 the State con tended that by reason of Article 31 B this Act was immune from attack of the kind put forward on behalf of the petitioner
article 31 1 provides inter alia that none of the Acts specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void or ever to have become void on the ground that such act or provision is inconsistent with or takes away or abridges ally of the right conferred by any provisions of Part III
The petitioner disputed the applicability of article 31 B on the ground that the protection under that article was confined only to a challenge based on the provisions of Part III of the Constitution and did not extend to a challenge
based on violation of section 299 sub section
2 of the Government of India Act 1935
The petitioner relied on the words  is inconsistent with or takes away or abridges any rights conferred by any provisions of Part III and contended that inconsistency with or taking away or abridgement of the right conferred by section 299 sub section
2 of the Government of India Act 1935 was not within the protection of Art 31 B
This contention of the petitioner was negatived and it was held by this Court speaking through Jagannatha Das J When Article 31 B protects is not a mere contravention of the provisions of Part III of the Constitution but an attack on the grounds that the impugned Act is inconsistent with or takes away or abridges any of the rights conferred by any provisions of this Part
 one of the rights secured to a person by Part III of the Constitution is a right that his property shall be acquired only for public purposes and under a law authorising such acquisition and providing for compensation which is either fixed by the law itself or regulated by principles specified by the law
That is also the very right which was previously secured to the person under section 299 of the Government of India Act
The challenge now made to the validity of the impugned Act is based on the alleged violation of that right 7 But it is urged that even so article 31 B protects only the violation of the fundamental right in so far as it was conferred by Part III of the Constitution and that this right cannot be said to have been conferred by the Constitution
We cannot agree with this contention
This is clearly a case where the concerned right which was secured under section 299 of the Government of India Act in the form of a fetter on the competency of the Legislature and which in substance was a fundamental right was lifted into the formal category of a fundamental right along with other fundamental rights recognised in the present Constitution
There is therefore nothing inappropriate in referring to this right which was pre existing along with the other fundamental rights for the first time secured by this Constitution when grouping them 447 together as fundamental rights conferred by the Constitution This Court held that when Article 31 B protected the Act against attack on the ground that the Act is inconsistent with or takes away or abridges any of the rights conferred by any provisions of Part III the protection extended to giving immunity against violation of the 8 right secured by section 299 subsection 2 of the Government of India 1935 because that was the very right lifted into the category of fundamental right and enacted as Article 31 clause 2 of the Constitution and it could accordingly with appropriateness be referred to as the right conferred by Article 31 clause 2
On the parity of reasoning it may be said that the right based on the principle of rule of law that no one shall be deprived of his life or personal liberty except by authority of law which was a pre existing right was lifted into the category of fundamental right and enacted as Article 21 and hence it became a fundamental right conferred by Article 21 and ceased to have any distinct and separate existence
The maxim expressum facit cessare tacitum  that is what is expressed makes what is silent cease would also clearly be applicable in the present case
This maxim is indeed a principle of logic and common sense and not merely a technical rule of construction
It was applied in the construction of a constitutional provision in Shankara Rao Badami vs State of Mysore1
The argument which was advanced in that case was that the existence of public purpose and the obligation to pay compensation were necessary concomitants of compulsory acquisition of private property and so the term acquisition  in Entry 36 of List II of the Seventh Schedule to the Constitution must be construed as importing by necessary impliction the two conditions of public purpose and payment of adequate compensation and consequently the Mysore Personal and Miscellaneous Inams Abolition Act 1955 which provided for acquisition of the rights of the inamdars in inam estates in Mysore State without payment of just and adequate compensation was beyond the legislative competence of the State Legislature
This argument was rejected on the ground that the limitations of public purpose and payment of compensation being expressly provided for as conditions of acquisition in Article 31 2 there was no room for implying either of these limitations in the interpretation of the term acquisition  in Entry 36 of List II
Ramaswamy J speaking on behalf of the Court observed G It is true that under the Common law of eminent do main as recognised in Anglo Saxon jurisprudence the State cannot take the property of its subject unless such property is required for a public purpose and without compensating the owner for its loss
But when these limitations are expressly provided for in Article 322 and it is further enact cd that no law shall be made which takes away or abridges 1  448 these safeguards and any such law if made shall be void there can be no room for implication and the words acquisition of property  in entry 36 must be understood in their natural sense of the act of acquiring property without importing into the phrase an obligation to pay compensation or a condition as to the existence of a public purpose
In other words it is not correct to treat the obligation to pay compensation as implicit in the legislative entry 33 of List I or legislative entry 36 of List II for it is separately and expressly provided for in Article 312
The well known maxim expresum fact cessare tacitum is indeed a principle of logic and commonsense and not merely a technical rule of construction
The express provision in Article 31 2 that a law of acquisition in order to be valid must provide for compensation will therefore necessarily exclude all suggestion of an implied obligation to provide for compensation sought to be imported into the meaning of the word acquisition in entry 36 of List II
In the face of the express provision of Article 312 there remains no room for reading any such implication in the legislative heads
 Similarly in the present case on an application of the maxim expressum facit cessare tacitum the express provision in Article 21 that no person shall be deprived of his life or personal liberty except according to procedure prescribed by law will necessarily exclude a provision to the same effect to be gathered or implied from the other provisions of the Constitution
I find myself fortified in this conclusion by the view taken on a similar question under the Irish Constitution which also contains a catena of articles conferring fundamental rights Kelly in his book one Fundamental Rights in the Irish Law and Constitution  points out that the various fundamental rights which were previously notionally present in the common law have been subsumed in and replaced by the written guarantees and therefore
 these rights cannot be found elsewhere than in the Constitution
The decision of the High Court of Justice in Ireland in State Walsh and others vs Lennon and others1 has also adopted the same view
The petitioners in this case who were detained in Arbour Hill Military Detention Barracks awaiting trial on a charge of murder before a Military Court established under Emergency Powers No 41 order 1940 made an application to the High Court for an order of habeas corpus directed to the Governor of the Detention Barracks in which they were held and for an order of prohibition directed to the President and members of the Military Court before whom it was ordered by Emergency Powers No 41F order 1941 that they should be tried
The application inter alia challenged the validity of the Emergency Powers No 41 F order 1941 on the ground that it was ultra vires the Government as it directed that the Military Court which was to try the petitioners
should try them together and so precluded the Court from exercising its discretion and control over its own procedure and was thus violative of the right of a citizen to insist that he shall not be 1 1942 Irish Reports 112
449 tried on a criminal charge save in due course of law and was also in A conflict with the right of a citizen to personal liberty
The right of personal liberty was guaranteed by Article 40 section 4 sub section 1 of the Constitution while the right of a citizen charged with a criminal offence to insist that he shall not be tried save in due course of law was to be found in article 38 section 1
The respondents relied on Article 28 section 3 sub section 3 of The Constitution which provided Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be For the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion or to nulify any act done or purported to be done in pursuance of any such law and contended that by reason of this provision the Emergency Powers No 41 F Order 1941 was protected from challenge on the ground of contravention of Article 38 section 1 and Article 40 section 4 sub section  1  of the Constitution
This contention clearly had the effect of putting the petitioners out of court and therefore they sought to get round this difficulty by arguing that the constitutional rights which they claimed to have been infringed were derived not from the written constitution but from the Common Law and consequently Article 28 section 3 sub section 3 of the Constitution did not stand in their way
This argument which was very similar to the present argument advanced before us was unhesitatingly rejected by all the three judges who took part in the decision
Maguire J said The contention is that the constitutional principles which assure to a citizen his personal liberty his right to resort to this Court for an order of habeas corpus his right that he shall not be tried on a criminal charge save in due course of law have as their source the Common Law and exist side by side with these rights in the written Constitution
In support of this contention reliance is placed on the decision of the Supreme Court in Burke s Case  particularly on the passage in the judgment of Murnaghan J at p 171 where he says certain constitutional principles are stated in the Constitution but many other important constitutional principles have been accepted as existing in the law then in force   I do not find in the judgment of Murnaghan J
Or else where in the judgments in that case any basis for the contention that these rights are to be found in a body of principles which exist side by side with the written Constitution having their source in the Common Law and of equal validity with the principles stated in the Constitution and which on the argument here would have the added virtue that they are uncontrolled by article 28 section 3 sub section 3
The constitutional rights relied upon in this case find clear expression in Article 40 and 38 of the Constitution
In my view they cannot be found elsewhere than in the Constitution
The advantages of a written Constitution are manifest
Such a Constitution can and our Constitution does give 31 833SCI76 450 rights such as these definite and clear expression
Our Constitution can and does protect them against being whittled away save with great difficulty
The framers of the Constitution have provided that after the passage of a limited time many though not all of the rights which it gives are put beyond the reach of interference by ordinary law
The framers have however deliberately inserted article 28 section 3 sub section 3 which is clearly designed to prevent the Courts from invoking anything in the Constitution to in validate enactments passed or to nullify acts done or which purport to be done in pursuance of Acts passed for securing the public safety or the preservation of the State in time of war
 Gavan Duffy J also observed to the same effect The applicants seek in the alternative to base their claims to habeas corpus and prohibition upon antecedent rights of personal liberty and regular trial at Common Law but whether or not the imminent Common Law of Ireland needed generally any article 50 containing the laws in force to retain its vigour the particular Common Law principles here invoked must both in my opinion of necessity have merged in the express provisions declaring how the two corresponding rights are to be in force under the new polity established by An Bunreacht And so did Martin Maguire J when he said It is argued in the alternative that apart from the Constitution and existing side by side with it there is a body of constitutional law founded on Common Law and comprising the same constitutional rights which the prosecutors seek to assert and in respect of which they demand the relief claimed in these proceedings
This argument involves the propositions that the State has two Constitutions the one enacted by the people written and defined the other un written and undefined and that the latter may be invoked or called in aid to the extent even of defeating the clear terms of the Constitution where a conflict real or apparent is alleged between them
There is no authority for these propositions
I am unable to accept this argument
 On this view all the three judges of the High Court held that the Emergency Powers No 41 F Order 1941 was immune from challenge by reason of Article 28 section 3 sub section 3 of the Constitution
This decision was taken in appeal and affirmed by the Supreme Court but this point about the continuance of the common law rights side by side in the constitution was not examined since it was obvious that the Emergency Powers No 41 F order 1941 could not be set at naught on the ground of repugnancy to any supposed Common Law rights
It will be seen that there is a close analogy between this decision of the High Court and the present case 451 and the observations of the three judges quoted above are directly applicable here
The detenus however strongly relied on the decisions of this court in Bharat Singh s case supra Ibrahim  Co s case supra Bennet Coleman  Co s case supra and Shree Meenakshi Mills  case supra in support of their contention that the principle of rule of law that the executive cannot act to the prejudice of a person except by authority of law continues to exist as a distinct and independent principle unaffected inter alia by the enactment of Article 21
I have already referred to these decisions earlier and it will be evident from what l have said that these decisions do not lay down any such proposition as is contended for on behalf of the detenus
What these decisions say is only this namely that Article 358 protects against challenge under Article 19 only such executive action ac is taken under lawful authority and if any executive action is taken without authority of law or
in pursuance OF a law which is void it will not he protected from challenge under Article 19 by Article 353 and it will be void to the extent to which it conflicts with Article 19
These decisions properly read do not support the thesis put forward on behalf of the detenus
The detenus then relied on the decision of this Court in Bidi Supply Co vs Union of India1 There an omnibus order was made under section 5 sub section 7A of the Income Tax Act transferring cases of the petitioner form one place to another
the petitioner challenged this order as being outside the power conferred under section 5 sub section 7A and hence violative of the fundamental rights guaranteed to him by Articles 14 191if and b and 31 of the Constitution
This Court held that the omnibus order made in this case was not contemplated or sanctioned by sub section 7A of section 5 and
therefore the petitioner was still entitled to the benefit of the provisions of sub sections 1 and 2 of section 64 and since the Income Tax authorities had by an executive order unsupported by law picked out the petitioner for discriminatory treatment there was violation OB the equality clause of the Constitution and hence the petitioner was entitled to relief under Article 32 of the Constitution setting aside the impugned order
SR Das CJ speaking on behalf of the Court observed As said by Lord Aktin in Eshugbayi Eleko s case the executive can only Act in pursuance of the powers given to it by law and it cannot interfere with the liberty property and rights of the subject except on the condition that if can support the legality of its action before the Court
were there was no such order of transfer as is contemplated or sanctioned by subsection 7A of section 5 and therefore
the present assessee still has the right along with all other Bidi merchants carrying on business in Calcutta to have his assessment proceedings before the Income tax officer of the area in which his place of business is situate
The income tax authorities have by an executive order unsupported by 1 1156 section C R 267
452 law picked out this petitioner and transferred all his cases by an omnibus order unlimited in point of time emphasis supplied
and Since the action of the Income tax authorities was contrary to sub sections 1 and 2 of section 64 the impugned order was held to be bad
Hence it will be noticed that the impugned order operated to the prejudice of the petitioner by affecting his rights under section 1 and 2 of Section 64 but it did not affect any of his rights under Article 19 or Article 21 or clause Cl of Article 31 and therefore the principle of rule of law that the executive cannot act to the prejudice of a person without authority of law could by legitimately invoked
It continued to be in law in force to the extent to which it was not recognised and enacted in any provision of the Constitution
The next decision to which I must refer in this connection is Bishan Das  Ors vs The State of Punjab
This was a petition under Article 32 of the Constitution and the action of the officers of the State Government impugned in this case was forcible dispossession of the petitioners of properties which were in their management and possession
The challenge to the impugned action of the officers of the State Government was based on violation of the fundamental right guaranteed under clause 1 of Article 31
This Court upheld the challenge and struck down the impugned action as being without the authority of law and while doing so
made the following observations which were strongly relied onp on behalf of the detenus Before we part with this case we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of basic principle of the rule of law the action of the Government in taking the law into their hands and dispossession the petitioners by the display of force exhibits a callous disregard of the normal requirements of the rule of law We have here a highly discriminatory and autocratic act which deprives a person of the possession of property without reference to any law or legal authority
emphasis supplied
These observations Made in the context of a petition for enforcement of the fundamental right under Article 31
clause 1 clearly show that this Court regarded the principle of rule of law that no person shall be deprived of his property without reference to any law or legal authority  as embodied in Article 31 clause 1 and did not rely upon this principle of rule of law as a distinct and independent principle apart from Article 31 clause 1 otherwise the petition under Article 32 would not have been maintainable and this Court could not have granted relief
The last decision to which I must refer is the decision of this Court in State of Bihar vs Kameshwar Prasad Verma2 That was a case arising out of a petition for a writ of habeas corpus filed under
Article 226 for release of one Bipat Gope from illegal detention
This Court held that the State Government had failed to show under what lawful authority Bipar had been re arrested and in the absence of such lawful authority the detention was illegal
Kapur J speaking on behalf of the Court referred with approval to the observations of Lord Atkin 1  1  453 in Eshugbayi Eleko s case supra and pointed out It is the same A jurisprudence which has been adopted in this country on the basis of which the courts of this country exercise jurisdiction
These observations were relied upon on behalf of the detenus to contend that the principle of rule of law in Eshugbayi Eleko s case supra was held by this Court to have been adopted in this country and it must there fore be enforced independently of Article 21
But I do not think that is the elect of these observations
What Kapur J said was only this namely that the principle of rule of law in Eshugbayi Eleko s case supra had been adopted in this country
He did not make it clear how it had been adopted nor did he say that it had been adopted as a distinct and independent principle apart from the fundamental rights
There can be no doubt that the principle in Eshogbayi Eleko s case Supra had been adopted in this country in Article 21 to the extent to which it protects personal liberty
I will therefore be seen that there is no decision of this Court which says that there is a right of personal liberty based on the rule of law distinct and independent from that guaranteed by Article 21
I must now turn to the decision of this Court in Makhan Singh vs State of Punjab supra on which very strong reliance was placed on behalf of the detenus
That was a decision given in a batch of twenty six appeals from the decisions of the High Courts of Bombay and Punjab
The appellants in these six appeals were detained respectively by the Punjab and the Maharashtra State Governments under Rule 30ib of the Defence of India Rules made by the Central Government in exercise of the powers conferred on it by section 3 of the Defence of India ordinance 1962
They applied to the Punjab and the Bombay High Courts respectively under section 4911 b of the Code of Criminal Procedure and alleged that they had been improperly and illegally detained
Their contention was that section 3215i and section 40 of the Defence of India Act 1962 which replaced the Defence of India ordinance and Rule 30lb under which they were detained were constitutionally invalid because they contravened their fundamental rights under articles 14 21 and 224 5 and 7 of the Constitution and so they claimed that an order should be passed in their favour directing the respective State Governments to set them at liberty There was in operation at that time a Proclamation of Emergency dated 26th October 1962 issued by the President under article 352 clause 1  on account of the Chinese aggression
The President had also issued an order dated 3rd November 1962 under article 359 clause 1 suspending the right of any person to move any court for the enforcement of the rights conferred by articles 21 and 22 if such person has been deprived of any such rights under the Defence of India ordinance 1962 4 of 1962 or any rule or order made thereunder
 The contention of the State Governments based on this Presidential order was and that contention found favour with both High Courts that the Presidential order created a bar which precluded the appellants from maintaining the petitions under section 491 1b of the Code of criminal Procedure
On this contention
two questions arose for determination before this Court
The first was as to what was the true scope and effect of the Presidential order and the second was whether the bar created by the Presidential order 454 operated in respect of applications made by the appellants under section 4911 b of the Code of Criminal Procedure
This Court in a majority judgment delivered by Gajendragadkar J analysed the pro visions of article 359 clause 1 and held that the words any court in that Article must be given their plain grammatical meaning and must be construed to mean any court of competent jurisdiction which would include the Supreme Court and the High Courts before which the specified rights can be enforced by the citizens
The majority judgment then proceeded to add The sweep of 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 lt is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is in substance seeking to enforce any of the said specified fundamental right Having thus disposed of the first question the majority judgment went on to consider the second question and after analysing the nature of the proceedings under section 4911b of the Code of Criminal Procedure held that the prohibition contained in article 359 clause 1 and the Presidential order would apply as much to proceedings under section 491  1  b as to those under article 2261 and article 32 1
It was obvious that on this view the petitions under section 4911b were not maintainable since the only ground on which they challenged the orders of detention was that the provisions of section 3215i as well as rule 30lb were invalid as offending against Articles 14 21 and 22 and in the circumstances it was not necessary for the
 Court to express any opinion on the questions to what were the pleas available to a citizen under the Presidential order in challenging the legality or propriety of his detention
Still however the majority judgment proceeded to give its opinion on this question in the following terms It still remains to consider what are the pleas which are now open to the citizens to take ill challenging the legality or the propriety of their detentions either under section 4911 b 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 lights conferred by Part III as may be mentioned in the order
If in challenging the validity of his detention order the detenu is pleading any right outside the rights specified in the order his right to move any court in that behalf is not suspended because it is outside article 359l 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
455 Take also a case where the detenu moves the Court for A a writ of habeas corpus on the ground that his detention has been ordered malafide
It is hardly necessary to emphasise that the exercise of a power malafide is wholly outside the scope of the Act conferring the power and can always be successfully challenged
It is true that a mere allegation that the detention is malafide would not be enough the detenu will have to prove the malafides
But if the malafides are alleged the detenu cannot be precluded from substantiating his plea on the ground of the bar created by article 3591 and the Presidential order
That is another kind of plea which is outside the purview of article 3591
We ought to add that these categories of pleas have been mentioned by us by way of illustration and so they should not be read as exhausting all the pleas which do not fall within the purview of the Presidential order
 The strongest reliance was placed on behalf of the detenus on these observations in the majority judgment
It was contended on behalf of the detenus that the observations clearly showed that if an order of detention is challenged on the ground that it is in violation of the mandatory provisions of the Act or is made malafide such a plea would be outside article 359 clause 1 and would not be barred by a Presidential order specifying article 21
The detenus in support of this contention leaned heavily on the words 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 and that is another kind of plea which is outside the purview of article 3591 occurring in these observations and urged that such a plea was held to be permissible because it was outside the purview of Art 359 clause 1 and not because it was outside the terms of the particular Presidential order
Now at first blush these observations do seem to support the contention of the detenus
But there are two very good reasons why I do not think these observations can be of much help in the determination of the question before us
In the first place the questions to what were the other pleas available to a detenu in challenging the legality or propriety of his detention despite the Presidential order dated 3rd November 1962 was not in issue before the Court and did not fall to be decided and the aforesaid observations made by the Court on this question were therefore clearly obiter
These observations would undoubtedly be entitled to great weight but as pointed out by this Court in H Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur  Ors
vs Union of India1 an obiter cannot take the place of the ratio
Judges are not oracles
These observations do not therefore have any binding effect and they cannot be regarded as conclusive on the point
Moreover it must be remembered that when we are considering the observations of a high judicial authority like this Court the greatest possible care must be taken to relate the observations of a judge to the precise issues before him 1  456 and to confine such observations even though expressed in broad terms in the general compass of the question before him unless the makes it clear that he intended his remarks to have a wider ambit
It is not possible for judges always to express their judgments so as to exclude entirely the risk that in some subsequent case their language may be misapplied and any attempt at such perfection of expression can only lead to the opposite result of uncertainty and even obscurity as regard the case in hand
It may be noted that in this case the Presidential order dated 3rd November 1962 which came up for consideration before the Court was a conditional order inasmuch as it operated to suspend the right of any person to move any court for enforcement of the rights conferred by Articles 21 and 22 only if he was deprived of any such rights under the Defence of India Act 1962 or any rule or order made under it
It was in the context of this Presidential order that the aforesaid observations were made by this Court
It is obvious that on the terms of this Presidential order if a person was deprived of his personal liberty otherwise than in accordance with the provisions of the Defence of India Act 1962 or any rule or order made under it his right to move the Court for enforcement of his right of personal liberty under Article 21 would not be barred by the Presidential order
That is why it was said in this case that if the detention is illegal for the reason that the mandatory provisions of the Defence of India Act 1962 or any rule or order made thereunder have been contravened or that the detention has been ordered mala fide such a plea would not fall within the terms of the Presidential order and hence it would be outside the purview of article 359 clause 1
That is the only way in which these observations can and must be understood
It was pointed out by the House of Lords as far back as 1901 in Queen vs Leathaml Every judgment must be read as applicable to the particular facts proved or assumed to be proved since the generality of the expressions which may be found there are not intended to be exposition of the whole law but are governed and qualified by the particular facts in which such expressions are to be found
