Case: Mohd. Yaqub &amp; Others Vs. State of Jammu &amp; Kashmir

It is enough to set out the facts in one of the petitions (No. 142 of l967), for the facts in other petitions are almost similar. The petitioner was arrested on November 11, 1966 and detained under an order passed under R. 30 (1) (b) of the Defence of India Rules, 1962 (hereinafter referred to as the Rules). It appears that though the order was reviewed after the period of six months, no opportunity was given to the petitioner to represent his case before the reviewing authority. In consequence the detention of the petitioner became illegal after the first period of six months in view of the judgment of this Court in P. L. Lakhanpal v. Union of India AIR 1967 SC 1507  . The State Government realising this defect, cancelled the order dated November 11, 1966 on August 3, 1967, and on the same day a fresh order of detention was passed and it is this order which is being challenged before us. It is not in dispute that in view of the judgment of this Court in Jagdev Singh v. State of Jammu and Kashmir, W. P. No. 69 of 1967, D/- 14-8-1967: (AIR 1968 SC 327  ), it was open to the State Government, in view of the formal defect in making the review, to pass a fresh order of detention after revoking the earlier order, which in any case became ineffective after the first six months, if the circumstances which led to the detention originally still continued.

Court's reasoning:
6. It will be seen from the terms of Article 359 that it gives categorical powers to the President during the period when a Proclamation of Emergency is in operation to suspend the enforcement of any of the fundamental rights conferred by Part III. It is for the President to decide the enforcement of which of the fundamental rights should be suspended during the operation of the Proclamation of Emergency.There is nothing in Article 359 which in any way limits the power of the President to suspend the enforcement of any of the fundamental rights conferred by Part III. It is to our mind quite clear that the President has the power to suspend the enforcement of way of the fundamental rights conferred by Part III and there is nothing thereunder which makes any distinction between one fundamental right or another. As Article 359 stands, it seems to us, it clearly envisages that once a Proclamation of Emergency has been issued, the security of India or any part of the territory thereof may require that the President should suspend the enforcement