 This Court had also occasion to point out in the State of Orissa vs Sudhansu Sekhar Misra  that the observations in a judgment must be only in the context of the question that arose for decision
 It would not be right as observed by this Court in Madhav Rao vs Union of India supra to regard a word a clause or a sentence occurring in a judgment of this Court divorced from its context as containing a full exposition on the law on a question particularly when the question did not even fall to be answered in that judgment
Here in the present case unlike the Presidential order dated 3rd November 1962 which was a conditional order the Presidential order dated 27th June 1975 is on the face of it
an unconditional one and as such there is a vital difference ill effect between the Presidential order dated 3rd November 1962 and the present Presidential order
In fact it appears that because of the interpretation and effect of the Presidential Order dated 3rd November 962 given in this case and the subsequent cases following it the President deliberately and advisedly departed from the earlier precedent and 1  2  457 made the present Presidential order an unconditional one
These observations made in the context of a conditional Presidential order cannot therefore be read as laying down that a plea that an order of detention is not in accordance with the provisions of law or is mala fide is outside the purview of article 359 clause 1 and would not be barred even by an unconditional Presidential order such as the one we have in the present case
This distinguishing feature of Makhan Singh s case
supra was
in fact highlighted and emphasised in the subsequent decision of this Court in A Nambiar vs Chief Secretary1
There Gajendragadkar CJ stressed the conditional nature of the Presidential order dated 3rd November 1962 and indicated that it was in view of the last clause of the Presidential Order that the aforesaid observations were made by this Court in Makhan Singh s case
The learned Chief Justice explained the position in the following words 
In Makhan Singh Tarsikka vs The State of Punjab a Special Bench of this Court has had occasion to consider the effect of the Proclamation of Emergency issued by the President and the Presidential order with which we are concerned in the present writ petitions this Court took the precaution of pointing out that as a result of the issue of the 1 Proclamation of Emergency and the Presidential order a citizen would not be deprived of his right to move the appropriate court for a writ of habeas corpus on the ground that his detention has been ordered mala fide
Similarly it was pointed out that if a detenu contends that the operative provisions of the Defence of India ordinance under which he is detained suffer from the vice of excessive delegation the plea thus raised by the detenu cannot at the threshold be said to be barred by the Presidential order because in terms it is not a plea which is relateable to the fundamental rights specified in the said order
Let us refer to two other pleas which may not fall within the purview of the Presidential Order
If the detenu who is detained under an order passed under Rule 301 b contends that the said order has been passed by a delegate outside the authority conferred on him by the appropriate Government under section 40 of the Defence of India Act or it has been exercised inconsistently with the conditions prescribed in that behalf
 a preliminary bar against the competence or the detenu s petition cannot be raised under the Presidential order because the last clause of the Presidential order would not cover such a petition and there is no doubt that unless the case falls under the last clause of the Presidential order the bar created by it cannot be successfully invoked against cl decided
Therefore our conclusion is that the learned Additional Solicitor General is not justified in contending that the present petitions are incompetent under article 32 because of the Presidential Order
The petitioners contend that the relevant Rule under which the 1 458 impugned orders of detention have been passed is invalid on grounds other than those based on articles 14 19 21 and 22 and if that plea is well founded the last clause of the presidential Order is not satisfied and the bar created by it suspending the citizens  fundamental rights under Articles 14 21 and 22 cannot be pressed into service These observations and particularly the portions underlined by me clearly show that it was because of the conditional nature of the Presidential Order that the view was taken that if a detenue contents that the order of detention has been made mala fide or that it has been passed by a delegate outside the authority conferred on him under the Act or that it has been exercised inconsistently with the conditions prescribed in that behalf that is it is not in accordance with the provisions of law such a plea would not be barred at the threshold by the Presidential order
The conditional nature of the Presidential order was also stressed by this Court in State of Maharashtra vs Prabhakar Pandurang Sangzgiri1 where this Court speaking through Subba Rao J pointed out that in view of the last cause of the Presidential order if a person was deprived of his personal liberty nor under the Act or a rule or order made thereunder but in contravention thereof his right to move the said courts that is the High Court and the Supreme Court in that regard would not be suspended 
lt was then contended on behalf of the detenus that in any event the right of personal liberty is a natural right which inheres in every one from the moment of his birth and this right can always be enforced by the detenus under article 226 by a writ for any other purpose and the Presidential order does not operate as a bar
When in answer to this contention the Union of India and the State Governments relied on High Holiness Kesavananda Bharati Sripadagalavaru vs State of
Kerala2 the detenus urged that Kesavanand Bharati s case supra did not say that there is no natural right inhering in a person but all that it said was that natural rights do not stand in the way of amendment of the Constitution
Kesavanand Bharati s case supra according to the detenus did not negative the existence and enforceability of natural rights
But this contention of the detenus is clearly belied by the observation from the judgments of at last seven of the judges who decided Kesavanand Bharati s case supra
Ray C J said at pages 419 of the Report Fundamental rights are conferred by the Constitution
There are no natural rights under our Constitution
 Palekar J also said at page 594 of the Report The so called natural rights have in course of time lost their utility as such in the fast changing world and are recognised in modern political constitutions only to the extent that organised society is able to respect them So also Khanna J said at page 703 of the Report  the later writers have generally taken the view that natural rights have no proper place outside the constitution and the laws of the State
It is up to the State to incorporate natural rights or such 1 1966 I section C R 702
2 1963 Supp
section C R 1
459 of them as are deemed essential and subject to such limitations as are considered appropriate in the constitution of the laws made by it
But independently of the constitution and the laws of the State natural rights can have no legal sanction and cannot be enforced
 Mathew J too spoke to the same effect when he said at page 814 of the Report Although called rights  they are not per se enforceable in courts unless recognised by the positive law of a State
Beg J also discounted the theory of natural rights at pages 881 and 882 of the Report and Dwivedi J Observed at page 910 of the Report that to regard fundamental rights as natural rights overlooks the fact that some of These rights did not exist before the Constitution and were begotten by our specific national experience
Chandrachud J was equally emphatic in saying at pages 975 and 976 of the Report that There is intrinsic evidence in Part III of the Constitution to show that the theory
Of natural rights was not recognised by our constitution makers The natural theory stands by and large repudiated today The belief is now widely held that natural rights have no other than political value
It may be pointed out that Subba Rao J also in l
C GolakNath  Ors vs Slate of Punjab1 at page 789 of the Report rejected the theory of natural rights independent and apart from fundamental rights in Part III
He said 
Fundamental rights are the modern name for what have been traditionally known as natural rights
There is therefore no scope for the contention that even if the enforcement of the Fundamental right conferred by Article 21 is suspended by the Presidential order the detenu can still enforce a supposed natural right of personal liberty in a court of law
I may also refer to one other argument advanced on behalf of the detenus that in any event the right not to be deprived of personal liberty except by authority of law is a statutory right which can be enforced despite the Presidential order suspending enforcement of the right of personal liberty guaranteed under Article 21
I agree and there can be no doubt about it that if the positive law of the State decrees that no person shall be deprived of his personal liberty except according to the procedure prescribed by law the enforcement of such statutory right would not be barred by the Presidential order
But 1 am afraid the premise on which this argument is founded is incorrect
There is no legislation in which country which confers the right of personal liberty by providing that there shall be no deprivation of it except in accordance with law
On the contrary section 18 of the enacts that no person in respect of whom an order of detention is made or purported to be made under section 3 shall have any right to personal liberty by virtue of natural law or common law
if any
The Indian Panel Code in section 342 undoubtedly makes it penal to wrongfully confine any person and the offence of wrongful confinement postulates that no one shall be deprived of his personal liberty except by authority of law
But it can hardly be said on that acount that section 342 of the Indian Penal Code confers a right of personal liberty
The utmost that can be said is that this section proceeds on a recognition of the right of personal 1  460 liberty enacted in Article 21 and makes it an offence to wrongfully confine a person in breach of the right conferred by that constitutional provision
Then I must refer to one other contention of the detenus and that is that the remedy under Article 226 can be invoked not only for the purpose of enforcement of the fundamental rights but also for any other purpose
These words greatly enlarge the jurisdiction of the High Court and the High Court can issue a writ of habeas corpus if it finds that the detention of a person is illegal
It is not necessary for this purpose that the court should be moved by the detenu
It is sufficient if it is moved by any person affected by the order of detention
When it is so moved and it examines the legality of the order of detention it does not enforce the right of personal liberty of the detenu but it merely keeps the executive within the bounds of law and enforces the principle of legality
The remedy of habeas corpus is a remedy in public law and hence it cannot be excluded by suspension of enforcement of the right of an individual
This contention of the detenus does appear at first sight to be quite attractive but I am afraid it is not well founded
It fails to take into account the substance of the matter
When an applicant moves the High Court for a writ of habeas corpus he challenges the legality of the order of detention on the ground that it is not in accordance with law
That challenge proceeds on the basis that the executive cannot deprive a person of his personal liberty except by authority of law and that is why the order of detention is bad
But once it is held that the obligation of the executive not to deprive a person of his personal liberty except in accordance with law is to be found only in Article 21 and no where else it must follow necessarily that in challenging the legality of the detention what the applicant claims is that there is infraction by the executive of the right of persona liberty conferred under Article 21 and that immediately attracts the applicability of the Presidential order
If we look at the substance of the matter and analyse what is it exactly that the High Court is invited to do it will be clear that what the applicant wants the High Court to do is to examine whether the executive has carried out the obligation imposed upon it by Article 21 not to deprive a person of his persona liberty except according to the procedure prescribed by law and if it finds that the executive has failed to comply with this obligation then to strike down the order of detention
That is precisely what is not permitted to be done by the Presidential order for it plainly amounts to enforcement of the right of personal liberty conferred by Article 21
The words any other purpose cannot be availed of for the purpose of circumventing the constitutional inhibition flowing from the Presidential order
It is necessary to point out that article 359 clause 1 and the Presidential order issued under it do not have the effect of making unlawful actions of the executive lawful
There can be no doubt that the executive is bound to act in accordance with law and cannot that the command of law
The executive cannot also act to the detriment of a person without authority of law or except in accordance with law
If the executive takes any action which is not supported by law or is 461 contrary to law its action would be unlawful
This unlawful characteristic of the action is not obliterated by the Presidential order issued under article 359 clause 1
Article 359 clause 1 and the Presidential Order issued under it do not give any power to the executive to alter or suspend or flout the law nor do they enlarge the power of the executive so as to permit it to go beyond what is sanctioned by law They merely suspend the right of a person to move any court for redress against the unlawful action of the executive if his claim involves enforcement of any of the fundamental rights specified in the Presidential order
This is a position akin in some respects to that in the United States when the privilege of the writ of habeas corpus is suspended under article l Placitium 9 clause 2 of the United States Constitution and in Great Britain when the Habeas Corpus Suspension Act is passed
It must inevitably follow from this position that as soon as the emergency comes to an end and the Presidential order ceases lo be operative the unlawful action of the executive becomes actionable and the citizen is entitled to challenge it by moving a court of law
It will be clear from what is stated above that whilst a Presidential order issued under Article 359 clause 1 is in operation the rule of law is not obliterated and it continues to operate in all its vigour
The executive is bound to observe and obey the law and it cannot ignore or disregard it
If the executive commits a breach of the law its action would be unlawful but merely the remedy would be temporarily barred where it involves enforcement of any of the fundamental rights specified in the Presidential order
This would be obvious if we consider what would be the position under the criminal law
If the executive detains a person contrary to law or shoots him dead without justifying circumstances it would clearly be an offence of wrongful confinement in one case and murder in the other punishable under the relevant provisions of the Indian Penal Code unless the case falls within the protective mantle of section 76 or 79 and the officer who is responsible for the offence would be liable to be prosecuted if there is no procedural bar built by the Code of Criminal Procedure against the initiation of such prosecution
The Presidential order suspending the enforcement of Article 21 would not bar such a prosecution and the remedy under the Indian Penal Code would be very much available
The offence of wrongful confinement or murder is an offence against the society and any one can set the criminal law in motion for punishment of the offender
When a person takes proceedings under the Code of Criminal Procedure in connection with the offence of wrongful confinement or murder or launches a prosecution for such offence he cannot be said to be enforcing the fundamental right of the detenu or the murdered man under Article 21 so as to attract the inhibition of the Presidential order
So also if a positive legal right is conferred on a person by legislation and he seeks to enforce it in a court it would not be within the inhibition of a Presidential order issued under Article 359 clause1
Take for example the class of cases of detention where no declaration has been made under sub sections 2 and 3 of section 16A This category would cover cases where orders of detention have been passed 462 prior to June 25 1975 because in such cases no declaration under subsections 2 or 3 of section 16A is contemplated and it would also cover the rather exceptional cases where orders of detention have been made after 25th June 1975 without a declaration under sub section 2 or sub section 3 of section 16A Sections 8 to 12 would continue to apply in such cases and consequently the detaining authority would be under an obligation to refer the case of the detenu to the Advisory Board and if the Advisory Board reports that there is in its opinion no sufficient cause for the detention of the detenu the State Government would be bound to revoke the detention order and release the detenu That is the plain requirement of sub section 2 of section
Now suppose that in such a case the State Government fails to revoke the detention order and release the detenu in breach of its statutory or obligation under sub section 2 of section 12
Can the detenu not enforce this statutory obligation by filing a petition for writ of mandamus The answer must obviously be he can
When he files such a petition for a writ of mandamus he would be enforcing his statutory right under sub section 2 of section 12 and the enforcement of such statutory right would not be barred by a Presidential order specifying Article 21
T he Presidential order would have no operation where a detenu is relying upon a provision of law to enforce a legal right conferred on him and is not complaining of absence of legal authority in the matter of deprivation of his personal liberty
I may also refer by way of another illustration to section 57 of the Code of Criminal Procedure Code 1973
This section provides that no police officer shall retain in custody a person arrested without warrant for a longer period than under all the circumstances of case is reasonable and such period shall not in the absence of a special order of a magistrate under section 167 exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the magistrate s court
There is clearly a legal injunction enacted by this section requiring a police officer not to detain an arrested person in custody for a period longer than 24 hours without obtaining a special order of a magistrate and to release him on the expiration of such period of 24 hours if in the meantime such special order is not obtained
If in a given case an arrested person is detained in custody by the police officer for a period longer than 24 hours without obtaining an order of a magistrate can he not apply to the magistrate that he should be directed to be released by the police officer under section 57  Would such an application be barred by a Presidential order specifying article 21 I do not think so
When the arrested person makes such an application he seeks to enforce a statutory obligation imposed on the police officer and a statutory right created in his favour by section 57 and that would not be barred because what is suspended by a Presidential order specifying article 21 is the right to move the court for enforcement of the fundamental right conferred by that Article and not the right to move the court for enforcement of the statutory right to be released granted under section 57
I may take still another example to illustrate the point I am making
Take a case where an order of detention has been made without a declaration under subsection 2 or sub section 3 of section 16A
463 Sections 8 to 12 would admittedly apply in such a case and under section 8 A the detaining authority would be bound to communicate to the detenu the grounds on which the order of detention has been made and to afford him the earliest opportunity of making a representation to the appropriate government
If in a given case the detaining authority declines to furnish the grounds of detention to the detenu or to afford him an opportunity of making a representation in violation of the statutory right conferred on him under section 8 can be detenu not enforce this statutory right by filing a petition for a writ of mandamus against the detaining authority  Would it be any answer to such an application that the enforcement of the fundamental right conferred by article 22 clause 5 has been suspended by the Presidential order The answer is plainly No
There are two rights which the detenu has in this connection one is the fundamental right conferred by article 22 clause 5 and the other is the statutory right conferred by art 22
Though the contention of both these rights is the same they have distinct and independent existence and merely because enforcement of one is suspended it does not mean that the other also cannot be enforced
The theory of reflection  which found favour with the Kerala High Court in Fathima Beebi vs M K Ravindranathanl is clearly erroneous
I the right conferred under section 8 were 1 reflection of the fundamental right conferred by Article 22 clause S as the Kerala High Court would have us believe the removal of the fundamental right under Article 22 clause S which is the object reflected must necessarily result in the effacement of the right under section 8 which is said to constitute the reflection
But even if Article 22 clause S were deleted from the Constitution section 8 would still remain on the statute book until repealed by the legislature
The Presidential order would not therefore bar enforcement of the right conferred by section 8
To my mind it is clear that if a petition or other proceeding in court seeks to enforce a positive legal right conferred by some legislation it would not be barred by the Presidential order
I may also point out that in the present case if I had taken the view that there is
independently and apart from Article 21 a distinct and separate right not to be deprived of personal liberty except according to law I would have held without the slightest hesitation that the Presidential order suspending enforcement of the fundamental right conferred by Article 21 does not have the effect of suspending enforcement or this distinct and separate legal right
But since I have come to the conclusion for reasons already discussed that there is no such distinct and separate right of personal liberty apart from and existing side by side with Article 21 it must be held that when a detenu claims that his detention is not under the Act or in accordance with it he seeks to enforce the fundamental right conferred by Article 21 and that is barred by the Presidential order
Of course this does not mean that whenever a petition for a writ of habeas corpus comes before the Court it must be rejected straightaway without even looking at the averments made in it
The Court would have to consider whether the bar of the Presidential Order is attracted and for that purpose the Court would have to see whether the order of detention is one made by an authority empowered to pass I 464 such an order under the Act if it is not it would not be State action and the petition would not be one for enforcement of the right conferred by Article 21
On this view in regard to the interpretation of the constitutional provision it is unnecesasry to go into the question of construction and validity of section 18 of the Act
It was strongly urged upon us that if we take the view that the Presidential order bars the right of a person to move a court even when his detention is otherwise than in accordance with law there would be no remedy against illegal detention
That would encourage the executive to disregard the law and exercise arbitrary powers of arrest
The result would be so ran the argument that the citizen would be at the mercy of the executive every one would be living in a state of constant apprehension that he might at any time be arrested and detained personal liberty would be at an end and our cherished values destroyed
Should we accept a construction with such fearful consequences was the question posed before us
An impassioned appeal was made to us to save personal liberty against illegal encroachments l by the executive
We were exhorted to listen to the voice of judicial conscience as if judicial conscience were a blithe spirit like Shelley s Skylark free to sing and soar without any compulsions
I do not think I can allow myself to be deflected by such considerations from arriving at what I consider to be the correct construction of the constitutional provision
The apprehensions and fears voiced on behalf of the detenus may not altogether be ruled out
It impossible that when past powers are vested in the executive the exercise of which is immune from judicial scrutiny they may sometimes be abuse d and innocent persons may be consigned to temporary detention
But merely because power may sometimes be abused it is no ground for denying the existence of the power
All power is likely to be abused
That is inseparable from the nature of human institutions
The wisdom of man has not yet been able to conceive of a government with power sufficient to answer its legitimate end and at the same time incapable of mischief
In the last analysis a great deal must depend on the wisdom and honesty integrity  and character of those who are incharge of administration and the existence of enlightened and alert public opinion
It was Lord Wright who said in Liversidge vs Siglov Anderson supra that the safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved
 It is true that if in a situation of emergency judicial scrutiny into legality of detention is held to be barred by a Presidential order specifying Article 21 illegalities might conceivably be committed by the executive in exercise of the power of detention and unlawful detentions might be made against which there would be no possibility of redress
The danger may not be dismissed as utterly imaginary but even so the fact remains that when there is crisis situation arising out of an emergency it is necessary to best the Government with extra ordinary powers in order to enable it to overcome such crisis situation and restore normal conditions
Even Harold Laski conceded in his article on Civil Liberties in Great Britain in Wartime that the necessity of concentrating immense power in a Government waging total war is 465 beyond discussion and what he said there regarding a Government A waging total war must apply equally in relation to a Government engaged in meeting internal subversion or disturbance for the two stand on the same footing so far as our Constitution is concerned
Now when vast powers are conferred on the executive and judicial scrutiny into the legality of exercise of such powers is excluded it is not unlikely that illegalities might be committed by the executive in its efforts to deal with the crisis situation
Dicey in his Introduction to the study of Law of the Constitution frankly admits that it is almost certain that when the suspension of the Habeas Corpus Act makes it possible for the Government to keep suspected persons in a prison for a length of time without bringing them to trial a smaller or greater number of unlawful acts will be committed if not be the members of Ministry themselves it any rate by their agents
 But howsoever unfortunate this situation might be that cannot be helped
The Constitution permits judicial scrutiny to be barred during times of emergency because it holds that when a crisis arises in the life of the nation the rights of individuals must be postponed to considerations of State and national safety must override any other considerations
I may add that there is nothing very unusual in this situation because as already pointed out above such a situation is contemplate even in countries like the United States of America and Great Britain which are regarded as bastions of democracy
But at the same time it must be remembered by the executive that because judicial scrutiny for the time being is excluded its responsibility in the exercise of the power of detention is all the greater
The executive is under an added obligation to take care to see that it acts within the four corner of the law and its actions are beyond reproach
It must guard against misuse or abuse of power for though such misuse or abuse may yield short term gains it is a lesson of history which should never be forgotten that ultimately means have a habit of swallowing up ends
Before I leave this question I may point out that in taking the view 1 have T am not unaware of the prime importance of the rule of law which since the dawn of political history I both in India of Brahadaranyaka Uunishad and Greece of Aristotle has tamed arbitrary exercise of power by the government and constitutes one of the basic tenets of constitutionalism
I am not unmindful of the famous words of Lord Atkin in his powerful dissent in Liversidge vs Andersonsupra that amid the clash of arms and much more so in a situation of emergency arising from threat of internal subversion laws are not silent
They may be changed but they speak the same language in war and in peace
I am also conscious and if I may once again quote the words of that great libertarian Judge Judges are no respector of persons and stand between the subject and any attempted encroachments on his liberty by the executive alert to see that any coercive action is justified in law
But at the same time it cant be overlooked that in the ultimate analysis the protection of persona liberty and the supremacy of law which sustains it must be governed by the constitution itself
The Constitution is the paramount and supreme law of the land and if it says that even if a person is detained otherwise than in accordance with the law he shall not be entitled to enforce his right of personal liberty whilst a Presidential order under 3 2 833SCI76 466 Article 359 clause l specifying Article 21 is in force I have to give effect to it
Sitting as l do as a Judge under the constitution I cannot ignore the plain and emphatic concerned of the Constitution or what I may consider to be necessary to meet the end of justice
It is said that law has the feminine capacity to tempt each devotee to find his own image in her bosom
No One escapes entirely
Some yield badly some with sophistication
Only a few more or less effectively resist
I have always leaned in favour of upholding personal liberty for I believe it is one of the most cherished values of mankind
Without it life would not be worth living
It is one of the pillars of free democratic society
Men have readily laid down their lives at is altar in order to secure it protect it and preserve it
But I do not think it would be right for me W allow my love of personal liberty to cloud my vision or to persuade me to place on the relevant provision of the constitution a construction which its language cannot reasonably bear
I cannot assume to myself the role of Plato s Philosopher king s in order to render what I consider ideal justice between the citizen and the State
After all the Constitution is the law of all laws and there alone judicial conscience must find its ultimate support and its final resting place
It is in this spirit of humility and obedience to the Constitution and driven by judicial compulsion that I have come to the conclusion that the Presidential order dated 27th June 1975 bars maintainability of a writ petition for habeas corpus there an order of detention is challenged on the ground that it is mala fide or not under the Act or not in compliance with it
On the view I have taken in regard to the answer to be given to the first question it would be unnecessary to consider the second question but since the second question has been debated fully and elaborate arguments have been l advanced before us touching not only the interpretation but also the validity of sub section 9 a of section 16A I think it will be desirable if I pronounce my opinion on this question as well
But before I proceed to do sot I may make it clear once again that though this question is framed in general terms and so framed it invites the Court to consider the area of judicial security in a petition for a writ of habeas corpus it is not really necessary to embark on a consideration of this issue since it was conceded by the learned Attorney General and in my opinion rightly that the area of judicial scrutiny remains the same as laid down in the decision of this Court subject only to such diminution or curtailment as may be made by sub section 9a of section 16A
The learned Additional Solicitor General  who argued this question on behalf of the Union of India took us through various decisions of English courts on the issue as to what is the nature of the jurisdiction which the Courts on the issue as to what is the nature of the jurisdiction which the Court exercises in a petition for a writ of habeas corpus and what is the manner in which such jurisdiction must be exercised
it is not necessary for the purpose because the practice in our country in regard to the exercise of this jurisdiction  as it has evolved over the years as a result of the decisions of this Court is a little different from that prevailing in England
This court has never insisted on strict rules of pleading in cases involving the liberty of a person nor placed undue emphasis on the question as to on whom the burden of proof lies
Even a postcard written by a 467 detenu from jail has been sufficient to activise this Court into examining the legality of detention
This Court has consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima facie case invalidating The order of detention
Whenever a petition for a writ of habeas corpus has come up before this Court it has almost invariably issued a rule calling upon the detaining authority to justify the detention
This Court has any occasions point out that when a rule is issued it is incumbent on the detaining authority to satisfy the Court that the detention of the petitioner is legal and in conformity with the mandatory provisions of the Act
Vide Naranjan Singh vs State of Madhya pradesh1 Saikh hanif Gudma Majhi  Kamal Saha vs State of West Bengal 2 and Dulal Roy vs The District Magistrate Burdwan ors3 
It has also been insisted by this court that in answer to the Rule the detaining authority must place all the relevant facts before the Court which would show that the detention is in accordance with the detention is in accordance the provisions of the Act
It would be no argument on the part of the detaining authority to say that particular ground is not taken in the petition 
vide Nizamuddin vs The State of West Bengal 4 Once the Rule is issued it is the bounden duty of the Court to satisfy itself that all the safeguards provided by law have been scruplously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law
Vide Mohd Alam vs State of West Bengal 5 and Khudiram Das vs state of West Bengal  Ors6 This practice marks a slight departure from that obtaining in England but it has been adopted by this court in view of the peculiar socio economic conditions prevailing in the country
Where large masses of people are poor illiterate and ignorant and access to the courts is not easy on account of lack of financial resources it would be most unreasonable to insist that the petitioner should set out clearly and specifically the grounds on which he challenges the order of detention and make our a prima facie case in support of those grounds before a rule can be issued on he petition and when the Rule is issued the detaining authority should not be liable to do any thing more than just meet the specific grounds of challenge put forward by the petitioner in the petition
Of course I must make it clear that where an order of detention is challenged as mala fide a clear and specific averment to that effect would have to be made in the petition and in the absence of such averment the court would not entertain the plea of mala fide
The petitioner would have to make out a prima facie case of mala fide before the detaining authority can be called upon to meet it
Whether a prima facie case has been made out or not would depend on the particular facts and circumstances of each case but the test would be whether the prima facie case made out is of such a nature that the Court feels that it requires investigation
The Court would then investigate and decide the question of mala fide on the basis of the material which may be placed before it by both parties
468 What is the area of judicial scrutiny in a petition for a writ of habeas corpus has been laid down by this Court is numerous decisions
It is not necessary to refer to all these decisions since there is one recent decision namely Khudiram Das vs State of West Bengal supra where the entire law on the subject has been reviewed by a Bench of four judges of this Court
There the effect of the previous decisions has been considered and the law has been summarised at pages 843 to 845 of the Report in a judgement delivered by me on behalf of the Court
I have carefully listened to the most elaborate arguments advanced before us in this case and even after giving my most serious consideration to them I still adhere to all that I said in Khudiram Das s case supra
I maintain that the subjective satisfaction of the detaining authority is liable to be subjected to judicial scrutiny on the grounds enumerated by me in Khudiram Das s case supra and the decision in Khudiram Das s casesupra lays down the correct law on the subject
The only question is how far and to what extent sub section 9 a of section 16A has encroached upon this area of judicial scrutiny and whether it is a valid piece of legislation
Now the first question that arises for consideration is as to what is the correct interpretation of section 16A sub section 9 a
That sub section reads as follows 9 Notwithstanding anything contained in any other law or any rule having the force of law a the grounds on which all order of detention is made or purported to be made under section 3 against any person in respect of whom a declaration is made under sub section 2 or sub section 3 and any in formation or materials on which such grounds or a declaration under sub section 2 or a declaration or confirmation under sub section 3 or the non revocation under sub section 4 of a declaration arc based shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public inter est to disclose and save as otherwise provided in this Act no on shall communicate or disclose any such ground information or material or any document containing such ground information or material the argument urged on behalf of the detenus was that sub section 9 a of section 16A should be read down and construed so as not to exclude the power of the High Court in the exercise of its jurisdiction under Article 226 to call for the grounds information and materials on which the order of detention is made and the declaration under sub section 2 is based with a view to satisfying itself as regards the legality of the detention
It was pointed out on behalf of the detenus that unlike section 54 of Indian Income tax Act l 922 and section 14 of the  sub section 9 a of section 16A does not include any reference to a court and it is clear that it is not directed against the Court
Reliance was also placed on behalf of the detenus on the following statement of the law in Wigmore on Evidence 3rd ed vol 8 at page 801 Article 2379 Any statute declaring in general terms that official records are confidential should 469 be liberally construed to have an implied exception for disclosure when A needed in court of justice and reference was also made to the decision of the English Court in Lee vs Burrell1 in support of the proposition that in a statutory provision like sub section 9 a of section 16A the Court must read an implied exception in favour of the Court and particularly the High Court exercising constitutional Function under Article 226
It was also stressed on behalf of the detenus that if a wider construction is placed on sub section 9 a of section l 6A taking within its sweep the High Court exercising jurisdiction under Article 226 that sub section would be rendered void as offending Article 226 and hence the narrower construction must be preferred which excludes the High Court from the purview of the sub section
This contention attractive though it may seem because it has the merit of saving judicial scrutiny from being rendered ineffectual and illusory is not justified by the plain language of sub section 9 a of section 16A and hence despite these weighty considerations which have been pointed out on behalf of the detenus I find myself unable to accept it
It is true that sub section 9 a of section 16A does not specifically refer to any court
It does not say in so many terms as did section 54 of the Indian lncome tax Act 1922 that no court shall require any officer to produce before it the grounds information and materials on which the order of detention is made or the declaration under sub section 2 or sub section 3 is based nor does it contain any provision like section 14 of the that no court shall allow any statement to be made or any evidence to be given of such grounds information and materials
But there is inherent evidence in the sub section itself to show that it is intended to prevent disclosure of such grounds information and materials before a court
It says that the grounds information and materials on which the order of detention is made or the declaration under subsection 2 or sub section 3 is based shall be treated as confidential and shall be deemed to refer to matters of State and to be against public interest to disclose
There is clearly an echo here of section 123 of the Indian Evidence Act
That section is intended to prevent disclosure in a court of unpublished official records relating to and affairs of State and likewise sub section 9 a of section 16A must also be held to be designed to achieve the same end namely prevent inter alia disclosure in a court
The words shall be treated as confidential and  shall be deemed to be against the public interest to disclose are very significant
If they are to have any meaning at all they must be construed as prohibiting disclosure even to a Court
How can the grounds information and materials referred to in this sub section remain confidential if they can be required to be produced before a court How can they be permitted to be disclosed to a court when the legislature says in so many terms that it would be against the public interest to disclose them
Even if the court holds its sittings in camera there would be a real danger Of leakage and that might in a given case jeopardize national security and weaken the efforts towards meeting the crisis situation arising 1 170 English Reports 402
470 out of the emergency
Vide observations in the speech of Lord Wright at page 266 in Liversidge s case supra 
Sub section 9 a of section 16A cannot therefore be read down as to imply an exception in favour of disclosure to a court
But then it was contended on behalf of the detenus that if on a proper construction of its language sub section 9 a of sectio 16A precludes the High Court ill exercise of its jurisdiction under Article 226 from calling for the production of the grounds ill formation and materials on which the order of detention is made or the declaration under sub section 2 or sub section 3 is based it would impede the exercise of its constitutional power by the High Court and make i t virtually ineffective and hence it would be void as offending Article 226
This contention requires serious consideration
Prima facie it appears to be formidable but for reasons which
I shall immediately proceed to state I do not think it is well founded
There can be no doubt that Article 226 is a constitutional pro vision and it empowers the High Court to issue a writ of habeas corpus for enforcement of the fundamental right conferred by Article 21 and also for any other purpose
The High Court has therefore constitutional power to examine the legality of detention and for that purpose to inquire and determine whether the detention is in accordance with the provisions of law
Now obviously this being a constitutional power it cannot be taken away or abridged by a legislative enactment
If there is any legislative provision which obstructs of retards the exercise of this constitutional power it would be void
There arc several decisions of this Court which recognise and lay down this proposition
It was said by this Court in one of its early decisions in Hari Vishnu Kamath vs Syed Ahemad Ishaque  ors1 that the jurisdiction under Article 226 having been conferred by the Constitution limitation cannot be placed on it except by the Constitution itself So also n Durga Shankar Mehta vs Thakur Raghuraj singh  ors2 this Court while considering the effect of section 105 of the Representation of the People Act 1951 which gave finality to an order made by the Election Tribunal observed that that section cannot cut down and affect the overriding power which this Court can exercise in the matter of grant of special leave under Article 136 and tile same rule was applied to Article 226 in Raj Krushna Bose vs Binoci Kanungo vs ors
where the Court held that section 105 cannot take away or whittle do the power of the High Court under Article 226
The same view was taken by this court in In re The Kerala Education Bill 19574 where section R Das C J speaking on behalf of the Court said in relation to Article 226 that No enactment of a State legislature can as long as that Article stands
take away or abridge the jurisdiction and power conferred on the High Court by that Article
This Court in Prem Chand Garg vs Excise commissioner U P Allahabad actually struck down Rule 12 of order XXXV of the Supreme Court Rules which required the 1 1955 1 section R 1104
2 1955 1 section C R 267
3  4 1959 section C R 995 5 1963 supp
1 section C R 885
471 petitioner in a writ petition under Article 32 to furnish security for A the cost of the respondent on the ground that it retarted or obstructed the assertion or vindication of the fundamental right guaranteed under Article 32 by imposing a pecuniary obligation on the petitioner
The principle of this decision must equally apply in a case there the legislative provision impedes or obstruct the exercise of the constitutional power of the High Court under Article 226
It is therefore clear that if it can be shown that sub section 9 a of section 16A abridges or whittles down the constitutional power of the High Court under Article 226 or obstructs or retards its exercise it would be valid as being in conflict with Article 226
Now it is settled law that when a petition for writ of habeas corpus filed and a Rule is issued it is the bounden duty of the Court to satisfy itself that all the safeguards provided by law have been scrupulously observed and the liberty of the detenu has not been taken away otherwise than in accordance with law Vide Khudiram Das vs State of West Bengal supra
The Court may also for the purpose of satisfying itself as regards the legality of detention call for the record of the case relating to the detention and look into it
That is what the Court did in Biren Dutta  ors vs Chief Com missioner of Tripura  Anrl There an interim order was made by this Court directing that the Chief Secretary to the Tripura Administration shall forthwith transmit to this Court the original file in respect of the detenus concerned since the Court wanted to satisfy itself that the Minister or the Secretary or the Administrator had reviewed the cases of the detenus and arrived at a decision that their detention should be continued
So also in M M Damnoo vs J  K State2 this Court required the State Government to produce the file confining the grounds of detention so that the Court could satisfy itself That the grounds on which the detenu has been detained have relevance to the security of the State
It would therefore be seen that if there is a legislative provision which prohibits disclosure of the grounds information and materials on which the order of detention is based and prevents the Court from calling for the production of such grounds information and materials it would obstruct and retard the exercise of the constitutional power of the High Court under Article 226 and would be void as offending that Article
This was the basis on which section 14 of the The Preventive detention Act 1950 was struck down by this court in A K Gopalan s case supra
That section prohibited the disclosure of the grounds of detention communicated to the person detained and the representation made by him against the order of detention and barred the court from allowing such disclosure to be made except for purposes of a prosecution for such disclosure
It was held by this Court in fact by all the judges who participated in the decision that this section was void as it contravenel inter alia Article 32
Kanta C J Observed at page 130 of the Report in a passage of which certain portions have been underlined by me for emphasis 1  i 2  472 By that section the Court is prevented except for the purpose of punishment for such disclosure from being informed either by a statement or by leading evidence of the substance of the grounds conveyed to the detained person under section 7 on which the order was made or of any representation made by him against such order
It also prevents the Court from calling upon any public officer to disclose the substance of those grounds or from tile production of the proceedings or report of the advisory board which may be declared confidential
It is clear than if this provision is permitted to stand the Court can have nominate rial before it to determine whether the grounds are sufficient or not
I do not mean whether the grounds are sufficient or not
It even prevents the Court from ascertaining whether the alleged grounds of detention have anything to do with the circumstances or class or classes of cases mentioned in section 12la
 Patanjali Sastri Jalso observed to the same effect at page 217 of the Report If the grounds are too vague to enable him to take any such representation or if they are altogether irrelevant to the object of his detention or are such as to show that his detention is not bona fide he has the further right of moving this Court and this remedy is also guaranteed to his under article 32
These rights and remedies the petitioner submits cannot be effectively exercised if he is prevented on pain of prosecution from disclosing the grounds to the Court
There is great force in this contention The argument of the Attorney General overlooks that it was recognised in the decision referred to above that it would be open to the Court to examine the grounds of detention in order to see whether they were relevant to the object which the legislature had in view such as for instance the prevention of acts prejudicial to public safety and tranquillity or were such as to show that the detention was not bona fide
An examination of the grounds for these purposes is made impossible by section 14 and the protection afforded by article 225 and article 32 is thereby rendered nugatory
It follows that section 14 contravents the provisions of article 22 S and article 32 in so far is it prohibits the person detained from disclosing to the Court the grounds of his detention communicated to him by the detaining authority or 
the representation made by him against the order of detention and prevents the Court from examining them for the purpose aforesaid
and to that extent it must be held under article 13 2 to be void emphasis supplied
And so did the other learned Judges
It is clear from what they said that inasmuch as section 14 prohibited the disclosure of the grounds of detention and prevented the Court from looking at 473 Them for the purpose of deciding whether the detention is legal it A was violative of Article 32 which conferred a fundamental right on a detenu to move this Court for impugning the legality of his detention
The same view was taken by a Constitution Bench of this Court in M M Damnoo vs J  K State supra
In fact the observations of Kania C J in A K Gopalan s case supra which I have reproduced above were quoted with approval in this decision
The petitioner in this case challenged the legality of his detention by the State of Jammu  Kashmir on several grounds
One of the grounds was that the proviso to section 8 of the Jammu  Kashmir was void as it conflicted with section 103 of the Constitution of Jammu  Kashmir
Section 103 was in the same term as Article 226 and it conferred power on the High Court of Jammu  Kashmir to issue after alia a writ of habeas corpus Section 8 of the required the detaining authority to communicate to the detenu the grounds on which the order of detention was made but the proviso to that section dispensed with the requirement in case of any person detained with a view to preventing him from acting in any manner pre judicial to the security of the State if the authority making the order directs that the person detained may be informed that it would be against the public interest to communicate to him the grounds on which his detention has been made
The argument of the petitioner was that the proviso to section 8 of the was violative of section 103 since it debarred the High Court and this Court from calling for the grounds of detention and thus made it virtually impossible for the High Court and this Court to examine the legality of the detention
This Court agreed that there would have been some force in the contention of the petitioner if the High Court and this Court were prevented from calling upon the State Government to produce the grounds of detention but it pointed out that the proviso to section 8 was not ultra vires because the proviso and the Act do not bar the High Court and this Court from looking into the validity of the detention
This Court after referring to the observations made by Kania CJ in A K Gopalan s case supra in regard to section 14 of the said But fortunately there is no similar provision in this Act and it leaves the High Court and the Supreme Court free to exercise the jurisdiction by calling upon the State in appropriate cases to produce before it the grounds of detention and other material in order to satisfy itself that the detenu was being detained in accordance with law
If it were not so we would have difficulty in sustaining the proviso
 It will therefore be seen that prima facie this Court was of the view that if the proviso to section 8 had debarred the High Court and this Court from requiring the grounds of detention to be produced before them it would have been difficult to sustain that proviso
The learned Additional Solicitor General however sought to distinguish  these two decisions and contended that sub section 9 a 474 of section 16A merely enacts a rule of evidence and it cannot therefore be said to obstruct or retard the exercise of the constitutional power of the High Court under Article 226 so as to be in conflict with that Article
Now there can be no doubt although at one time in the course of his arguments Mr Shanti Bhushan contended to the contrary that a rule of evidence can always be enacted by the legislature for the purpose of regulating the proceedings before the High Court under Article 226
A rule of evidence merely determines what shall be regarded as relevant and admissible material for the purpose of enabling the Court to come to a decision in the exercise of its jurisdiction and it does not in any way detract from or affect the jurisdiction of the Court and it cannot in the circumstances he violative of Article 226
But in order that it should not fall foul of Article 226 it must be a genuine rule of evidence
If in the guise of enacting a rule of evidence the legislature in effect and substance disables and impedes the High Court from effectively exercising its constitutional power under Article 226 such an enactment would be void
It will be colourable exercise of legislative power
The legislature cannot be permitted to violate a constitutional provision by employing an indirect method If a legislative provision though in form and outward appearance a rule of evidence is in substance and reality something different obstructing or impeding the exercise of the 
jurisdiction of the High Court under Article 226 the form in which the legislative provision is clothed would not save it from condemnation
Let us therefore examine whether sub section 9 a of section 16A enacts a genuine rule of evidence or it is a colourable piece of legislation in the garb of a rule of evidence
If it is the former it would be valid but if it is latter it would be an indirect and covert infringement of Article 226 and hence void
Now it is well settled that in order to determine the true character of a legislative provision we must have regard to the substance of the provision and not its form
We must examine the effect of the provision and not be misled by the method and manner adopted or the phraseology employed
Sub section 9 a of section 16A is in form and outward appearance a rule of evidence which says that the grounds
information and materials on which the order of detention is made or the declaration under sub section 2 or sub section 3 is based shall be treated as confidential and shall be deemed to refer to matter of State and be against the public interest to disclose
But in substance and effect is it a genuine rule of evidence  The argument on behalf of the detenus was that it is only a legislative device adopted by the legislature for the purpose of excluding the grounds information and materials from the scrutiny of the Court and thereby making it virtually impossible for High Court to examine the legality of the detention and grant relief to the detenu
If the veil is removed contended the detenus the position is no different from that obtaining in A K Gopalan s case supra where section 14 of the was struck down as constituting a direct assault on Article 226
It was pointed out that in every case of detention the Grounds information and materials would not necessarily refer to matters of State and be against the public interest to disclose
Since even order 475 of detention purported to be made under section 3 are brought within the purview of sub section 9a of section 16A the grounds information and materials in cases of such detention may be wholly unrelated to the objects and purposes set out in section 3 and in that event they would mostly have nothing to do with matters of State and it may not be possible to say that their disclosure would injure public interest
But even so sub section 9a of section 16A surrounds such grounds information and materials with the veil of secrecy and the use the words of Mahajan J in A K gopalan s case supra places an iron curtain around them
This sub section according to detenus compels the Court to shut its eyes to reality and presume by a legal fiction that in every case whatever be the actuality and many cases the actuality may be otherwise the grounds information and materials shall be deemed to refer to matters of State and shall be against that public interest to disclose
This contention of the detenus is undoubtedly very plausible and it caused anxiety to me t on deeper consideration I think it cannot be sustained
It is significant to note that sub section 9a of section 16A is a provision enacted to meet the emergency declared under the Proclamations dated 3rd December 1971 and 25th June 1975
Vide subjection 1 of section 16A
It comes into operation only when there a declaration made under sub section 2 or sub section 3 that the detention of the person concerned is necessary for dealing effective with the emergency
The condition precedent to the applicability of sub section is that there should be a declaration under sub section 2 or sub section 3 in respect of the person detained
It may also be noted that though the words or purported to be made were added after the words an order of detention is made in the sub section by the Maintenance of Internal Security Amendment Act 1976 no such or similar words were added in relation to the declaration in under sub section 2 or sub section 3
Sub section 9 a of section 16A therefore assumes a valid declaration under subsection 2 or sub section 3 and it is only when such a declaration i been made that sub section 9 a of section 16A applies or n other words it is only in cases where a person is detained in order deal effectively with the emergency that the disclosure of the grounds  information and materials is prohibited by sub section 9 a of section 16A
I have already pointed out how emergency can create a crisis situation imperilling the existence of constitutional democracy and jeopardizing the functioning of the social and political machine
It is therefore reasonable to assume that where a person is detained is order to deal effectively with the emergency the grounds information and materials on which the order of detention is made or the declaration under sub section 2 or sub section 3 is based would
and large belong to a class of documents referring to matters of State which it would be against public interest to disclose
What was observed by two of the Law Lords in Liversidge s case supra would be applicable in such a case
Viscount Maugham said at page 221 of the Report  it is obvious that in many cases he will be acting 476 on information of the most confidential character which could not be communicated to the person detained or disclosed in court without the greatest risk of prejudicing the future efforts of the Secretary of State in this and like matters for the defence of the realm It is sufficient to say that there must be a large number of cases in which the information on which the Secretary of State is likely to act will be of a very confidential nature and Lord Wright also observed to the same effect at page 266 of the Report In these cases full legal evidence or proof is impossible even if the Secretary does not claim that disclosure is against the public interest a claim which must necessarily be made in practically every case and a claim which a judge necessarily has to admit In view of the fact that the detention is made in order to deal effectively with the emergency the grounds information and materials would in most cases be confidential and if a claim of privilege were made under section 123 of the Indian Evidence act it would almost invariably be held justified
The Legislature therefore taking into account the privileged character of the grounds information and materials in the generality of cases enacted sub section 9 a of section 16A laying down a rule that the grounds information and materials shall be deemed to refer to matters of State which it would be injurious to public interest to disclose instead of leaving it to the discretion of the detaining authority to make a claim of privilege in each individual case and the court to decide it
The rule enacted in sub section 9 a of section 16A bears close analogy to a rule of conclusive presumption and in the circumstances it must be regarded as a genuine rule of evidence
I may make it clear that if the grounds information and materials were not by and large of such a character as to fall within the class of documents relating to matters of State which it would be injurious to public interest to disclose I would have found it impossible to sustain this statutory provision as a genuine rule of evidence
If the grounds information and materials have no relation to matters of State or they cannot possibly be of such a character that their disclosure would injure public interest tha Legislature cannot by merely employing a legal fiction deem them to refer to matters of State which it would be against public interest to disclose and thereby exclude them from the judicial ken
That would not be a genuine rule of evidence it would be a colourable legislative device a fraudulent exercise of power
There can be no blanket ban on disclosure of the grounds information and materials to the High Court or this Court irrespective of their true character
That was the reason why section 14 of the was struck down by this Court in A R Gopalan s case supra and this Court said in M M Damnoo s case supra that if the proviso to section 8 had debarred the High Court and this Court from calling for the grounds of detention and looking into them it would have been difficult to sustain that proviso
But here on account of the declaration under sub section 2 or sub section 3 which as I said above must be a valid declaration in order to attract the applicability of sub section 9 a of section 16A the grounds information and materials in almost all cases would be of a confidential character falling within the class of documents privileged under section 123 and hence the rule enacted in the sub section genuinely partakes of the character 477 of a rule of evidence
It may be pointed out that if the declaration A under sub section 2 or sub section 3 is invalid sub section 9 a of section 16A will not be attracted and the grounds information and materials on which the order of detention is made would not be privileged under that sub section
I am therefore of the view that sub section 9 a of section 16A enacts a genuine rule of evidence an it does not detract from or affect the jurisdiction of the High Court under Article 226 and hence it cannot be successfully assailed as invalid
I accordingly answer the first question by saying that the Presidential under dated June 27 1975 bars maintainability of a petition for a writ of habeas corpus where an order of detention is challenged on the ground that it is vitiated by Mala fides legal or factual or is based on extraneous considerations or is not under the Act or is not in compliance with it
So far as the second question is concerned I do not think there is any warrant for reading down sub section 9 a of section 16A so as to imply an exception in favour of disclosure to the Court and on the interpretation placed by me on that provision I hold that it does not constitute an encroachment on the constitutional jurisdiction of the High Court under Article 226 and is accordingly not void
In the circumstances I allow the appeals and set aside the judgments of the High Courts impugned in the appeals
ORDER By majority In view of the Presidential order dated 27 June 1975 no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by malafides factual or legal or is based on extraneous consideration
Section 16A9 of the is constitutionally valid 3
The appeals are accepted
The judgments are set aside 4
The petitions before the High Courts are now to be disposed of in accordance with the law laid down in these appeals


Summary:
174 In exercise of the powers conferred by Clause 1 of article 352 of the Constitution The President of India by proclamation dated December 23 1971 declared that a grave emergency exists whereby the security of India is threatened by external aggression and the Maintenance of Internal Security Act Act 26 of 1971 1971 was published on July 2 1971 for effectively dealing with the emergency
On November 16 1974 the President of India in exercise of the powers conferred by Clause 1 of article 359 of the Constitution declared a that the right to move any court with respect to orders of detention which have already been made or which may hereafter be made under section 31c of the as amended by ordinance ll of 1974 for the enforcement of the rights conferred by Articles 14 21 and Clauses 4 5 6 and 7 of Article 22 of the Constitution and b All proceedings pending in any court or the enforcement of any of the aforesaid rights with respect to all orders of detention made under the said section 31c shall remain suspended for a period of six months from the date of issue of the order
Or the period during which the proclamation of emergency issued under Clause ll of article 352 of the Constitution of India on December 3 1971 is in force whichever period expires earlier
the order stood extended to the whole of the territory of India
On June 20 1975 the President of India amended the above order by substituting 12 months for 6 months  in the order
On June 25 1975 the President in exercise of his powers conferred by Clause 2 of Article 352 of the Constitution declared that a grave emergency exists whereby the security of India is threatened by internal disturbances
On June 27 1975 in exercise of powers conferred by Clause 1 of article 359 the President declared that the right of any person including a foreigner to move any court for the enforcement of the rights conferred by Articles 14 21 and 22 of the Constitution and all proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the proclamation of emergency made under Clause 1 of Act
352 of the Constitution on December 3 1971 and on June 25 1975 are both in
force
The Presidential order of June 27 1975 further stated that the same shall be in addition to and not in derogation of any order made before the date of the aforesaid order under Clause 1 of article 359 of the Constitution
on June 29 l 975 by another order the President made the ordinance of June 27 1975 applicable to the State of Jammu and Kashmir as well
On September 25 1975 the last paragraph in the Presidential order dated June 27 1975 was omitted
The President promulgated the amending ordinances No i and 7 of 1975 and replaced by the Maintenance of Internal Security Amending Act No 39 of 1975 Act introducing a new section 16A and 
giving a deemed effect to section 7 of the Act as on from June 25 1975 while the rest having a deemed effect from June 29 1975
By the same Act a new section 18 was also inserted with effect from June 25 1975
By the Constitution Thirty eighth Amendment Act 1975 Articles 123 213 239b 352 356 359 and 368 were amended
Clauses 4 and 5 were added in article 352 of the Constitution
Broadly stated the Thirty eighth Con Constitution Amendment Act renders the satisfaction of the President or the Governor in the relevant Articles final and conclusive and to be beyond any 
question in any court on any ground
The power conferred on the President by article 352 shall include the power
to issue different proclamations on different grounds being war or external aggression or internal disturbance or imminent danger of war or external aggression or internal disturbance whether or not there is a proclamation already issued by the President By Constitution Thirty Eight Amendment Act l 1975 new Clause 1A was also added after Clause 1 of Article 359
The Constitution Thirty ninth Amendment Act was published on August 10 1975 amending Articles 71 329 and 329A and added Entries after Entry 86 in the 9th Schedule and the Act 26 of 1971 1971 as item 92 in the said Schedule
175 On October 17 1975 on ordinance 16 of 1975 was issued making further amendments ill section 16A of the maintenance of internal Security Act introducing sub Clause 8 and 9 to section 16A On November 16 1975 ordinance 22 of 1975 was issued making certain amendments in the Maintenance of Internal security Act inserting also sub section 2A ill section 16A
All the amendments made by the ordinance were given retrospective effect for the purpose of validating all Acts done previously The said ordinances were published as the Maintenance of Internal Security Amendment Act 1976 Act 14 of 1976 on Janurary  5 1976
The respondents detained under section 3IAii read with section 32 of the maintenance of Internal Security Act Act 26 of 1971 j as amended by the Amendment Act 39 of 1975 1975 challenged in several High Courts the vires of the ordinance issued on June 27 1975 by the President of India as unconstitutional and inoperative in law and prayed for a the setting aside of the said order and b for directing their release forthwith
In come cases they challenged the validity of the Thirty eight and I thirty ninth constitution Amendment Acts
When these petitions came up for hearing the appellant raised the preliminary objection to the maintainability on the ground that in asking For l release by the issuance of a writ of habeas Corpus
the respondents were in substance claiming that they have been deprived of their personal liberty in violation of the procedure established by law which plea was available to them under
article 21 of the Constitution only and in view of the Presidential order dated June 27 1975 suspending the right to move for enforcement of the right conferred by that article the petitions were liable to be dismissed at the threshold
While the High Courts of Andhra Pradesh Kerala and Madras have upheld The preliminary objection this contention did not find favour with the High Courts of Allahabad Bombay Nagpur Bench Delhi Karnataka Madhya Pradesh Punjab and Haryana respectively I these High courts broadly took the view that a despite the Presidential order it is open to the detenus to challenge their detention on the ground that it is ultra vires as for example by showing that the order on the face of it IS passed by an authority not empowered of pass it or it is not in exercise of the power delegated to the authority or that the power has been exercised in breach of the conditions prescribed in that behalf by the Act under which the order is passed or that he order is not in strict conformity with the provisions of the Act
Some of these High Court have further held that the detenus can attack the order of detention on the ground that it is mala fide as for example by showing that the authority did not supply its mind to the relevant considerations or that the authority was influenced by irrelevant considerations or that the authority was influenced by improper motives
The Nagpur Bench of the Bombay High Court read down section 16A9 of the 1 implying an exception in favour of disclosure to the Court
The High Court did not decide about the validity of the Thirty eighth and Thirty ninth Constitution Amendment Acts
Accepting the States  appeals some by certificates granted by the High Court and some by special leave the Court by majority Khanna J dissenting  HELD 
Per majority AN Ray CJ MH Beg
YV Chandrachud and PN Bhagwati JJ 1 In view of the Presidential Order
Dated June 27 1975 under Clause 1 of article 359
no person has any locus standi to move any writ petition under Art 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order
Of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous considerations
477 E F
2 Section 16A9 of the is constitutionally valid
477 F 3 Section 18 of the Maintenance of  Internal Security Act 1971 is not invalid
240 A D 342 F G 414 D 176 4Article 21 of the Constitution is the sole repository of rights to life and personal liberty against State
246 B Per A N Ray J In view of the Presidential order dated June 27 1975 under Clause 1 of article 359 no person has locus standi to move writ petitions under article 226 of the Constitution before a High Court for habeas corpus or any other writ or order or direction to enforce any right to personal liberty of a person detained under the on the grounds that the order of detention or the continued detention is for any reason not in compliance with the Act or is illegal or male fide 245 H 246 A Article 21 is the sole repository of rights to life and personal liberty against a State
Any claim to a writ of hebeas corpus is enforcement of article 21 and 
is therefore barred by the Presidential order
246 B Girindra Nath Banerjee v Birendra Nath Lal ILR 54 Cal 727 Kinng emperor vs Shib Nath Banerjee 1972 Indian Appeals 241 and Makhan Singh vs State of Punjab 1964 4 SCR 797 referred to
Scope of judicial reivew in emergency
In times of emergency the executive safeguards the life of the nation and therefore its actions either on the ground that these are arbitrary or unlawful cannot be challenged in view of the fact that considerations of security forbid proof of the evidence upon which the detention was ordered
219 B E Liversidge vs Sir John Anderson  Greene vs Secretary of State for Home Affairs  Mohan Chaudhary vs Chief Commissioner Union Territory of Tripura  and Makhan Singh vs  State of Punjab 1964 4 SCR 797 followed
Queen vs Halliday Ex Parte Zadiq  referred
Liberty is confined and controlled by law whether common law or statute
The safeguard of liberty is in the good sense of the people and in the system of representative and responsible Government which has been evolved
If extraordinary powers are given they are given because the emergency is extraordinary and are limited to the period of emergency
Liberty is itself the gift of the law and may by the law forfeited or abridged
222 D G Zamora s case 19162 Ac 107 and Liversidge vs Sir John Anderson   referred to
The vital distinction between articles 358 and 359 is that Art 358 suspends the rights only in Article 19 to the extent that the Legislature can make laws contravening article 19 during the operation of a Proclamation of emergency and the Executive can take action which The Executive is competent to take under such laws Article 358 does not suspend any Fundamental Right
While a proclamation of emergency is in operation the Presidential order under article 3591 can suspend the enforcement of any or all Fundamental Rights
Article 3591 also suspends any pending proceedings for the enforcement of such Fundamental Right or Rights
Another important distinction between the two Articles is that article 358 provides for indemnity
whereas Article 3591 does not Article 3591A is on the same lines as article 358 but Article 3591A includes all Fundamental Rights which may be mentioned in a Presidential order aud is therefore much wider than article 358 which includes article lg only
223 E G The purpose and object of article 3591 is that the enforcement of any Fundamental Right mentioned in the Presidential order is barred or it remains suspended during the emergency
The scope of article 3591 is not only to restrict the application of the Article to the legislative field
bet also to the acts of the Executive
The object of Article 3591 is not only that the right 177 to move this Court only is barred but also the right to move any High Court The bar created by article 3591 applies to petitions for the enforcement of Fundamental Rights mentioned in the Presidential order whether by way of an application under article 32 or by way of application under article 226
An application invoking habeas corpus under section 491 of the Code of Criminal Procedure cannot simultaneously be moved in the High Court
223 H 224 D Shri Mohan Chaudhary vs Chief Commissioner Union Territory of Tripura  Makhan Singh vs State of Punjab 1964 4 SCR 797 and Dr Ram Manohar Lohia vs State of Bihar  ors   applied
The argument that jurisdiction and powers of this Court under article 32 and of the High Courts under article 226 are virtually abolished by the Presidential order without any amendment of the Constitution is incorrect
No amendment to the Constitution is necessary because no jurisdiction and power either of this Court or of the High Court is taken away
When a Presidential order takes away the locus standi of the detenu to move any court for the enforcement of Fundamental Rights for the time being the jurisdiction and powers of this Court and of the High Courts remain unaltered
224 E F Article 3591 is not directed against any court it is directed against an individual and deprives him of his locus standi
If courts will in spite of the Presidential order entertain the applications and allow the detenu to enforce to start or to continue proceedings or enforce Fundamental Rights Article 3591 will be nullified and rendered otiose
C D Unlike the 1962 Presidential order in the 1975 order the suspension is not hedged with any condition of enforcement of any right under Articles 21 and 22
The Presidential order is therefore a bar at the threshold
228 D E Makhan Singh vs State of Punjab 1964 4 SCR 797 and State of Maharashtra vs Prabhakar Pandurang Sangzgiri  Anr   distinguished
There are no natural rights
Fundamental Rights in our Constitution are interpreted to be what is commonly said to be natural rights
229 C D H H Kesvananda Bharti Sripadagalavaru vs State of Kerala 1973 SUPP
I SCR 702
followed
Law means law enacted by the State
Law means positive State made law The phrase Procedure established by law in article 21 includes substantive and procedural law
A law providing for the procedure depriving a person of liberty must be a law made by statute
229 D E A K Gopalan vs Stale of Madras   P D Shamdasani  ors vs Central Bank of India Ltd   Smt
Vidya Verma through next friend R V section Mani vs Dr Shiv Narain Verma   applied
There is no difference between the expression except according to procedure established by law in article 21 and the expression save by the authority of law in article 311 or the expression except by authority of law in article 265
It is incorrect to suggest that when article 21 was enacted the founding fathers only enshrined the right to personal liberty according to procedure and did not frame the constitutional mandate that personal liberty could not be taken except according to law
232 B D Part III of our Constitution confers Fundamental Rights in positive as well as negative language
A Fundamental Right couched Couched negative language accentuates by reason thereof the importance of that right
The negative language is worded to emphasize the immunity from State action as Fundamental Right
Fundamental Rights have the texture of Basic Human Rights
229 G 230 A B State of Bihar
vs Maharaja Dhiraja Sir Kameshwar Singh of Dhrbhanga  Ors
at 988 989 A K Gopalan vs State of Madras   Rustom Cavasjee Cooper vs Union of India 571 and 576 to 578 Shambhu Nath Sarkar vs The State of West Bengal  Ors
1974 14 833SupCI76 178 1 SCR Haradahan Saha  Anr
vs State of West Bengal  and Khudiram Das v State of West Bengal  ors
  referred to
Article 21 is our Rule of Law regarding life and liberty
No other Rule of Law can have separate existence as a distinct right
The negative language of Fundamental Right incorporated in Part III imposes limitations on the power of the State and declares the corresponding guarantees of the individual to that fundamental Right
Limitation and guarantee are complementary
The limitation of State action embodied in a Fundamental Right couched in a negative form is the measure of the protection of the individual
230 C D Rustom Cavasji Cooper vs Union of India  applied
Personal liberty in Article 21 includes all varieties of rights which go to make personal liberty other than those in article 191d
230 C C Kharak Singh vs State of UP and ors
1964 1 SCR 332 and Rustom Cavasjee Cooper v Union of India   referred to
If any right existed before the commencement of the Constitution and the same right with its content is conferred by Part III as a Fundamental Right the source of that right is in Part III and not in any pre existing right
Such pre constitutional rights have been elevated in Part III as Fundamental Rights
If there is a pre constitution right which is expressly embodied as a Fundamental Right under our Constitution the common law right has no separate existence Under Our Constitution
If there be any right other than and more extensive than the Fundamental Right in Part III such right may continue to exist under article 372
230 F H Dhirubha Devi Singh Gohil vs State of Bombay  referred to
B Shankara Rao Badami and ors
vs State of Mysore and Anr   11 13 applied
Apart from the remedy under the common law of torts by way of suit for false imprisonment and claim for damages there was no civil remedy for unlawful infringement of the right to personal liberty in India before the Constitution
Even this remedy after the amendment of section 491 of the Code of criminal Procedure became a statutory right in the nature of a habeas corpus
The provisions of section 491 of the Criminal Procedure Code have been repealed by Act II of 1974 as being superfluous in view of article 226
231 C D Waghela Rajsanji vs Sheik Masludin and ors
14 IA 89 1 96
Satish Chandra Chakravarti vs Ram Dayal De ILR  407 10 425 426
Baboo So Thakur Dhobi vs Mst
Subanshi wo Mangal Dhobi AIR 1942 Nagpur 99 Makhan Singh vs State of Punjab 1964 4 SCR 797 District Magistrate Trivandrum vs K C Mammen Mappillai ILR  Matthen vs District Magistrate Trivandrum LR 66 IA 222
Girindranath Banerjee vs Birendranath Pal ILR and King Emperor vs Sibnath Banerjee 72 1A 241 referred to
There was no statutory right to enforce the right to personal liberty other than that in section 491 of the Criminal Procedure Code before the commencement of the Constitution which could be carried over after its commencement under article 372
Law in article 21 will include all post constitutional statute law including and by virtue of article 372 all pre constitutional statute law including the IPC and the Cr
PC 231 F G The present appeals do not touch any aspect of article 20
Article 20 is a constitutional mandate to the judiciary and article 21 is a constitutional mandate to the Executive
The expression no person shall be prosecuted for the same offence more than once in article 20 would apply only to the executive
It is 179 incorrect to say that State in article 12 will also include the Judiciary and article 20 is enforceable against the Judiciary in respect of illegal orders
232 E F G H Makhan Singh vs State of Punjab 1964 4 SCR 797 and Narayan Singh vs State of Delhi and ors
 not applicable
Articles 256 265 and 361 have no relevance to displace the proposition that article 21 is the repository of rights to life and liberty
Nor does an appeal in a criminal proceedings have anything to do with article 21
233 C D Garikapatti Veerayya vs N Subbiah Choudhury  and Ahmedabad Mfg  Calico Ptg
Co Ltd vs Ram Tahal Ramnand and ors
  referred to
The right arising from a decree is not a Fundamental Right and therefore will not be prima facie covered by a Presidential order under article 3591 233 G Fundamental Rights including the right to personal liberty are conferred by the Constitution
Any pre constitution rights which are included in article 21 do not after the Constitution remain in existence which can be enforced if article 21 is suspended If it be assumed that there was any pre constitutional right to personal liberty included in article 21 which continued to exist as a distinct and separate right then article 3591 will be an exercise in futility
234 A B Makhan Singh vs State of Punjab explained
The theory of eclipse is untenable
The theory of eclipse refers to pre constitutional laws which were inconsistent with Fundamental Rights
By reason of article 131 such laws did not became void but became devoid of legal force
Such laws became eclipsed for the time being
The theory of clipse has no relevance to the suspension of the enforcement of fundamental Rights under article 3591
The constitutional provisions conferring Fundamental Rights cannot be said to be inconsistent with article 131
234 B D P D Shamdasani vs Central Bank of India Ltd  and Smt
Vidya Verma through next friend R V section Mani vs Dr Shiv Narain Verma   reiterated
The Act in the present case is valid law and it has laid down procedure of applying the law
The validity of the Act has not been challenged and cannot be challenged
The Legislature has competence to make the law
The procedure therefore cannot be challenged because article 21 and 22 cannot be enforced The suggestion that the power of the Executive is widened is equally untenable
235 E F The fact that section 491 of the Criminal Procedure Code has been abolished in he new Code establishes that the pre existing right was embodied as a Fundamental Right in the Constitution
The right to personal liberty became identified with Fundamental Right to personal liberty under article 21
236 A The Presidential orders does not alter or suspend any law
The rule of law is not a mere catchword or incantation
The certainty of law is one of the elements in the concept of the rule of law
The essential feature of rule of law is that the judicial power of the State is to a large extent separate from the Executive and the Legislature
236 B C It is not correct to argue that if pre existing law is merged in article 21 there will be conflict in the Article 372
The expression law in force in article 372 cannot include laws which are incorporated in the Constitution viz in Part III
The expression law in Articles 191 and 21 takes in the statute law
235 B The Presidential order under article 3591 is not a law
The order does not repeal any law either
The contention that permanent law cannot be repealed by temporary law is misplaced
235 C The entire concept in article 21 is against Executive action
There is no question of infringement of Fundamental Right under article 21 where the detention 180 complained of is by a private person and not by a State or under the authority or orders of a State
235 D The Executive cannot detain a person otherwise than under valid legislation
The suspension of any Fundamental Right does not affect this rule of the Constitution
Article 358 does not detract from the position that the Executive cannot act to the prejudice of a person without the authority of law
237 A F Rai Sahib Ram Jawaya Kapur  ors
vs The State of Punjab  MP
State vs Bharat Singh   Dy
Collector vs Ibrahim  Co Bennet Coleman  Co vs Union of India  and Meenakshi Mills vs Union of India  discussed and distinguished
The Constitution is the mandate
The Constitution is the rule of law
No one can arise above the rule of law
The suspension of right to enforce Fundamental Rights has the effect that the emergency provisions in Part XVIII are by themselves the rule of law during times of emergency
There cannot be any rule of law other than the constitutional rule of law There cannot be any pre constitution or post constitution rule of law which can run counter to the rule of law embodied in the Constitution nor can there be any invocation to any rule of law to nullify the constitutional provisions during the times of emergency
224 B 238 D E Eshugbayi Eleko vs Officer Administering the Govt
Of Nigeria  and Christie and Anr
vs Leachinsky  not applicable
The expression for any other purpose in article 226 means for any purpose other than the enforcement of Fundamental Rights
A petition for habeas corpus by any person under article 226 necessarily invokes a question whether the detention is legal or illegal
An executive action if challenged to be ultravires a statute cannot be challenged by any person who is not aggrieved by any such ultra vires action
239 D E The expression purported to be made under section 3 of the Act in section 18 will include an Executive act made by the District Magistrate within the scope of his authority as District Magistrate even if the order is made in breach of the section or is mala fide
240 A B Hari Ram Singh vs The Crown Bhagchand Dagadusa vs The Secretary of State for India LR 54 IA 338  352 Albert West Meade vs The King AIR 1948 PC 156 at 157 59 Animistic vs Foreign Compensation etc  at 212 213 and 237 and Dakshina Ranjan Ghosh vs Omar Chand Oswal ILR SO Cal
992 at 995 1003 applied
Poona Municipal Corporation vs D N Deodhar   Kala Bhandar vs Municipal Committee and Indore Municipality vs Niyamultulla AIR 1971 SC 97 and Joseph vs Joseph not applicable
There is no question of excessive delegation in section 18 which lays down the law
To contend that section 18 applies only to post detention challenge is wrong
Section 18 applies to all orders of detention
Section 18 of is only an illustration of the Act by the officers authorised by the Act
240 C E Section 16A9 of the Act is valid
It is a rule of evidence and it is not open either to the detenu or the Court to ask for the grounds of detention
246 C Materials and information on which orders of preventive detention are passed necessarily belong to a class of documents whose disclosures would impair the proper functioning of Public service and administration
242 D Liversidge vs John Anderson  at 221 253 254 266 267 279 280 and Roger s case  400 401 405 applied
181 Legislature has enacted 5
16A9 providing for a general exclusion from evidence of all such material as would properly fall within the classification instead of forcing the State to claim in individual cases privilege under sections 123 162 of the Evidence Act or under article 226 of the Constitution
242 E F Section 16A cannot be said to be an amendment to article 226
The jurisdiction to issue writs is neither abrogated nor abridged
Section 16A9 enacts provisions analogous to a conclusive proof of presumption
Such a provision is a genuine rule of evidence
It is in the nature of an explanation to sections 123 and 162 of the Evidence Act
Section 16A9 is a rule of evidence
When the detaining authority is bound by section 16A9 and forbidden absolutely from disclosing such material no question can arise of adverse inference against the authority
242 G H Section 16A9 cannot be read implying an exception in form of disclosure to the Court
Such disclosure to the Court alone and not to the detenu will introduce something unknown to judicial procedure and will bring in an element of arbitrariness and preclude both the parties from representing their respective cases
The view of the detaining authority is not to be substituted by the view of the court
243 A C State of Bombay v Atma Ram Sridhar Vaidya   Shiban Lal Saksena vs State of Uttar Pradesh and ors
  Rameshwar Shaw vs District Magistrate Burdwan and Anr   Jaichand Lal vs W Bengal 1966 Supp
SCR 464 and Dr Ram Manohar Lohia vs State of Bihar 1966 I SCR 709 referred to
The theory of good return mentioned in the English decisions is based on the language of Habeas Corpus Act and the Rules of the Supreme Court of England
The practice of our Court is different
243 C D M M Damnoo vs J K State  and A K Gopalan vs State of Madras   distinguished
It is not competent for any court to go into questions of malafides of the order of detention or ultra vires character of the order of detention or that the order was not passed on the satisfaction of the detaining authority
Section 16A of the Act contains definite indications of implied exclusion of judicial review on the allegations of mala fide
The reason why section 16A has been enacted is to provide for periodical review by Government and that is the safeguard against any unjust or arbitrary exercise of power
The production of the order which is duly authenticated constitutes a peremptory answer to the challenge
243 G H 244 A 245 B In view of the inability of the court to grant any relief on the basis whether order of detention is the result of malice or ill will the detention of malafides is not only ineffective but also untenable
244 DE Lawrence loachim Joseph D s Souza vs The State of Bombay   392 393 Smith vs East Elloc Rural District Council  ors
at 776 and Dr Ram Manohar Lohia vs State of Bihar and ors
  referred to
A decision on a point not necessary for the purpose or which does not fall to be determined in that decision becomes obiter dictum
227 F Maharaja Dhiraja Madhav Rao Jivaji Rao Scindia Bahadur and 193 to 194 referred to
Per M H Beg 1
A prima facie valid detention order that is to say one duly authenticated and passed by an officer authorised to make it recording a purported satisfaction to detain the petitioner under the  which is operative either before or after its confirmation by the Government is a 182 complete answer to a petition for a writ of habeas corpus
Once such an order is shown to exist in response to a notice for a writ of habeas corpus the High Court cannot inquire into its validity or vires on the ground of either mala fides of any kind or of non compliance with any provision of the in habeas corpus proceedings
371 G H 372 A The fundamental law found in the Constitution is paramount
The Constitution provides the test for the validity of all other laws
It seeks to determine the spheres of executive and legislative and judicial powers with meticulous care and precision
The judicial functions though wider in range when interpreting or applying other articles of the Constitution particularly Articles 14 and 19 the enforcement of which is also suspended during the current emergency is especially constricted by the elaborate provisions of Articles 21 and 22 which deal with personal liberty and preventive detention
The wider the sweep of the provisions of Articles 21 and 22 the more drastic must be the effect of suspending their enforcement
Suspension does not and cannot mean retention under a disguise
312 F H Marbury vs Madison 1803 I Cranch 137 A K Gopalan vs State of Madras   p 109 referred
The only Rule of Law which can be recognised by courts of our country is what is deducible from our Constitution itself
The Constitution is an embodiment of the highest positive law as well as the reflection of all the rules of natural or ethical or common law Lying behind it which can be recognised by courts
The spirit of law or the Rule of Law Cannot hover ominously around like some disembodied ghost serving as a substitute for the living Constitution
It has to be found always within and operating in harmony with and never outside or in conflict with what our Constitution enjoins
313 A D E The most important object of making certain basic rights fundamental by the Constitution is to make them enforceable against the State and its agencies through the Courts
329 F Under our constitutional jurisprudence courts cannot during a constitutionally enjoined period of suspension of the enforceability of fundamental rights through courts enforce hat may even be a Fundamental Right sought to be protected by Part III of the Constitution
314 C D The enforceability of a right by a constitutionally appointed judicial organ has necessarily to depend upon the fulfillment of two conditions firstly its recognition by or under the Constitution as a right and secondly possession of the vower of its enforcement by the judicial organs
Article 226 of the Constitution is not meant for futile and unenforceable declarations of right
The whole purpose of a writ of habeas corpus is to enforce a right to personal freedom after the declaration of the detention as illegal when it is so found upon investigation
Enforceability of rights whether
they are constitutional or common law or statutory in constitutionally prescribed ways by constitutionally appointed judicial organs is governed solely by the terms of the written instrument in n Constitution such as ours
The scope for judicial law making on the subject of enforcement of the right to personal freedom was deliberately restricted by our Constitution makers
It is difficult to see any such scope when enforcement itself is suspended
314 E F 315 B C What is suspended is really the procedure for the enforcement of a right through courts which could be said to flow from the infringement of a statutory procedure
If the enforcement of a right to be free resulting derivatively from both the constitutional and statutory provisions based on an infraction of the procedure
which is statutory in cases of preventive detention is suspended it is impossible to lay down that it becomes enforceable when that part of the procedure which is mandatory is violated but remains unenforceable so long as the part of the procedure infringed is directory
Such a view would introduce a  distinction which is neither warranted by the language of Article 359 of the Constitution nor by that of the Presidential order of 1975
315 F G 183 If the protection of enforceability is validly suspended for the duration of an Emergency declared under constitutional provisions the courts will have nothing before them to enforce so as to able to afford any relief to a person who comes with a grievance before them
329 G A court cannot
in exercise of any supposed inherent or implied or unspecified power purport to enforce or in substance enforce a right the enforcement of which is suspended
To permit such circumvention of the suspension is to authorise doing indirectly what law does not allow to be done directly
317 E F His Lordship felt that it was unnecessary to consider any other purpose in article 226 of the Constitution in view of the fact that each of detenus asked for a writ or habeas corpus and for no other kind of writs or orders The Constitution given unto themselves by the people is legally supreme
A notional surrender by the people of India of control over their several or individual rights to a Sovereign Republic by means of a legally supreme Constitution only means that the Constitution is supreme and can confer rights and powers
One has to look to it alone and not outside it for finding out the manner in which and the limits subject to which individual citizens can exercise their separate freedoms
A satisfactory explanation of the language of conferment used with reference to rights is that there has to be necessarily as a result of such a process of Constitution making a notional surrender of individual freedom so as to convert the possibility of licence to all which ends in the exploitation and oppression of the many weak by the few strong into the actuality of a freedom for all regulated by law or under the law applicable to all
318 F H Smt
Indira Nehru Gandhi vs Raj Narain 1976 2 SCR referred to
Rules of natural justice which are impliedly read into statutes from the nature of Functions imposed upon statutory authorities or bodies have sometimes been placed on the same footing as Fundamental Rights of men which are directly and absolutely safeguarded by written Constitutions
The implied rules of natural justice do not override the express terms of a statute
They are only implied because the functions which the statute imposes are presumed to be meant to be exercised in accordance with these rules and therefore treated as though they were parts of enacted law
The principles of natural justice which are so implied must always hang if one may so put it on pegs of statutory provisions or necessarily flow from them and have no independent existence
319 G H 320 A State of Orissa vs Dr Miss Binapani Dei  ors
  applied
Fundamental Rights are basic aspects of rights selected from what may previously have been natural or common law rights
These basic aspects of rights are elevated to a new level of importance by the Constitution
Any other co extensive rights outside the Constitution are necessarily excluded by their recognition as or merger with Fundamental Rights
329 B The object of making certain general aspects of rights fundamental is to guarantee them against illegal invasions of these rights by executive legislative
Or judicial organs i e Article 20 of the State
This necessarily means that these safeguards can also be legally removed under appropriate constitutional or statutory provisions although their suspension does not by itself take away the illegalities or their legal consequences
The intention was to exclude all other control or to make the Constitution the sole repository of ultimate control over those aspects of human freedom which are guaranteed in Part m 319 A C  329 C Article 21 of the Constitution has to be interpreted comprehensively enough to include together with article 19 practically all aspects of personal freedom
It embraces both procedural and substantive rights
Article 22 merely makes it clear that deprivations of liberty by means of laws regulating preventive detention would be included in procedure established by law and indicates what that procedure should be
In that sense it could be viewed as sub 184 stantially an elaboration of what is found in Article 21 although it also goes beyond it inasmuch as it imposes limits on ordinary legislative power
329 D E Taken by itself article 21 of the Constitution is primarily a protection against illegal deprivations by the executive action of the State s agents or officials although read with other Articles it could operate also as a protection against unjustifiable legislative action purporting to authorise deprivations of personal freedom
329 F Article 21 was only meant on the face of it to keep the exercise of executive power in ordering deprivations of life or liberty within the bounds of power prescribed by procedure established by legislation Article 21 furnishes the guarantee of Lex which is equated with statute law only and not of jus or a judicial concept of what procedural law ought really to be
The whole idea in using this expression was to exclude judicial interference with executive action in dealing with lives and liberties of citizens and others living in our country on any ground other than that it is contrary to procedure actually prescribed by law which meant only statute law
According to well established canons of statutory construction the express terms of Lex assuming of course that the Lex is otherwise valid prescribing procedure will exclude Jus or judicial notions of due process or what the procedure
Ought to be
321 H 322 A C A K Gopalan vs State of Madras  referred to
The suggestion that jus which has been deliberately excluded from the purview of procedure established by law can be introduced by courts through a back door as though it was an independent right guaranteed by Chapter III or by any other part of the Constitution cannot be acceded to
322 E F R C Cooper vs Union of India   578 distinguished
Neither rights supposed to be recognised by some natural law nor those assumed to exist in some part of Common Law could serve as substitutes for those conferred by Part III of the Constitution
They could not be on any principle of law or justice or reason virtually added to Part III as complete replacements for rights whose enforcement is suspended and then be enforced through constitutionally provided machinery as the unseen appendages of the Constitution or as a separate group of rights outside the Constitution meant for the emergency which suspends but does not resuscitate in a new form certain rights
325 B D His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala 1973 Supp
SCR  1
Satish Chandra Chakraworti vs Ram Dayal De ILR P  407 410 425 and 426 Waghela Rajsanji vs Sheikh Masludin and ors
14 Indian Appeals p 89 and Baboo Seo Thakur Dhobi vs Mst
Subanshi wo Mangal Dhobi AIR 1942 Nagpur 99 referred to
Not only all steps leading up to the deprivation of personal liberty but also the substantive right to personal freedom
by implication is covered by Article 21 of the Constitution
328 E F 1
C Golaknath  ors
vs Sate of Punjab and Another Even if article 21 is not the sole repository of all personal freedom it will be clear that all aspects of freedom of person are meant to be covered by Articles 19 21 and 22 of the Constitution
If the enforcement of these rights by Courts is suspended during the emergency an inquiry by a court into the question whether any of them is violated by an illegal deprivation of it by executive authorities of the State seems futile
328 H 329 A A K Gopalan State of Madras  and Kharak Singh vs State of UP  ors
1964 I SCR 332 applied
The power to issue a writ is conferred upon courts exclusively by our Constitution All the powers of our courts flow from the Constitution which is the source of their jurisdiction
If any provision of the constitution authorises the 185 suspension of the right to obtain relief in any type of cases the power of courts is thereby curtailed even though a general jurisdiction to afford the relief in other cases may be there
If they cannot issue writs of habeas corpus to enforce a right to personal freedom against executive authorities during tho emergency the original nature of this writ issuing power comparable to a prerogative power cannot help the detenu
330 G H It is a well recognised principle of law that whatever could be formerly even said to be governed by a common law prerogative power becomes merged in the Constitution as soon as the Constitution takes it over and regulates that subject
331 A Principle in Attorney General vs De Keyser s Royal Hotel Limited   526 applied
If there is no enforceable right either arising under the Constitution or otherwise it is useless to appeal to any general power of the court to issue a writ of habeas corpus
If the effect of suspension of the right to move the court for a writ of habeas corpus is that no inquiry can take place beyond finding out that the cause is one covered by the prohibitions mere possession of general power will not assist the detenu
331 C D If the right to enforce personal freedom through a writ of habeas corpus is suspended it cannot be said that the enforcement can be restored by resorting to any other purpose
That other purpose could not embrace defeating the effect of suspension of the enforcement of a constitutional guarantee and if held so would be making a mockery of the Constitution
331 D E Nothing in the nature of a writ of habeas corpus or any power of a High Court under article 226 could come to the aid of a detenu when the right to enforce a claim to personal freedom sought to be protected by the Constitution is suspended
331 E F Provision for preventive detention in itself aptly described as jurisdiction of suspicion is a departure from ordinary norms and resorted to either in times of war or of apprehended internal disorders and disturbances of a serious nature with the object of preventing a greater dager to national security and integrity than any claim which could be based upon a right moral or legal to individual liberty
332 B C Haradhan Saha  Anr
vs The State of West Bengal and ors
  Khudiram Das vs State of West Bengal 1975 2 SCR p832  p 842 State of Madras vs VG Row AIR 1952 SC 197  200 and Rex vs Halliday   275 referred to
It is true that the Presidential order of 1975 like the Presidential order of 1962 does not suspend the general power of this Court under article 32 or the general powers of High Courts under article 226 bot the effect of taking away enforceability of the right of a detenu to personal freedom against executive authorities is to affect the locus standi in cases which are meant to be covered by the Presidential order
Courts even in habeas corpus proceedings do not grant relief independent of the rights of the person deprived of liberty
If the locus standi of a detenu is suspended no one car
claim to get his right enforced
 338 E F If a case so patently gross and clear of a detention falling on the face of the order of detention or the return made to a notice from the court outside the provisions of the Act on the ground of personal malice of the detaining authority or some other ground utterly outside the Act arises so that no further investigation is called for it may be possible to contend that it is not protected by the Presidential order of June 27 1975 and by the provisions of article 3591 of the Constitution at all
The mere presence of an official seal or signature on a detention order in such a purely hypothetical case may not be enough to convert it into a detention by the State or its agents or officers
That is the almost utterly inconceivable situation or type of case which could still 186 be covered by the general power to issue writs of habeas corpus
The remedy by way of a writ of habeas corpus is more general than relief against official action
It lies even against illegal detentions by private persons although not under article 32 which is confined to enforcement of Fundamental Rights
339 A E Shrimati Vidya Verma though next friend RVS Mandi vs Dr Shiv Narain Verma 1955 2 SCR p 983 referred to
Courts must presume that executive authorities are acting in conformity with both the spirit and the substance of the law The maxim omnia praeswumuntur rite esse actus means that all official acts are presumed to have been rightly and regularly done
If the burden to displace that presumption is upon detenu he cannot in a habeas corpus petition under article 226 of the Constitution ask the court to embark upon an inquiry during the emergency and allow him to lead evidence to rebut this presumption
To do so would be plainly to countenance a violation of the Constitutional mandate suspending the procedure
340 A C Eshughayi Eleko vs Officer Administering the Government of Nigeria  Anr
 670 Liversidge vs Sir John Anderson and Anr
1942 AC p 206  217 and 219 and 273
Rex vs Secretary of State of Home Affairs Ex parte Lees and Green vs Secretary of State of Home Affairs  293 discussed
Decisions on what restraints should be put and on which persons during a national emergency in the interests of national security are matters of policy which are outside the sphere of judicial determination
344 G Liversidge vs Sir John Anderson  and Rex vs Halliday Ex Parte Zadiq   referred to
Under our Constitution there is no distinction between the effects of a declaration of emergency under article 3521 whether the threat to the security of the State is from internal or external sources
Presidential declarations under article 3521 and 3591 of  our Constitution are immune from challenge in courts even when the emergency is over
A noticeable feature of our Constitutions is that whereas the consequences given in article 358 as a result of a Proclamation under article 3521 are automatic Presidential orders under Article 3591 may have differing consequence from emergency to emergency depending upon the terms of the Presidential orders involved
And then Article 3591A made operative retrospectively by the 38th Constitutional amendment of 1st August 1975 makes it clear that both the legislative and executive organs of the State are freed for the duration of the emergency from the limits imposed by Part III of the Constitution
348 A D The striking differences in the terms of the two Presidential orders are 1 The Presidential order of 1962 did not specify Article 14 of the Constitution but article 14 guaranteeing equality before the law and equal protection of laws to all persons in India is mentioned in the 1975 order
This does make some difference between the intentions behind and effects of  the two Presidential orders
352 B C ii The President Order of 1962 expressly hedges the suspension of the specified Fundamental Rights with the condition with regard to deprivations covered by Article 21 and 22 of the Constitution that the detenu should be deprived of his rights under the Defence of India Act 1962 or any rules or order made thereunder
In other words
On the terms of the 1962 Presidential Order the courts were under a duty to see whether a deprivation satisfies these conditions or not
They could adjudicate upon the question whether a detention was under  the Act or a rule made thereunder
On the other hand the Presidential order of 1975 unconditionally suspends the enforcement of the rights conferred upon any person including a foreigner to move any court for the enforcement of the rights conferred by Articles 14 21 and 22 of the Constitution
The Courts are
therefore no longer obliged or able to test the validity of a detention by examining whether they conform to statutory 187 requirements
They will have to be content with compliance shown with forms of the law
352 C E iii Presidential order of 1962 makes no mention of pending proceedings but
the 1975 order suspends all pending proceedings for the enforcement of the rights mentioned therein
This further clarifies and emphasizes that the intention behind the Presidential order of 1975 was to actually affect the jurisdiction of courts in which proceedings were actually pending
the inference from this feature also is that all similar proceedings in future will similarly be affected
352 E F There can be no doubt whatsoever that the Presidential order of June 27 1975 was a part of a unmistakably expressed intention to suspend the ordinary processes of law in those cases where persons complain of infringement of their fundamental rights by the executive authorities of the State
The intention of the Parliament itself to bring about this result so that the jurisdiction of courts under article 226 in this particular type of cases is itself affected for the duration of the emergency seems clear enough from the provisions of section 16A9 of the Act introduced by Act No 14 of 1976 which received Presidential assent on January 25 1976 making section 16A9 operative retrospectively from June 25 1975
352 F H There is no doubt that the object of the Presidential order of June 27 1975 by suspending the enforcement of the specified rights was to affect the powers of courts to afford relief to those the enforcement of whose rights was suspended
This was within the purview of Article 3591
Hence objections that powers of the courts under
article 226 may indirectly be affected is no answer to the direct suspension of rights which was bound to have its effect upon the manner in which jurisdiction is or could reasonably be exercised even if that jurisdiction cannot be itself suspended for all types of cases
353 A B The term Rule of Law is hot a magic wand which can he waved to dispel every difficulty
It is not an Aladin s lamp which can be scratched to invoke a power which brings to any person in need whatever he or she may desire to have It can only mean what the law in a particular State or country is and what it enjoins
This means that the Rule of Law must differ in shades of meaning and emphasis from time to time and country to country
It could not be rigid unchanging and immutable like the proverbial laws of the Medes and Persians
It cannot be like some brooding omnipotence in the skies
Its meaning cannot be what anyone wants to make it
It has to be for each particular situation
indicated by the courts as to what it means
353 F H 354 A The Rule of Law includes the concept of determination by courts of the question whether an impugned executive action is within the bounds of law
It pre supposes firstly the existence of a fixed or identifiable rule of law which the executive has to follow as distinguished from a purely policy decision open to it under the wide terms of the statute conferring a discretionary power to act
and secondly the power of the courts to test the action by reference to the rule
354 E F Even in emergencies provided the power of the court to so test the legality of some executive act is not curtailed courts will apply the test  of legality if the person aggrieved brings the action in the competent court
But if the locus standi of the person to move the court is gone and the competence of the court to enquire into the grievance is also impaired by inability to peruse the ground of executive action or their relationship with the power to act it is no use appalling to this particular concept of the Rule of Law
It is just inapplicable to the situation which arises here
Such a situation is governed by the emergency provisions of the Constitution
354 F H Youngs Town Sheet  Tube Co vs Sawyer   655 and Chief Settlement Commissioner rehabilitation Department Punjab  Ors etc
vs Om Prakash  Ors
  354 F H Whereas article 358 by its own force
suspends the guarantees of article 19 Article 3591 has the effect of suspending the operation of specified Funda 188 mental Rights
If however the application of Articles 14 19 21 and 22 of the Constitution is suspended it is impossible to say that there is a Rule of Law found there which is available for the courts to apply during the emergency to test the legality of executive action
355 A C Mohd Yaqab etc
vs The State of Jammu  Kashmir 1968 2 SCR p 227  234 referred to
The suggestion that a common law remedy by way of writ of habeas corpus exists even after section 491 was introduced in the
Criminal Procedure Code in 1923 is incorrect
The sweep of article 3591 of the Constitution taking in the jurisdiction of any court is wide enough to cover any kind of relief claimed by a petitioner for the enforcement of a specified Fundamental Right
355 D E Pleas which involve any adduction of evidence would be entirely excluded by the combined effect of the terms of The Presidential order of June 27 1975 read with the amended provisions of section 16A9 of the Act
In a case in which the officer purporting to detain had in fact not been invested at all with any authority to act the detention would be on the same footing as one by a private person who has no legal authority whatsoever to detain
357 C E Makhan Singh vs State of Punjab 1964 4 SCR 797  821 822 and 5
Pratap Singh vs State of Punjab   referred to
The suspension of enforcement of specified Fundamental Rights operates only to protect infringements of rights by the State and its authorised agents acting or purporting to act in official capacities which they could and do hold
A claim to an order of release from such a patently illegal detention which is not by the State or on its behalf could be enforced even during the current emergency
357 G The presumption of validity of a duly authenticated order or an officer authorised to pass it is conclusive in habeas corpus proceedings during the current emergency
By means of a differently phrased Presidential order of June 17 1975 and the amendments in the Act introducing rather drastic provisions of section 16A of the Act the intention has been made clear that preventive detention should be a matter controlled exclusively by the executive departments of the State
358 B 361 B C State of Madhya Pradesh and Anr
vs Thakur Bharat Singh  State of Maharashtra vs Prabhakar Pandurang Sangzgiri and Anr  Dr Ram Manohar Lohia vs State of Bihar and ors
  K Anandan Nembiar and Anr
vs Chief Secretary Government of Madras and ors
  Durga Das Dhirali vs Union of India and ors  Jai Lal vs State of West Bengal 1966 Supp
SCR p 4 64 discussed and distinguished
lt is very difficult to see the bearing of any such doctrine that the Rule of Law under our Constitution is embodied in the principle of Separation of Powers on a pure and simple question of determination of the meaning of constitutional and statutory provisions couched in words which leave few doubts unresolved
361 C D If an order of preventive detention is not quasi judicial as it cannot be because of the impossibility of applying any objective standards to the need for it in a particular case there could be no question of violating any principle of Separation of Powers by placing preventive detention exclusively within the control of executive authorities of the State for the duration of the emergency
361 H 352 A Rai Sahib Ram Jawaya Kapur and ors
vs The State of Punjab  referred to
Means of redress in cases such as those of mistaken identity or misapprehension of facts or of detenus due to false and malicous reports circulated by enemies are still open to detenu by approaching executive authorities
There 189 is no bar against that
What is hot possible is to secure a release by an order in habeas corpus proceedings after taking the courts behind a duly authenticated prima facie good return
366 B C If the meaning of the emergency provisions in our Constitution and the provisions of  the Act is clearly that what lies in the executive field should not be subjected to judicial scrutiny or judged by judicial standards of correctness the courts cannot arrogate unto themselves a power of judicial superintendence which they do not under the law during the emergency possess
362 H It does not follow from a removal of the normal judicial superitendence even over questions of vires of detention orders which may require going into facts behind the returns that there is no Rule of Law during the emergency or that the principles of ultra vires are not to be applied at all by any authority except when on the face of the return itself it is demonstrated in a court of law that the detention does not even purport to be in exercise of the executive power or authority or is patently outside the law authorising detention The intention behind emergency provisions and of the Act is that although such executive action as is not susceptible to judicial appraisement should not be subjected to it yet it should be honestly supervised and controlled by the hierarchy of executive authorities themselves
It enhances the powers and therefore the responsibilities of the Executive
363 F H In actual practice the grounds supplied always operate as an objective test for determining the question whether a nexus could reasonably exist between the grounds given and the detention order or whether some infirmities had crept in
The reasonableness of the detention because the justiciable issue because it related to the decision
It is doubtful whether this could be said to be an object of preventive detention authorised by the Constitution and embodied in the Act
334 D E The object of the amending Acts 39 of 1975 and 14 of 1976 was to affect the manner in which jurisdiction of courts in considering claims for reliefs by detenus oh petitions for writs of habeas courts was being exercised so that the only available means that has been developed for such cases by the courts that is to say the scrutiny of grounds supplied under section 8 of the Maintenance
Of Internal Security Act may be removed from the judicial armoury for the duration of emergency
336 C D Prabhu Dayal Deorah etc
vs District Magistrate Kamrup and ors
  referred to
The contention that section 16A9 affects the jurisdiction of High Courts under article 226 which an order under article 3591 could not do is untenable
A Presidential Order which prevents a claim for the enforcement of a Fundamental Right from being advanced in a court during the period of an emergency could possibly be said not to be intended to affect the exercise of jurisdiction of courts at all is not correct
336 F G That section 16A9 amounts to a general legislative declaration in place of judicial decisions which courts had themselves to give after considering on the facts of each case whether article 226 could be applied is also not acceptable
the result of section 16A9 to be valid would be to leave to the presumption of correctness of an order under section 3 of the Act untouched by any investigation relating to its correctness
Now if this be the object and effect of The amendment it could not be said to go beyond it to rebut a presumption of legality and validity or an order under section 3 of the Act if prima facie case is made out
336 G H 337 A Observation The same result could have been achieved by enacting that a detention order under section 3 prima facie good will operate as conclusive proof that the requirements of section 3 have been fulfilled
But as the giving of grounds is not entirely dispensed with under the Act even as it now exists this may have left the question in doubt whether courts could call upon the detaining authorities 190 to produce the grounds
Enactment of a rule of conclusive proof is a well established form of enactments determining substantive rights in the form of procedural provisions
337 A B Section 16A9 makes it impossible for courts to investigate questions relating to the existence or absence of bona fides at least in proceeding under An 226 It is clear that the validity of section 16A9 cannot be challenged on the ground of any violation of Part III of  the Constitution in view of the provisions of article 3591A
353 C D A challenge to the validity of section 16A9 based either on the submission on hat grounds for detention do not call for secrecy or that the provision is an unwarranted invasion of judicial power even in an emergency is not well founded
There is no such strict separation of power under our Constitution No particular provision of the Constitution could be pointed out in support of the proposition that preventive detention is a matter in which judicial superintendence must necessarily be preserved as a part of the doctrine of separation of powers
365 E F Rai Sahib Ram Jawaya Kapur and ors vs State of Punjab  referred to
Section 16A9 imposes a bar which cannot be overcome in habeas corpus proceedings during the emergency
In addition a specific suspension or enforcement of the right of personal freedom against executive authorities places the presumption arising from a duly authenticated order of a legally authorised detaining officer on a higher footing than merely ordinary rebuttable presumption for purposes of proceedings under article 226 of the Constitution
367 F G His Lordship felt it unnecessary to consider the validity of section 16A9 if it was to be applied at a time not covered by the emergency or whether it should be read down for the purposes of a suit for damages where the issue is whether the detention was ordered by a particular officer out of malice in fact and for reasons completely outside the purview of the Act itself
337 C D Section 16 of the Act seems to leave open a remedy by way of suit for Damages for wrongful imprisonment in a possible case of what may be called malice in fact
In the cases for habeas corpus proceedings under article 226 of the Constitution where malice in fact could not be investigated
as it is bound to be an allegation subsidiary to a claim for the enforcement of a right to personal liberty a Fundamental Right which cannot be enforced during the Emergency
337 G H Sree Mohan Chowdhury vs The Chief Commissioner Union Territory of Tripura   450 followed
Even the issue that the detention order is vitiated by malice in fact  will not be justifiable in habeas corpus proceedings during the emergency although it may be in an ordinary suit which is not filed for enforcing a Fundamental Right but for other reliefs
The question of bona fides seems to be left open for decision by such suits on the language of section 16 of the Act itself
368 D E In the case of preventive detention placing the burden upon the executive authorities of proving the strict legality and correctness of every step in the procedure adopted in a case of deprivation of personal liberty and asking the executive authorities to satisfy such a requirement in accordance with what has been called the principle in Eschugbayi Eleko s case   670 would be to nullify the effect of the suspension of the enforceability of the procedural protection to the right of Personal freedom
To do so is really to take the Presidential order under Article 3591 of the Constitution ineffective
368 B C No question of malice in law can arise in habeas corpus proceedings when such a protection is suspended
As regards the issue of malico in fact it cannot be tried at all in a habeas corpus proceedings although it may be possible to try it in a regular suit the object of which is not to enforce a right to personal freedom but only to obtain damages for a wrong done which is not 191 protected by the terms of section 16 of the Act
The possibility of such a suit should be another deterrent against dishonest use of these powers by detaining officers
1368 D E Section 18 though unnecessary appears to have been added by way of abundant caution
It cannot be assailed on the ground of violation of basic structure
342 F G The theory of basic structure oil the Constitution cannot be used to build into the Constitution an imaginary part which may be in conflict with the constitutional provisions
The Constitution cannot have a base out away from the superstructure
Indeed the emergency provisions could themselves be regarded as part of the basic structure of the Constitution
366 E F The theory of basic structure of the constitution cannot be considered as anything more than a part of a well recognised mode of constructing a document The Constitution like any other document has to be read and constructed as a whole
The theory was nothing more than a method of determining the intent behind the constitutional provisions it could not and did not build and add a new part to the Constitution
It cannot imply new tests outside he Constitution or be used to defeat constitutional provisions
366 G 367 A His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala 1973 Supp SCR 1 applied
There is no provision in our Constitution for a declaration of Martial Law except article 34 of the Constitution which recognises the possibility of Martial Law in this country
There is no separate indication in the Constitution of conditions in which Martial Law could be proclaimed
A Presidential order under article 3591 of the Constitution would ordinarily have a wider range and effect throughout the country than the existence of Martial Law in any particular part of the country
The Presidential proclamations are meant generally to cover the country as a whole
Martial Law is generally of a locally restricted application
The conditions in which what is called martial law may prevail result in taking Military Courts of powers even to try offences and the ordinary or civil courts will not interfere with this special jurisdiction under extraordinary conditions
Such a taking over by Military courts is certainly outside the provisions of Alt
3591 of the Constitution taken by itself
It could perhaps fall under Presidential powers under Articles 53 and 73 read with article 355
368 F H 369 A C Judicial proceedings in criminal courts not meant for the enforcement of Fundamental Rights are not either at the initial or appellate or revisional stages covered by the Presidential order of 1975
Habeas corpus petitions are not maintainable in such cases since the prisoner is deemed to be in proper custody under orders of a court
371 F G Neither Article 136 nor Art 226 of the Constitutional is meant for the exercise of an advisory jurisdiction
Attempts to lay down the law in an abstract form unrelated to the facts of particular cases not only do not appertain to the kind of jurisdiction exercised by this Court or by the High Courts under the provisions of article 136 and 226 respectively but may result in misapplications of the law declared by courts to situations for which they were not intended at all
306 D E
Per Chandrachud J The order issued by the President on June 27 1975 under Article 3591 does not suspend the fundamental principle that all executive action must have the authority of law to support it
Nor does the Presidential order give to the executive a charter to disobey the laws made by the Parliament which is the supreme law making authority413 B C The aforesaid Presidential order however deprives a person of his locus stand to move any court be it the Supreme Court or the High Court for enforcement of his Fundamental Rights which are mentioned in the order 192 Such deprivation or suspension enures during the period that the proclamation of emergency is in force or for such shorter period as may be specified in the order
413 C D The dominant purpose of the present petitions is to obtain an order of release from detention by enforcing the right to personal liberty
The purpose is not to obtain a mere declaration that the order of detention is ultra vires the Act under which it is passed
The former plea is barred by reason of the Presidential order
The latter is also barred because regard must be had to the substance of the matter and not to the form in which the relief is asked for
413 E F The Presidential order dated June 27 1975 bars any investigation or inquiry into the question whether the order of detention is vitiated by mala fides factual or legal or whether it is based on extraneous considerations or whether the detaining authority had reached his subjective satisfaction validly on proper and relevant material 413 F G Whether or not article 21 of the Constitution is the sole repository of the right to personal liberty in a petition filed in the High Court under article 226 for the release of a person detained under the  no relief by way of releasing the detenu can be granted because no person has a legal capacity to move any court to ask for such relief
The Presidential order takes away such legal capacity by including article 21 within it
The source of the right to personal liberty is immaterial because the words conferred by which occur in article 3591 and in the Presidential order are not words of limitation
413 G H 414 A The Presidential order does not bring about any amendment of article 226 and is not open to challenge on that ground
414 B The contention that article 226 which occurs in Chapter V of the Constitution is an entrenched provision and therefore under article 368 no amendment can be made to article 226 without ratification by the Legislatures of not less than one half of the States is untenable
It is true that article 226 is in entrenched provision which cannot suffer an amendment except by Following the procedure prescribed by the proviso to article 3682
But the presidential order is issued under the Constitution itself and if its true constitutional produces a certain results it cannot be said that some other Article of the Constitution stands thereby amended article 3591 provides for the passing of an order by the President declaring that the right to move for the enforcement of Fundamental Rights mentioned
in the order shall be suspended
That may in effect
affect the jurisdiction of the High Courts to entertain a petition for the issuance of the writ of habeas corpus
But that does not bring about any amendment of Article 226 within the meaning of article 368 which speaks of amendments to the Constitution by the Parliament in the exercise of its constitutional power
Article 226 and Article 3591 are parts of the same fundamental instrument and a certain interpretation of one of these Article cannot amount to an amendment of the other
1385 G H 386 A B The Presidential order neither bars the right of an accused to defend his personal liberty in the court of first instance or in a higher court nor does it bar the execution of decrees passed against the Government nor dos it bar the grant of relief other than or less than the release of the detenu from detention
414 B C Detention without trial is a serious on personal freedom but it bears the sanction of our Constitution
The clear and present danger test evolved by Justice Holmes in Schenck vs United States may well be extended to cases where there is a threat of external aggression
384 D E The object of Art 359 is to confer wider powers on the President than the power merely to suspend the right to file a petition for the writ of habeas corpus
Article 359 aims at empowering the President to suspend the right to enforce all or any of the Fundamental Rights conferred be Part III
It is in order to achieve that object that Article 359 does not provide that the President may declare that the remedy by way of habeas corpus shall be suspended during emergency
Personal liberty is but one of the Fundamental Rights conferred by Part m and the writ of habeas corpus is neculiar to the enforcement of the 193 right to personal liberty and therefore the suspension of the right to enforce the right conferred by article 21 means and implies the suspension of the right tc file a habeas corpus petition or to take any other proceeding to enforce the right to personal liberty conferred by Article 21
384 G H 385 A B The true implication of the Presidential order is to take away the right of any person to move any court for the enforcement of the rights mentioned in the order
In strict legal theory the jurisdiction and powers of the Supreme Court and the High Courts remain the same as before since the Presidential order merely take away the locus standi of a person to move these courts for the enforcement of certain Fundamental Rights during the operations of the Proclamation of Emergency
The drive of Article 3591 is not against the courts but is against individuals the object of the Article being to deprive the individual concerned of his normal right to move the Supreme Court or the High Court for the enforcement of the Fundamental Rights conferred by Part III of the Constitution 386 C E Sree Mohan Chowdhury vs The Chief Commissioner Union Territory of Tripura   451 referred to
The argument that the limited object of article 3591 is to remove restrictions on the power of the Legislature so that during the operation of the Emergency it would be free to make laws in violation of the Fundamental Rights specified in the Presidential order loses sight of the distinction between the provisions of article 358 and article 359 1A on the one hand and of Art 3591 on the other
Article 358 of  its own force removes the restrictions on the power of the Legislature to make laws inconsistent with article 19 and on the power of the Executive to take action under a law which may thus violate article 19
Article 358 does not suspend any right which was available under article 19 to any person prior to the Proclamation of Emergency
Article 3591 is wider in scope than article 358
In view of the language of article 3591 and considering the distinction between it and the provisions of article 358 there is no justification for restricting the operation of article 3591 as against laws made by the Legislatures in violation of the Fundamental Rights
386 G H 387 A E Sree Mohan Choudhary vs The Chief Commissioner Union Territory of Tripura  and Makhan Singh vs State of Punjab 1964 4 SCR 797
referred to
Article 3591 is as much a basic feature of the Constitution as any other and it would be inappropriate to hold that because in normal times the Constitution requires the Executive to obey the laws made by the Legislature therefore
Article 3591 which is an emergency measure must be construed consistently with that position
The argument of basic feature is wrong for yet another reason that article 3591 does not provide that the Executive is free to disobey the laws made by the Legislature
To permit a challenge in a court of law to an order of detention which is an Executive action on the ground that the order violates ar Fundamental Right mentioned in the Presidential order is to permit the detenu to enforce a Fundamental Right during emergency in manner plainly contrary to article 3591
388 E H 389 A All executive action which operates to the prejudice of any person must have the authority of law to support it
article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and other
It provides that so long as the Proclamation of Emergency subsists laws may be enacted and executive action may be taken ill pursuance of such laws which if the provisions of article 19 were operative would have been invalid
Article 3591 bars the enforcement of any Fundamental Right mentioned in the Presidential order thereby rendering it incompetent for any person to complain of its violation whether the violation is by the Legislature or by the Executive
389 H 390 A 391 E F State of Madhya Pradesh and Anr
vs Thakur Bharat Singh   District Collector of Hyderabad  ors
vs Ms Ibrahim  Co etc  Bennett Coleman  Co and ors
vs Union of India  ors
1973 833SCI76 194 2 SCR 757 773 775 and Shree Meenakshi Mills Ltd vs Union of India  405 406 and 428 distinguished
The Rule of Law rejects the conception of the dual State in which governmental action is placed in a privileged position of immunity from control be
Such a notion is foreign to our basic constitutional concepts
392 F Chief Settlement Commissioner Rehabilitation Department Punjab and ors vs Om Parkash  ors  660 661 and Eshugbayi Eleka vs Officer Administering the Government of Nigeria  670
distinguished
The Rule of Law argument like the basic feature argument is intractable
Emergency provisions contained in Part XVIII of the Constitution which are designed to protect the security of the State are as important as any other provision
Of the Constitution
The Rule of Law during an emergency is as one finds it in the provisions contained in Chapter XVIII of the Constitution
There cannot be a brooding and omnipotent Rule of Law drowning in its effervescence the emergency provisions of the Constitution
393 B D Article 3591 neither compels nor condones the breaches by the executive of the laws made by the Legislature
Such condonation is the function of an act of indemnity
393 G The object of empowering the President to issue an order under Alt
3591 suspending the enforcement of the right to personal liberty conferred by Part III of the Constitution cannot be to save all other rights to personal liberty except the one conferred by Part III which seems totally devoid of meaning and purpose
Their is nothing peculiar in the content of the right to personal liberty conferred by Part III so that the Constitution should provide only for the suspension of the right to enforce that particular kind of right leaving all other rights to personal liberty intact and untouched
This purpose cannot ever be achieved by interpreting Article 3591 to mean that every right to personal liberty shall be enforceable and every proceeding involving the enforcement of such right shall continue during the emergency except to the extent to which the right is conferred by Part III of the Constitution
The existence of the right to personal liberty in the pre constitution period was surely known to the makers of the Constitution
395 H 396 A D The right to personal liberty is the right of the individual to personal freedom nothing more and nothing less
That right along with certain other rights was elevated to the status of a Fundamental Right in order that it may not be tinkered with and in order that a mere majority should not be able to trample over it Article 3591 enables the President to suspend the enforcement even of the right which were sanctified by being lifted out of the common morass of human rights
If the enforcement of the Fundamental Rights can be suspended during an emergency it is hard to accept that the right to enforce no Fundamental Rights relating to the same subject matter should remain alive
396 G H 397 A The words conferred by Part Ill  which occur in article 3591 are not intended to exclude or except from the purview of the Presidential Order rights of the same variety or kind as are mentioned in Part III but which were in existence prior to the Constitution or can be said to be in existence in the post Constitution era
apart from the Constitution
The words conferred by Part III are used only in order to identify the particular rights the enforcement of which can be suspended by tho President and not in order to impose a limitation the power of the President so as to put those rights which exist or which existed apart from the constitution beyond the reach of that power
It therefore does not make any difference whether any right to personal liberty was in existence prior to the enactment of the Constitution either by way of a natural right statutory right common law right or a right available under the law of port
Whatever may be the source of the right and whatever may be its justification
the right in essence and substance is the right to personal liberty
That 195 right having been included in Part III its enforcement will stand suspended if it is mentioned in the Presidential order issued under Article 3591
397 E H 398 A C The rights conferred by article 21 and 19 cannot be treated as mutually exclusive But the suspension of the right to enforce the right of personal liberty means the suspension of that right wherever it is found unless its content is totally different as from one Article to another
The right conferred by Article 21 is only a description of the right of personal liberty in older to facilitate its exact identification and such a description cannot limit the operation of the Presidential order to those cases only where the right to personal liberty is claimed under Article 21
398 F G Rustom Cavasajee Cooper vs Union of India   578 referred to
The circumstance that The pre constitution rights continued in force after the enchantment of the Constitution in view of article 372 does not make any difference to this position because even assuming that certain rights to personal liberty existed before the Constitution and continued thereafter as they were not repugnant to any provision of the Constitution all rights to personal liberty
having the same content as the right conferred by article 21 would fall within the mischief to the Presidential order
398 C H 399 A The theory of eclipse has no application to such cases because that theory applies only when a pre Constitution law becomes devoid of legal force on the enactment of the Constitution by reason of its repugnancy to any provision of the Constitution
Such laws are not void but they are under an eclipse so long as the repugnancy lasts
When the repugnancy is removed the eclipse also is removed and the law becomes valid
399 A B As regards the doctrine of merger every prior right to personal liberty merged in the right to personal liberty conferred by Part III
But whether it merged or not it cannot survive the declaration of suspension if the true effect of the Presidential order is the suspension of the right to enforce all and every right to personal liberty
In that view it would also make no difference whether the right to personal liberty arises from a statute or from a contract or from a constitutional provision contained in some Part other than Part III
399 B C Article 3613 speaks of a process for the arrest or imprisonment of a Governor issuing from any court
Fundamental Rights can be exercised as against judicial orders but the circumstances in which such a Process may come to be issued
if at all may conceivably affect the decision of the question whether a Presidential Order issued under Article 3591 can bar the remedy of an aggrieved Governor400 B C A failure to comply with Article 256 may attract serious consequences but no court is likely to entertain a grievance at the instance of a private party that article 256 has not been complied with by a State Government
400 D As regards the claim to personal liberty founded on a challenge to an order on the ground of excessive delegation His Lordship preferred to express no firm opinion though the greater probability is that such a challenge may tail in face of a Presidential order of the kind which has been passed in the instant case
400 D E The existence of common law rights prior to the Constitution will not curtail the operation of the Presidential order by excepting
those rights from the purview of the order
400 E Dhirubha Devisingh Gohil vs The State of Bombay 1955 1 SCR and Makhan Singh v State of Punjab 1964 4 SCR 797 818 819 applied
The Presidential order dated June 27 1975 does not contain any clause like the one in the order dated November 3 1962 Article 3591 is only an 196 enabling provision and the validity of a plea cannot be tested with reference to that Article
The right to move a court for the enforcement of the rights conferred by Part III is not taken away by Article 3591
It is the Presidential order passed in pursuance of the powers conferred by that Article by which such a consequence can be brought about
The Presidential order in the instant case is not subject to the preconditions that the detenu should have been deprived of his right under any particular Act and therefor there is no scope for the enquiry whether the order is consistent or in conformity with any particular Act
405 B H 406 A 407 B C Makhan Singh vs State of Punjab 1964 4 SCR 797 Dr Ram Manohar Lohia vs State of Bihar  K Anandan Nambiar and Anr
vs Chief Security Government of Madras  ors
 State of Maharashtra vs Prabhakar Pandurang Sangzgiri  Anr   discussed and distinguished
A mala fide exercise of power does not necessarily imply any moral turpitude and may only mean that the statutory power is exercised for purposes Other than those for which the power was intended by law to be exercise
In view of the fact that an unconditional Presidential order of the present kind effects the locus standi of the petitioner to move any court for the enforcement of any of his Fundamental Rights mentioned in the order it would not be open to him to show that the statutory power has been exercised for a purpose other than the one duly appointed under the law
So long as the statutory prescription can be seen on the face of the order to have been complied with no further inquiry is permissible as to whether the order is vitiated by legal mala fides
409 E F Makhan Singh vs State of Punjab 1964 4 SCR 797 Jai Chand Lall Sethia vs State of West Bengal  ors
1966 Supp
SCR 464 and Durgadas Shirali vs Union of India  ors
  referred to
As regards mala fides in the sense of malice in fact the same position must hold good because the Presidential order operates as a blanket ban on any and every judicial inquisition into the validity of the detention order
If in any given ease an order of detention appears on the very face of it to be actuated by an ulterior motive the court would have jurisdiction to set it aside because no judicial inquiry of any sort is required to be undertaken in such a case
But short of such ex facie vitiation any challenge to a detention order on the around of actual mala fides is also excluded under the Presidential order dated June 27 1975
1407 G H 408 A B Section 16A9 is not unconstitutional on the ground that it constitutions an encroachment on the writ jurisdiction of the High Court and article 226
There is no warrant for reading down that section so as to allow the courts to inspect the relevant files to the exclusion of all other parties
409 D D Section 16A 9 is in aid of the constitutional power conferred by article 3591 and further effectuates the purpose of the Presidential order issued under that Article
If so it cannot be declared unconstitutional
410 A The rule enunciated in section 16A9 is a genuine rule of evidence
410 B A K Gopalan vs State of Madras  and Mohd Maqbool Damnoo vs State of Jammu  Kashmir   distinguished
The principles of res judicata and estoppel the conclusive presumptions of law and various provisions of substantive law deny a free play to courts in the exercise of their jurisdiction
These are not for that reason unconstitutional qua the High Court s jurisdiction under article 226
410 F The limits of judicial review have to be co extensive and commensurate with the right of an aggrieved person to complain of the invasion of his rights
Section 16A9 cannot be said to shut out an inquiry which is otherwise within the jurisdiction of the High Court to make
411 B 197 Section 18 does not suffer from the vice of excessive delegation and is a valid piece of legislation
414 D That section only declares what was the true position prior to its enactment on June 25 1975
The amendment of section 18 by the substitution of the words in respect of whom an order is made or purported to be made under section 3 in place of the words detained under this Act does not render the section open to a challenge on the ground of excessive delegation
The words purported to be made have been inserted in order to obviate the challenging that the detention is not in strict conformity with the Act
Such a challenge is even otherwise barred under the Presidential order
The object of he said provision is not to encourage the passing of lawless orders of detention but to protect during emergency orders which may happen lo be in less Than absolute conformity with the 
412 B C His Holiness Kesvananda Bharati Sripadagalarvaru vs State of Kerala 1973 Supp
SCR I and Makhan Singh
v State of Punjab 1964 4 SCR 797 referred
A jurisdiction of suspicion is not a forum for objectivity
The only argument which the court can entertain is whether the authority which passed the order of detention is duly empowered to pass it whether the detenu is properly identified and whether on the face of its order the stated purpose of detention is within the terms of law
414 E F Zamora s case  Rex vs Halliday   271
liversidge vs Sir John Anderson  and Greene vs Secretary of State  referred to
No judgment can be read as if it is a statute
The generality of the expressions which may be found in a judgment are not intended to be expositions of the who s law but are governed and qualified by the particular facts of the case in which such expressions are to be found
It is not a profitable task to extract a sentence here and there from a judgment and to build upon it because 
the essence of the decision is its ratio and not every observation found therein
401 C E Quinn vs Leatham   506 auld State of Orissa vs Sudhansu Sekhar Misra  Ors1968 2 SCR 154 163 reiterated
Per P N Bhagwati J
The Presidential order dated June 27 1975 bars maintainability of a petition for a writ of habes corpus when an order of detention is challenged on the ground that it is vitiated by mala fides legal factual or is based on extraneous considerations or is not under the Act or is not in compliance with it
477 B C The suspension of the privilege of the writ does not legalise what is done while it continues it merely suspends for the time
being the remedy of the writ
461 A B The words the right to move any court are wide enough to include all claims made by citizens in any court of competent jurisdiction where it shown that the said claims cannot be effectively adjudicate upon
without examining the question as to whether the citizen is in substance seeking to enforce any of the specified Fundamental Rights
There can be no doubt that in view of the Presidential order which mentions article 21 the detenus would have no locus standi to maintain the writ petitions if it could be shown that the writ petitions were for the enforcement of the rights conferred by article 21
424 C E Makhan Singh vs State of Punjab 1964 4 SCR 797 followed
When a Presidential order is issued under article 353 clause 1 the Fundamental Right mentioned in the Presidential order is suspended so that the restriction on the power of the executive or the legislature imposed by the Fundamental Right is lifted while the Presidential order is in operation and 198 the executive or the legislature is free to make any law or to make any action which it would but for the provisions contained in Part 111 be competent to make or to take
the words but for the provisions contained in that part that is but for the Fundamental Rights mean if the Fundamental Rights were not there in the Constitution the executive being limited by law would still be unable to take any action to the prejudice of a person except by authority of law and in conformity with or in accordance with law and therefore even the Presidential order mentions article 21 clause 1A of article 359 Would not enable the executive to deprive a person of his Personal liberty without sanction of law and except in conformity with or in accordance with law
It  an order or dentention is made by the executive without the authority of law it would be invalid and its invalidity would not be cured by clause IA or article 359 because that clause does not protect executive action taken without lawful authority
An unlawful order of detention would not be protected from challenge under article 21 by reason of clause IA of article 359 and the detenu would be entitled to complain of such unlawful detention as being in violation of  article 21 except in so far as his right tor move the court for that purpose may be held to have been taken away by clause 1 of article 359
427 C H State of Madhya Pradesh v Thakur Bharat Singh   District Collector of Hyderabad vs Ms Ibrahim  Co  Bennett Coleman  Co vs Union of India  and Shree Meenakshi Mills Ltd vs Union of India  applied
Even though a Presidential Order issued under clause 1 of Art 359 mentions article 21 where it is found that a detention has not been made in pursuance of lawful authority or in other words the detention is without the authority of law whether by reason of there being no law at all or by reason of the law under
which the detention is made being void clause 1A of Art 359 would not protect it from challenge under article 21 and it would be in conflict with that Article 429 H 430 A  The words rights conferred by Part III cannot be read in isolation nor can they be construed by reference to theoretical or doctrinaire considerations
They must be read in the context of the provisions enacted in Part 111 in order
to determine what are the rights conferred by the provisions in that Part It is true that Art 21 is couched in negative language
It is not uncommon in legislative practice to use negative language for conferring a right
That is often done for lending greater emphasis and strength to the legislative enactment
Article 21 confers the Fundamental Right of personal liberty
430 F H Punjab Province vs Daulat Singh 73 Indian Appeals 59 Basheshar Nath vs The Commissioner of Income Tax Delhi  Rajasthan 1959 Supp
1 SCR 529 State of Bihar vs Maharajidhiraj Kameshwar Singh of Derbhanga  Ors
at p988 PD Shamdasani vs Central Bank of India Ltd  AND RC Cooper vs Union of India  referred to If article 21 were construed as not conferring a right to personal liberty then there would be no Fundamental Right conferred by article 21 and even if a person is deprived of his personal liberty otherwise than in accordance with the procedure established by law and there is infringement of Art 21 such person would not be entitled to move the Supreme Court for a writ of habeas corpus under article 32 for that Article is available only for enforcement of the rights
conferred by Part III
That would be a starting consequence as it would deprive the Supreme Court of a wholesome jurisdiction to protect the personal liberty of an individual against illegal detention resulting in a departure from the well settled constructional position of article 21
432 B D No attribute of personal liberty can be regarded as having been calved out of article 21
That Article protects all attributes of persona liberty against executive action which is not supported by law
When a person is detained
there is deprivation of personal liberty within the meaning of article 21
1433 A BI Kharak Singh vs State of UP  Ors
1964 1 SCR 332
referred to 199 The protection under article 21 is only against State action and not against private individuals and the protection it secures it is a limited one
The only safeguard enacted by article 21 is that a person cannot be deprived of his persona liberty except according to procedure prescribed by State made law
It is clear on plain natural construction of its language that article 21 imports two requirements first there must be a law authorising deprivation of personal liberty and secondly such law must prescribe a procedure
The first requirement is indeed implicit in the phrase except according to procedure prescribed by law
When a law prescribes a procedure for depriving a person of personal liberty it must a fortiori authorise such deprivation
Article 21 thus provides both substantive as well as procedural safeguards
Two other ingredients of article 21 are that there must not only be a law authorising deprivation of personal liberty there must also be a procedure prescribed by law or in other words law must prescribe a procedure
433 C F 434 A CH 435 B P D Shamdasani vs Central Bank of India Ltd  Smt
Vidya Verma vs Dr Shiv Narain and A K Gopalan vs State of Madras   followed
Article 21 operates not merely as a restriction on executive action against deprivation of  personal liberty without authority of law but it also enacts d check on the legislature by insisting that the law which authorises depravation must establish a procedure
What the procedure should be is not laid down in this Article but there must be some procedure and at the least it must conform to the minimal requirements of article 22
Law within the meaning of article 21 must be a valid law and  not only must it be within the legislative competence of the legislature enacting it but it must also not be repugnant to any of the Fundamental Rights enumerated in Part III
435 C D Shambhu Nath Sarkar vs The State of West Bengal   and Khudiram Das vs The State of West Bengal  ors
  referred The constitutional principle in Eshugabayi E eko vs The officer Administrating the Government of Nigeria has been accepted by the courts in India as part of the law of the land
In our country even in pre Constitution days the executive was a limited executive that is an executive limited by law and it could act only in accordance with law
438 B 439 A Liversidge vs Sit
John Anderson  Vimlabai Deshpande vs Emperor AIR 1945 Nag 8
Jitenderanath Ghosh vs The Chief Secretary to the Government of Bengal ILR at 377 In re Banwarilal Roy 48 Cal
Weekly Notes 766 at 780 Secretary of State for India vs Hari Bhanji Mad 373 Province of Bombay vs Khushaldas Advani  and P K Tare vs Emperor AIR 1943 Nag 26 referred
Even prior the Constitution the principle of rule of law that the executive cannot act to the prejudice of a person without the authority of law was recognised as part of the law of the land and was uniformly administered by the courts
It was clearly law in force and ordinarily by reason of article 372 it would have continued to subsist as a distinct and separate principle of law hr even after the commencement of the Constitution until some aspects of  this principle of Law were expressly recognised and given constitutional embodiment in different Articles of the Constitution
439 B C When this principle of rule of law that the executive cannot deprive a person of his liberty except by authority of law is recognised and embodied as a Fundamental light and enacted as such in article 21 it cannot continue to have a distinct and separate existence independently and apart from this Article in which it has been given constitutional vesture unless it were also enacted as a statutory principle by some positive law of the State
It cannot continue in force under article 372 when it is expressly recognised and embodied as a Fundamental Right in article 21 and finds a place in the express provisions of the Constitution When the Constitution makers have clearly intended 200 that this right should be subject to the limitation imposed by article 359 clause 1 and 1A it would be contrary to all canons of construction to hold that the same right continues to exist independently but free from the limitation imposed by article 359 clauses 1 and 1A Such a construction would defeat the object of the constitution makers in imposing the limitation under article 359 clauses 1 and 1A and make a mockery of that limitation
The Presidential order would in such a case become meaningless and ineffectual
439 F H 440 A C The only way in which meaning and effect can be given to the Presidential order suspending the enforcement of the right of personal liberty guaranteed under article 21 is that the principle of Rule of Law on what the executive cannot interfere with the personal liberty of any person except by
authority of law is enacted in article 21 and it does not exist as a distinct and separate principle conferring a right of personal liberty independently and apart from that Article
Consequently when the enforcement of the right of personnel liberty conferred by article 21 is suspended by a Presidential order the detenu cannot circumvent the Presidential order and challenge the legality of his deletion by falling back on the supposed right of personal liberty based on the principle of Rule of Law
440F H The executive is plainly and indubitably subordinated to the law and it cannot flout the mandate of the law but must act in accordance with the law
441 B Eastern Trust Company vs Mckenzie Mann
 Co  Rai Sahib Ram Jawaya Kapur vs The State of Punjab and State of Madhya Pradesh vs Thakur Bharat Singh  referred to The Presidential orders issued under article 359 clause 1 do not give any power to the executive to alter or suspend or flout the law nor do they enlarge the power
Of the executive so as to permit it to go beyond what is sanctioned by law
As soon as the emergency comes to an end and the Presidential order ceases to be operative the unlawful action of the executive becomes actionable and the citizen is entitled to challenge it by moving a court of law
161 A C Whilst a Presidential Order issued under article 359 clause 1 is in operation the Rule of Law is not obliterated and it continues to operate in all its vigour
The executive is bound to observe and obey the law and it cannot ignore or disregard it
If the executive commits a breach of the law its action would be unlawful but merely the remedy would be temporarily baned where it involves enforcement of any of the Fundamental Rights specified in the Presidential order
461 C D When the right of personal liberty based on the Rule of Law which existed immediately prior to the Commencement of the Constitution has been enacted in the Constitution as a Fundamental Right in article 21 with the limitation that when there is a Proclamation of Emergency the President may by order under article 359 clause 1 suspend its enforcement that right of personal liberty based on the Rule of law cannot continue to exist as a distinct and independent right free from the limitation as to enforcement contained in article 359 clause 1
It would be meaningless and futile for the Constitution makers to have imposed this limitation in regard to enforcement of the right of personal liberty guaranteed by article 21 if the detenu could with impunity disregard such limitation and fall back on the right of personal liberty based on the Rule of Law
445 E G Attorney General vs De Keyser s Royal Hotel   discussed
Dhirubha Devisingh Gohil vs The State of Bombay 1955 I SCR 691 followed
On an application of the maxim expressum facit cessare tacitum
that is what is expressed makes what is silent cease a principle of logic and common 201 sense and not merely a technical rule of construction the express provision in article 21 that no person shall be deprived of his life or personal liberty except according to procedure prescribed by law will necessarily exclude a provision to the same effect to be gathered or implied from the other provisions of the Constitution
447 D E 448 D Shankara Rao Badami vs State of Mysore  and State Walsh and ors vs Lennon and ors
1942 Irish Report
of 112 applied
The contention that the principle of Rule of Law that the executive cannot act to the prejudice of a person except by authority of law continues to exist as a distinct and independent Principle unaffected inter alia by the enactment of article 21 is not correct
451 Al State of Madhya Pradesh vs Thakur Bharat Singh 19671 2 SCR 454 District Collector Hyderabad vs Ms Ibrahim  Co  Bennet Coleman  Co vs Union of India   Shree Meenakshi Mills Ltd vs Union of India  ors  Bidi Supply Co vs Union of India   Bishan Das  Ors
v State of Punjab   State of Bihar vs Kameshwar Prasad Verma   Eshugbayi Eleko vs The officer Administering the Government of Nigeria AIR 1931 PC and Makhan Singh V Sate of Punjab 1964 4 SCR 797 distinguished
The words any court in Article 21 must be given their plain grammatical meaning and must be construed to mean any court of competent jurisdiction which would include the Supreme Court and the High Courts before which the specified rights in article 359 clause  1  can be enforced by the citizens454 Al Makhan Singh V State of Punjab  followed
When the Presidential order is without any condition in a detenu contends that the order of detention has been made mala fide or that it has been passed by a delegate outside the authority conformed on him under the Act or that it has been exercised inconsistently with the conditions prescribed in that behalf that is it is not in accordance with the Provisions of law such a plea would be barred at the threshold by the Presidential order
458 B C Quinn  Leathen   State of Orissa vs Sudhansu Sekhar Misra  Makhan Singh Tarsikka vs The State of Punjab  A Nambiar vs Chief Secretary  and Sate of Maharashtra vs Prabhakar Pandurang Sangzgiri   distinguished
There is no scope for the contention that even if the enforcement of the Fundamental Right conferred by article 21 is suspended by the Presidential order the detenu can still enforce a supposed natural right of personal liberty in a court of law
459 D His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala 1973 Supp
SCR 1 and Golak Nath  Ors
vs State of Punjab   referred to
If the positive law of the State degrees that no person shall be deprived of his personal liberty except according to the procedure described by law the enforcement of such statutory right would not be barred by the Presidential order
But there is no legislation in our country which confers the right of personal liberty by providing that there shall be no deprivation of it except in accordance with law
in the contrary section 18 of the  enacts that no person in respect of whom an order of detention is made or purposed to be made under section 3 shall have any right to personal liberty by virtue of natural law or common law if any
h Because the Indian Penal Code in section 342 makes it penal to would fully confine any person and the offence of wrongful confinement postulates that no one shall be deprived of his personal liberty except by authority of law it cannot 202 be said on that account that section 342 of the Indian Penal Code confers a right of personal liberty
The utmost that can be said is that this section proceed on a recognition of the right of personal liberty enacted in article 21 and makes it an offence to wrongfully confine a person in breach of the right conferred by that constitutional provision 459 E H 460 A The words four any other purpose in article 226 greatly enlarge the jurisdiction of the High Court and the High Court can issue a writ of habeas corpus if it finals that the intention of a person is illegal
It is not necessary for this purpose that the court should be moved by the detenu
It is sufficient if it is moved by any person affected by the order of intention
When it is so moved and it examines the legality of the order of detention it does not enforce the right of personal liberty of the detenu but it merely keeps the executive within the bounds of law and enforces the principle of legality
The words 
any other purpose cannot be availed of for the purpose of circumventing the constitutional inhibition flowing from the Presidential order
460 B G Article 359 clause 1 and the Presidential order issued under it do not have the effect of making unlawful actions of the executive lawful
461 F G When a person takes proceedings under the Code of Criminal Procedure in connection with the offence of wrongful confinement or murder or launches of prosecution for such offence he cannot be said to be enforcing the fundamental Right of the detenu or the murdered man under article 21 so as to attract the inhibition of the Presidential order
461 F G An application seeking to enforce a statutory obligation imposed on the police officer and a statutory right created in favour of an arrested person by section 57 of the Criminal Procedure Code would not be barred because what is suspended by a Presidential Order specifying article 21 is the right to move the court for enforcement of the Fundamental Right conferred by that article and not the right to move the court for enforcement of the statutory right to be released granted under section 57 Cr
P C 462 G If a positive legal right is conferred on a person by legislation and he seeks to enforce it in a court it would not be within the inhibition of a Presidential Order issued under article 359 clause 1
463 G H This does not mean that whenever a petition for a writ of habeas corpus comes before the court it must be rejected straightaway without even looking at the averments made in it
The court would have to consider where the bar of the Presidential order is attracted and for that purpose the court would have to the whether the order of detention is one made by an authority empowered to pass such an order under the Act
If it is not it would not be State action
and the petition would not be one for enforcement of the right confirmed by article 21
463 G H 464 A Once it is held that the obligation of the executive is not a deprive a person of his personal liberty except in accordance with law is to be found only an article 21 and no where else it must follow necessarily that in challenging the legality of the detention what the applicant claims is that there
is  in fact fact by the executive of the right of personal liberty conferred by Art 21 and that immediately attracts the applicability of the Presidential order
460 D E It is the basic characteristic and essence of martial law that during the time that it is in force the individual cannot enforce his right to life and liberty by resorting to judicial process and the courts cannot issue the writ of habeas corpus or pass any suitable orders 442 G John Allen s case 1921 2 Irish Reports 241 referred to Merely by declaring martial law would not by itself deprive the courts of the power to issue the writ of habeas corpus or other process for the protection of the right of the individual to life and liberty
443 A 203 The declaration of martial law which is not even expressly provided in the Constitution cannot override the provisions of the Articles conferring the right to life and liberty as also of Articles 32 an l 226 and unless the right of an individuals to move the courts for enforcement of the right to life and liberty can be suspended or taken away by or under an express provision of the Constitution the individual would be entitled to enforce the right to life and liberty under article 32 or article 226 or by resorting to the ordinary process w even during martial law
443 A C Article 34 clearly postulates that during the time that material law is in force no judicial process can issue to examine the legality of an act done by the military authorities or the executive in connection with the maintenance of restoration or order
443 E F During the martial law the courts cannot and should not have the power to examine the legality of the action of the military authorities or the executive on any ground whatsoever including the ground of mala fides
But if the courts are to be prevented from exercising such power during martial law the situation can be brought about only by a Presidential order issued under C Act 359 clause i and in no other way and the Presidential Order
in so far as it suspends the enforcement of the right of personal liberty confirmed under article 21 must be constructed to bar challenge to the legality of detention in am court including the Supreme Court and the High Courts whilst the Presidential Order is in operation 444 A C Ex parte Milligan 1866 4 Wallace 2 Moyer vs Peabody  and Duncan vs Kohanmeku   referred to
There are two rights which the detenu has in this connection one is the Fundamental Right conferred by article 22 clause 5 and the other is the statutory right conferred by section 8
Though the content of both these rights is the same they have distinct and independent existence and merely because enforcement of one is suspended it does not mean that the other also cannot be enforced
463 B C The theory of reflection is clearly erroneous
If the right conferred under section 8 were a reflection of the Fundamental Right conferred by article 22 clause 5 which is the object reflected must necessarily result in the effacement of the right under section 8 which is said to constitute the reflection
But even if article 22 clause 5 were deleted from the Constitution section 8 would still remain on the statute book until repealed by the legislature
The Presidential Order would not therefore bar enforcement of the right conferred by section 8
463 C D Fathima Beebi vs M K Ravindranathan 1975 Crl
1164 over ruled
It is true that sub sec
9 a of section 16A does not specifically refer to any court
But there is inherent evidence in the sub section itself to show that it is intended to prevent disclosure of such grounds information and materials before a court
There is clearly an echo of section 123 of the Indian Evidence Act
Sub section 9 of section It is must also be held to be designed to achieve the same intention as prohibiting disclosure even to a court
Sub section 9 a of section 16A cannot therefore be read down so as to imply an exception in favour of disclosure to a court
469 D F Khudiram Das vs The State of West Bengal  Ors
1375  SCR 832  Lee vs Burrel 170 English Reports 1402 and Liversidge vs Sir John Anderson  referred to
There can be no doubt that article 226 is a constitutional provision and it empowers the High Court to issue a writ of habeas corpus for enforcement of the Fundamental Right by article 21 and also for any other purpose
The High Court has
therefore constitutional power to examine the Legality of detention and for that purpose to inquire and determine whether the detention is in accordance with the provisions of law
The constitutional Power cannot be taken away or abridged by a legislative enactment
If there is any legislative
204 provision which obstructs or retards the exercise of this constitutional power it would be void
It is therefore clear that if it can be shown that sub section 9 a of section 16A abridges or whitles down the constitutional power of the High Court under article 226 or obstructs or retards its exercise it would be void as being in conflict with article 226
If there is a legislative provision which prohibits disclosure of the grounds information and materials on which the order of detention is based and prevents the court from calling for the production of such grounds information and materials it would obstruct and retard the exercise of the constitutional power of the High Court under article 226 and would be void as offending that Article
470 C D 471 A B E F Hari Vishnu Kamath vs Syed Ahmad Ishaque  Ors   Durga Shankar Mehta vs Thakur Raghuraj Singh  Ors
1955 1 SCR 267 Raj Krushna Bose vs Binod Kanungo  Ors
  The Kerala Education Bill 1957 1959 SCR 995 Prem Chand Garg vs Excise Commissioner UP Allahabad 1963 Supp
1 SCR 885 Khudiram Das vs State of West Bengal   Biren Dutta  Ors
v Cheif Commissioner of Tripura  Anr
  MM Damnoo vs J  K State  and AK Gopalan vs State of
Madras 1950 SCR p 80 referred
A rule of evidence merely determines what shall be regarded as relevant and admissible material or the purpose of enabling the court to come to a decision in the exercise of its jurisdiction and it does not in any way detract from or affect the jurisdiction of the court and it cannot in the circumstances be violative of article 226
But in order that if should not fall foul of article 226 is must be a genuine rule of evidence
If in the guise of enacting a rule of evidence the legislature in effect and substance disable and impedes the High Court from effectively exercising its constitutional power under article 226
such an enactment would be void
It will be colourable exercise of legislative power
The legislature cannot be permitted to violate a constitutional provision by employing an indirect method
It a legislative provision though in form and outward appearance a rule of evidence is in substances and reality something different obstructing or impeding the exercise 
The jurisdiction of the High Court under article 226 the form in which the legislative provision is clothed would not safe it from condemnation
474 B C It is well settled that in order to determine the true character of a legislative provision
the court must have regard to the substance of the provision and not its form
Sub section 9a of section 16A is in form and outward appearance a rules of evidence which says that the grounds information and materials on which the order of detention is made or the declaration under sub section or sub section 3 is based shall be treated as confidential and shall be deemed to refer to matters of State and be against the public interest to disclose
Sub section
9 a of section 16A assumes valid declaration under sub section
2 or sub section
3 and it is only when such a declaration has been made that sub section
9a of section 16A applies or in other words
It is only in cases where a person is detained in order to deal effectively with the emergency
that the disclosure of the grounds information and materials is prohibited by sub sec
9a of section 16A 474 E F 475 B C E F The rule enacted in sub section
9a of section 16A bears close analogy to a rule of conclusive presumption and in the circumstance it must be regard as a genuine rule of evidence
476 D If the grounds information and materials have no relation to matter of State or they cannot possibly be of such a character that their closure would injure public interest the legislature cannot by merely employing a legal function deem them to refer to matters of State which it would be against public interest to disclose an 1 thereby exclude them from the judicial ken
That would not be a genuine rule of evidence it would be a colourable legislative device a fraudulent exercise of power
There can be no blanket ban on disclosure of the grounds information and materials to the High Court of this Court irrespective of their true character in such cases 476 E F 205 M M Damnoo vs State of J  K   A K Gopalan vs State of Madras  and Liversidge vs Sir John Anderson  referred to
The grounds information and materials in almost all cases would be of a confidential character falling within the class of documents privileged under section 123 and hence the rule enacted in sub section genuinely partakes of the character of a rule of evidence
Sub section
9 a of section 16A enacts a genuine rule of evidence and it does not detract from or affect the jurisdiction of the High Court under article 225 and hence it cannot be successfully assailed as invalid
476 G H 477 A There is no warrant for reading down sub section 9A of section 16 so as to imply a favour in favour of disclosure to the court The provision does not constitute an encroachment on the constitutional jurisdiction or the High Court under article 226 and is accordingly not void
477 C D If the declaration under sub section 2 or sub section
3 is invalid subs 9a of section 16A will not be attracted on the grounds of information and materials on which the order of detention is made would not be privileged under sub section therefore sub section 9a of section 16A enacts a genuine rule of evidence
477 A B His Lordship thought it unnecessary to go into the question of construction and validity of section 18 of the  464 A An obiter cannot take the place of the ratio
Judges are not oracles
It has no binding effect and it cannot be regarded as conclusive on the point when considering the observations of a High judicial authority like this Court the greatest possible care must be taken to relate the observations of a Judge to the precise issues before him and to confine such observations even though expressed in broad terms in the general compass of the question before him unless he makes it clear that he intended his remarks to have a wider ambit
It is not possible for Judges always to express their judgments so as to exclude entirely the risk that in some subsequent case their language may be misapplied and any attempt at such perfection of expression can only lead to the opposite result of uncertainty and even obscurity as regard the case in hand
1455 F H 456 A C H M Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur  Ors
vs Union of India   applied Per H R Khanna J dissenting Article 21 cannot be considered to be the role repository of the right to life and personal liberty
The right to life and personal liberty is the most decisions right of human beings in civilised societies governed by the rule of law
H Sanctity of life and liberty was not something new when the Constitution was drafted
It represented a facet of higher values which mankind began to cherish in its evolution from a state of tooth and claw to a civilized existence
The principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the Constitution
It was a necessary corollary of the concept relating to the sanctity of life and liberty it existed and was in force before the coming into force of the Constitution
268 C D Even in the absence of article 21 in the Constitution the State has got no power to deprive a person of his life or liberty without the authority of law
That is the essential postulate and basic assumption of the Rule of Law and not of men in all civilised nations
Without such sanctity of life and liberty the distinction between a Lawless society and one governed by laws would cease to have any meaning
the principle that no one shall be deprived of his life or liberty without the authority of law is rooted in the consideration that life and liberty are priceless possessions which cannot be made the plaything of individual whim and caprice and that any act which has 206 the effect of tampering with life and liberty must receive substance from and sanction of the laws of the land
Article 21 incorporates an essential aspect of that principle and makes it part of the Fundamental Rights guaranteed in part III of the Constitution
It does not however follow from the above that if article 21 had not been drafted and inserted in Part III in that even would have been permissible for the State to deprive a person of his life or liberty without the authority of law
There are no case to show that before the coming into force of the Constitution or in countries under Rule of Law where there is no provision corresponding to article 21 a claim was ever sustained by the court that the State can deprive a person of his life or liberty without the authority of law
302 H 269 H 270 A C Olmstead vs United States  1928 James Sommersett s case 1772 16 Cr
Pract
Fabrigas vs Mostyn  Ameer Khan s case 6 Bengal Law Reports 392
Eshugbai Eleko vs Officer Administering the Government of Nigeria  Prabhakar Kesheo Tare  Ors
vs Emperor AIR 1943 Nag 26 Vimlabai Deshpande vs Emperor AIR 1945 Nag 8 Jitendranath Ghosh vs The Cheif Secretary to the Government of Bengal ILR  In re Banwari Lal Roy  Ors
Bidi Supply Co vs The Union of India  Ors  and Baheshar Nath vs The Commissioner of Income tax Delhi  Rajasthan  Anr
1959 Supp
1 528 referred to
The view that when right to enforce the right under article 21 is supplied the result would be that there would be no remedy against deprivation of a persons life or liberty by the State even though such deprivation is without the authority of law or even in flagrant violation of the provisions of law is hot acceptable
the facts that the framers of the Constitution made an aspect of such right a part or the fundamental Rights did not have the effect of determining the independent identity of such right and of making article 21 to be the sole repository
Of that right
The real effect was to ensure that a law under which a per on can be deprived of his life or personal liberty should prescribe a procedure for such deprivation or such law should be a valid law not violation of Fundamental Rights guaranteed by Part III of the Constitution Recognition as Fundamental Right of one aspect of the pre constitutional right cannot have the effect of making things less favourable so far as the sanctity of life and personal liberty is concerned
compared to the position if an aspect of such right had not been recognised as Fundamental Right because of The vulnerability of Fundamental Rights accruing from article 359
1271 D G A K Gopalan vs State of Madras  and Dhirubha Devisingh Gohil vs The State of Bombay 1955 I SCR 691 referred to
After the coming into force of the Constitution a detenu has two remedies one under article 226 or article 32 of the Constitution and another under section 491 of the Code of Criminal Procedure
The remedy under an earlier statutory provision would not get obliterated because of the identical remedy by a subsequent Constitutional provision and that the two can co exist without losing their independent identity
1272 D E Makhan Singh vs State of Punjab 1964 4 SCR 797 applied
Dhirubha Devisingh Gohil vs The State of Bombay 1955 I SCR 691 not invokable
The principle that no one shall be deprived of his life or liberty without the authority of law stems not merely from the basic assumption in every civilised society governed by the Rule of Law of the sanctity of life and liberty it flows equally from the fact that under our penal laws no one is empowered to deprive a person of his life or liberty without the authority of law 272 l I 273 A The fact that penal laws of India answer to the description of the word law which has been used in article 21 would not militate against the inference 207 that article 21 is not the sole repository of the right to life or personal liberty
Nor is it the effect of article 21 that penal laws get merged in article 21 because of the act that they constitute law as mentioned in article 21 for were it so the suspension of the right to move a court for enforcement of Fundamental Right contained in article 21 would also result in suspension of the right to move any court for enforcement of penal laws
At one time the Constitution came into force the legal position was that no one could be deprived of his life or liberty without the authority of law
273 A C Director of Rationing and Distribution vs The Corporation of Calcutta  ors
  relied on
It is difficult to accede to the contention that because of article 21 of the Constitution the law which was already in force that no One could be deprived of his life or liberty without the authority of law was obliterated and ceased to remain in force
No rule of construction or interpretation warrants such an inference
The constitutional recognition of the remedy of writ of habeas corpus did not obliterate or abrogate the statutory remedy of writ of habeas corpus
Section 491
Of the Code of Criminal Procedure continued to he a part of that Code till that Code was replaced by the new Code
Although the remedy of writ of habeas corpus is not now available under
the new Code of Criminal Procedure
1973 the same remedy is still available under article 226 of the Constitution
273 H 274 A Ci Makhan Singh vs State of Punjab 1964 4 SCR 797 relied on
According to the law in force in India before the coming into force of the Constitution no one could be deprived of his life and personal liberty without the authority of law
Such a claw continued to be in force after the coming into force of the Constitution in view of article 372 of the Constitution
303 The word law has been used in article 21 in the sense of State made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice
The procedure established by law means the procedure established by law made by the State that is to say the Union Parliament or the legislatures of the States
Law meant a valid and binding law under the provisions of the Constitution and not one infringing Fundamental Rights
266 C D A K Gopalan vs State of Madras   explained
The effect of the suspension of the right to move any court for the enforcement of the right conferred by article 21 is that when a petition is filed in a court the court would have to proceed upon the basis that no reliance can be placed upon that Article for obtaining relief from the court during the period of emergency
266 D E Starting consequences would follow from the acceptance of the contention that consequent upon the issue of the Presidential order in question no one can seek relief from courts during the period of emergency against deprivation of life and personal liberty
If two constructions of the Presidential order were possible the court should lean in favour of a view which does not result in such consequence
The construction which does not result in such consequences is not only possible it is also pre eminently possible
1303 B C Equally well established is therule of construction that if there be a conflict between the municipal law on one side and the international law or the provisions of any treaty obligations on the other the courts would give effect to municipal law
however two constructions of the municipal law are possible The court should lean in favour of adopting such construction as would make the provisions of the municipal law to the in harmony with the international law or treaty obligations
While dealing with the Presidential Order under article 3591 such a construction should be a adopted
as would if possible not bring it in conflict with the above Articles 8 and 9 of UN Charter
It is plain that such a constructional is not only possible it is a also pre eminently 208 reasonable The Presidential orders therefore should be so constructed as not to warrant arbitrary arrest or to bar right to an effective remedy by competent national tribunals for acts violating basic right of personal liberty granted by law
1276 A B 277 D E Corocraft Ltd vs Pan American Airways Inc  Article 51 of the Constitution H H Kesavananda Bharati vs State of Kerala 1973 Supp
SCR I referred to
The argument that suspending the right of a person to move any court for the enforcement of right to life and personal liberty is done under a constitutional provision and therefore it cannot be said that the resulting situation would mean the absence of the Rule of law
cannot stand close scrutiny for it tries to equate illusion of the Rule of Law with the reality of Rule of Law
A state of negation of Rule of Law would not cease to be such a slate because of the tact that such a state of negation of Rule of Law has been brought About by a statute
Absence of Rule of Law would nevertheless be absence of Rule of Law even though it is brought about by a law to repeal all laws
The Rule of Law requires something more the legal principle quod principi placuit legis habet vigorem 277 E H 278 A Bl Freedom under law is not absolute freedom
It has its own limitations in its own interest and can properly be described as regulated freedom
The truth that every man ought to be free has for its other side the complementary and consequential truth that no man can be absolutely free
The need of liberty for each is necessarily qualified and conditioned by the need of liberty for all Liberty in the State or legal liberty
is never the absolute liberty or all but relative and regulated liberty
Rule of law is true antithesis of arbitrariness
The rule of law has come to be regarded as the mark of a free society
Its content is different in different countries
It is however identified with the liberty of he individual
It seeks to maintain a balance between the opposing notions of individual liberty and Public order
1267 C D 268 B C In a long chain of authorities the Supreme Court has laid stress upon the prevalence of the Rule of Law in the country according to which the executive cannot take action prejudicial to the right of an individual without the authority of law
There is no valid reason to depart from the rule laid down in those decisions
1278 E 281 E 303 C D Rai Sahib Ram Jawaya Kapur  Ors vs The State of Punjab State of Madhya Pradesh  Anr
vs Thakur Bharat Singh  Chief Settlement Commissioner Rehabilitation Department Punjab  Ors
vs Om Parkash  Ors
  District Collector of Hyderabad  Ors
vs Ms Ibrahim  Co etc
 Bennett Coleman  Co and Ors
vs Union of India  Shree Meenaksi Mills Ltd vs Union of India  Naraindas Indurkhya vs The State of Madhya Pradesh  Director of Rationing and Distribution vs The Corporation of Calcutta  Ors   Bishan Das  Ors
vs The State of Punjab  Ors   section G Jaisinghani vs Union of India  Ors  United States vs Wunderlick   John Wilkes s case at 2539 and Smt
Indira Nehru Gandhi vs Shri Rai Narain  referred to
According to article 21
no one can be deprived of his right to personal liberty except in accordance with the procedure established by law
Procedure for the exercise of power of depriving a person of his right of personal Liberty necessarily postulates the existence of the substantive power
When article 21 is in force law relating to deprivation of life and personal liberty must provide both for the substantive power as well as the procedure for the exercise of such power
When right to move in court for enforcement of right guaranteed by Art 21 is suspended it would have the effect of dispensing with the necessity of prescribing procedure for the exercise of substantive power to deprive a person of his life and personal liberty it cannot have the effect of permitting an authority to deprive a person of his life or personal liberty without the existence of such substantive power
303 D F 209 The difference in phraseology of the Presidential order dated June 27 1975 and that of the earlier Presidential orders would not however justify the Conclusion that because of the new Presidential order dated rune 27 1975 a detention order need not comply with the requirements of the law providing for preventive detention
Such a detention order would still be liable to be challenged in a court on the ground that it does not comply with the requirement of law For preventive detention if ground for such challenge be permissible in spite of and consistently with the new Presidential order
The effect of the change in phraseology would only be that such of the observation made by his Court fn the context of the language of the earlier Presidential orders cannot now be relied upon
Reliance however can still be placed upon the observations made in various cases which were not linked with the phraseology of the earlier Presidential orders
263 F H Makhan Singh vs Stare of Punjab 1964 4 SCR 797 State of Maharashtra vs Prabhakar Pandurang Sangzgiri  Anr  and Dr Ram Manohar Lohia vs State of Bihar  Ors  referred to
A Presidential order
under article 3591 can suspend during the period of emergency only the right to move any court for enforcement of the Fundamental Rights mentioned in the order
Rights created by statutes being not Fundamental Rights can be enforced during the period of emergency despite the Presidential order
Obligations and liabilities flowing from statutory provisions likewise remain unaffected by the Presidential order
Any redress sought from a court of law on the score of breach of statutory provision would be outside the purview of article 3591 and the Presidential order made thereunder
1303 C Hl Anandan Nambiar  Anr
vs Chief Secretary Govt
Of Madras   410 referred to
Clause 1A of article 359 protects laws and executive actions from any attack on validity on the score of being violation of the Fundamental Rights mentioned in the Presidential order in the same way as article 358 protect the laws and executive actions from being challenged on the ground of being violative of article 19 during the period of emergency
The language of clause IA of It
359 makes it clear that the protection which is afforded by that clause h is to such law or execute action as the State would but for the provisions contained in Part 111 of the Constitution be competent to make or take
The word competent has a significance and it is apparent that despite the Presidential order under article 3591 in the case of executive action the competence of the State to take such action would have to be established
Such competence 
Would however be judged ignoring the restriction placed by the provisions or Part III of tho Constitution
To put it in other words clause IA of article 359 does not dispense with the necessity of competence to make laws
Or take executive action
But it would still be necessary to establish the competence de hors the restrictions of the Fundamental Rights
283 D E Though there is no reference to substantive power in article 21 it would cover both the existence of the substantive power of depriving a person of his life and personal liberty as well as the procedure for the exercise of that power 284 D The suspension of the right to move a court for the enforcement of the right contained in article 21 cannot have the effect of debarring an aggrieved person from approaching the courts with the complaint regarding deprivation of life or personal liberty by an authority on the score that no power has been vested in the authority to deprive a person of life or liberty
The pre supposition of the existence of substantive power to deprive a person of his life or personal liberty in article 21 even though that article only mentions the procedure would not necessarily point to the conclusion that in the event of the suspension of the right to move any court for the enforcement of article 21 the suspension would also dispense with the necessity of the existence of the substantive power The co existence of substantive power and procedure established by law for depriving R person of his life and liberty which is implicit in article 21 would not lead to the result that even if there is suspension of the right regarding 16 833 SCI76
210 procedure suspension would also operate upon the necessity of substantive power
What is true of a proposition need not be true of the converse of that proposition
The suspension of the right to make
any court for the enforcement of the right contained in article 21 may have the effect of dispensing with the necessity of prescribing procedure for the exercise
Of substantive power to deprive a person of his life or personal liberty it can in no case have the effect of permitting an authority to deprive a person of his life or personal liberty without the existence of substantive power
The close bond which is there between the existence of substantive power of depriving a Person of his life or personal liberty and the procedure for the exercise of that power if the right contained in article 21 were in operation would not necessarily hold good if that right were suspended because the removal of compulsion about the prescription of procedure for the exercise of the substantive power would not do away with the compulsion regarding the existence of that power
284 G H 285 A G In considering the effect of Presidential order suspending the right of a person tn move my court for enforcement of right guaranteed by Art 21 the words except according to procedure established by law should not be treated to be synonymous with save by authority of law 
285 D A Presidential order under article 3591 cannot have the effect of suspending the right to enforce rights flowing from statutes nor can it bar access to the courts of persons seeking redresses on he s ore of contravention of statutory provisions
Statutory provisions are enacted to be complied with and it is not permissible to contravene them
Statutory provisions cannot be treated as mere pious exhortations or words of advice which may be adjured or disobeyed with impunity
Nor is compliance with statutory provisions optional or at the sufference of the official concerned
It is the presence of legal sanctions which distinguished positive law from other systems of rules and norms
To be a legal system a set of norms must furnish sanctions for some of its precepts
A legal sanction is usually thought of as a harmful consequence to induce compliance with law
Non complince with statutory provisions entails certain legal consequences
The Presidential order cannot stand in the way of the courts giving effect to those consequences
To put it differently the executive authorities exercising power under a statute have to act in conformity with its provisions and within the limits set out therein
When a statute deals with matters effecting prejudicially the rights of individuals the ambit of the power of the authorities acting under the Statute would be circumscribed by its provisions and it would not the permissible to involve some indefinite general powers of the executive
286 D H Attorney General vs De Keyser s Royal Hotel Ltd  Jaichand Lall Sethia vs State of West Bengal 1966 Supp
SCR 464 Durgadas Shirali V Union of India  ors  and G Sadanandan vs State of Kerala 
 Anr  referred to
Article 226 under which the High Courts can issue writs of habeas corpus is an integral part of the Constitution
No power has been conferred upon any authority in the Constitution for suspending the power of the High Court to issue writs in the nature of habeas corpus during the period of emergency
Such a result cannot be brought about by putting some particular construction on the Presidential order in question
288 B 304 A B Greene vs Secretary of State for Home Affairs  Secretary of State for Home Affairs vs O Brien 609 and Rai Sahib Ram Jawaya Kapur  Ors
vs The State of Punjab  referred to
Article 226 of the Constitution confers power upon the High Courts of issuing appropriate writs in case it is found that the executive orders are not in conformity with the provisions of the Constitution and the laws of the land
Judicial scrutiny of executive orders with a view to ensure that they are not violative of the provisions of the Constitution and the laws of the land being an integral part of our constitutional scheme
it is not permissible to exclude judicial scrutiny except to the extent such exclusion is warranted by the provi 211 sions of the Constitution and the laws made in accordance with those provisions
290 F  There is a clear demarcation of the spheres of function and power in our Constitution
The acceptance of the contention advanced on behalf of the appellants would mean that during the period of emergency the courts would be reduced to the position of being helpless spectators even if glaring and blatant instances of deprivation of Life and personal liberty in contravention of the statute are brought to their notice
It would also mean that whatever it may be the law passed by the legislature in the matter of life and personal liberty of the citizens the executive during the period of emergency would not be bound by it and would be at liberty to ignore and contravene it
It is obvious that the acceptance of the contention would result in a kind of supremacy of the executive over the legislate and judicial organs of the State and thus bring about a constitutional imbalance which perhaps was never in the contemplation of the framers of the Constitution
The fact the the government which controls the executive has to enjoy the confidence so the legislator does not d tract from the above conclusion
The executive under our constitutional scheme is nob merely to enjoy the confidence of the majority in the legislature it is also bound to carry out the legislative as manifested by the statutes passed by the legislature
The Constitution further contemplated that the function of deciding whether the executive has acted in accordance with the legislative intent should be performed by the Courts
290 G H 291 A C No one can call deny the power of the State to assume vast powers of the detention in the interest of the security of the State
It may indeed the necessary to do so to meet the peril acing the nation
The consideration of security of the State must have a primacy and be kept in the forefront compared to which the interests of the individual can only take as secondary piece
The motto has to be who lives if the country dies
Extraordinary powers are always assumed by the Government in all countries in times of emergency because of the extraordinary nature of the emergency
The exercise of the power of detention
it is well settled depends upon the subjective satisfaction of the detaining authority and the courts can neither act as courts of appeal over the decisions of the detaining authority nor can they substitute their own opinion for that of the authority regarding the necessity of detention
There is no antithesis between the power of the State to detain a person without trial under a law or preventive detention and the power of the court to examine the legality of such detention
Tn dealing with an application for a writ of habeas corpus the courts only ensure that the detaining authorities act in accordance with the law of preventive detention
The impact upon the individual of the massive and comprehensive powers of preventive detention with which the administrative officers are armed l has to be cushioned with legal safeguarded against arbitrary deprivation of personal liberty if the premises of the rule of law is not to lose its content and become meaningless
The chances of an innocent person being detained under a law providing for preventive detention on the subjective satisfaction of an administrative authority are much greater compared on the possibility of an innocent person being convicted at trial in a court of law
1291 F H 292 A D E Rex vs Halliday Ex parte Sadiq   272 and Liversidge vs Sir John Anderson  referred to 7 The Presidential order of June 27
1975 did not aspect maintainability of the habeas corpus petitions to question the legality of the detention orders and such petitions could be proceeded with despite that order
293 F Principle in James Commersett s case 1772 State Trials p 1 referred to
A law of preventive detention is not punitive but precautionary and preventive
The power of detention under such law is based on circumstance of suspicion and not on proof of allegation as is required at a regular trial for the commission of an offence
294 F A court cannot go behind the truth of the alleged facts
If The material is germane to the object for which detention is legally permissible and an 212 order
for detention is made don the basis of that material the courts cannot sit as a court of appeal and substitute their own opinion for that of the authority concerned regarding the necessity of detention
295 E F Sharpe vs Wakefield at p 179 and Ross vs Papadopollos on P 33 referred to
Malice in fact is quite a different thing it means an actual malicious intention on the part of the person who has done the wrongful act and it May be in proceedings based on wrongs independent or contract a very material ingredient in the question of whether a valid cause of action can be stated
269 C D Shearer vs Shields Bhut Nath vs State of West Bengal   referred to
In view of the Presidential Order suspending the right of the person to move any court for enforcement of specified Fundamental Rights including the one under article 225 it may with plausibility be argued that the vagueness of grounds of detention would not warrant the quashing of such detention order during the pendency of the Presidential order on the score of violation of article 225
The Presidential order would
however not stand in the way of the infirmity of the vagueness of grounds of detention because of the contravention of section Xl of 
297 E F Every law providing for preventive detention contains certain procedural safeguards
It is imperative that there should be strict compliance with the requirements of those procedural safeguards to sustain the validity of detention
Detention without trial results in serious inroads into personal liberty of an individual
In such case it is essential to ensure
that there is no deviation from the procedural safeguards provided by the statute
In the matter of even a criminal trial
it is procedure that spells out much of the difference between the rule of law and the rule by whim and caprice
The need for strict adherence tostrict procedural safeguards is much greater when we are dealing with preventive detention which postulates detention of a person even though he is not found guilty of the commission of an offence
To condone or allow relaxation in the matter of compliance with procedural requirements would necessarily have the effect of practically doing away with even the slender safeguards is provide by the legislature against the arbitrary use of the provisions relating to prevention detention
The history of personal Liberty is largely the history of insistence upon procedure
It would
therefore be wholly inappropriate to countenance and laxity in the mutter of strict compliance with procedural requirements prescribed for preventive detention
297 G H 9s A B Once substantial disquieting doubt are raised by the detenue in the mind of the court regarding the validity or his detention
it would be the bounden duty of the State to dispel those doubts by placing sufficient material before the court with a view to satisfy it about the validity of the detention by filing a good return
299 C D Kishori Mohan vs State of West Bengal AIR 1974 SC 1749 king Emperor vs Sibnath Banerji 71 IA 241 and G Sadanandan vs State of Kerala  Anr  referred to
His Lordship did not express any opinion on the question of the validity of s 16A9 of the 
 301 A The appropriate occasion for the High Court to go into the constitutional validity of section 16A9 and external all judicial scrutiny in writs of habeas corpus would be when the State or a detenu whoever is aggrieved upon comes in appeal against the final judgments in any of the petitions pending in the High courts
The whole matter would then be at large before the Supreme Court and it would not be inhibited by procedural or other constraints
It would not be permissible or proper for the Supreme Court to short circuit the whole 213 thing and decide the matter by by passing the High Courts who are seized of the matter
302 F G and 304 D E Section 18 of the would not detract from the view that article 21 is not the sole repository of the right to personal liberty
The principle that no one shall be deprived of his life and personal liberty without the authority of law is also an essential facet of the Rule of law
Section 18 therefore cannot be of much assistance
The view that section 18 would have the effect of enlarging the ambit of the power of the detaining authority for the purpose of passing an order for detention is not correct
There has been no amendment of section 3 of the Act
274 D F Section 18 cannot be construed to mean that even if an order for detention is made on grounds not warranted by section 3 of the Act it shall be taken to be an order under section 3 of the Act
Apart from the fact that such an inference is not permissible on the language of section 18 the acceptance of this view would also render the validity of section 18 open to question on the ground that it suffers from the vice of excessive delegation of legislative power
The legislature is bound to lay down the legislative policy by prescribing the circumstances in which an order for detention can be made
It is not permissible for the legislature to confer a power of detention without laying down guidelines and prescribing the circumstances in which such order should be made
To do so would be tantamount to abdication of Legislation function for in such an event it would be open to the detaining authority to detain a person on any ground whatsoever
274 F H 275 A This Court in appeal by the State enlarge the area of the Unfavourable decision qua the state and make its position worse compared to what it was before the filing of the appeal
Procedural propriety in matters relating to appeals forbids such a course
The question of event of judicial scrutiny in the light of section 16A should be gone into when the whole matter is at large before this court and this court is not inhibited by procedural and other constraints from going into certain aspects which have a vital bearing
It is primarily for the High Courts before which the matters are pending to decide the question of the of judicial scrutiny in the light of section 16A9 as amended by Act
14 of 1976
A course which has the effect of bypassing the High Courts and making this Court in appeals from orders on preliminary objection to decide the matter even before the matter has been considered by the High Court in the light of section 16A9 as amended by Act 14 of 1976 should be avoided
301 F H There is no sufficient ground to interfere with the view taken by all the nine High Courts which went into the matter that the Presidential order dated June 27 1975 did not affect the maintainability of the habeas corpus petitions to question the legality of the detention orders
304 C The principles which should be followed by the courts in dealing with petitions for writs of habeas corpus to challenge the legality of detention are well established
1304 D Unanimity obtained without sacrifice of conviction commends the decision to public confidence
Unanimity which is merely formal and which is recorded at the expense of strong conflicting views is not desirable in a court of last resort
304 E A dissent in a court of last resort is an appeal to the brooding spirit of the law to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting Judge believes the court have been betrayed
304 G Prophets with Honor by Alan Barth 1974 Ed
p 3 6
referred to
Observation Judges are not there simply to decide cases but to decide them as they think they should be decided and while it may be regrettable that they cannot always agree it is better that their independence should be maintained and recognise than that unanimity should be secured through its sacrifice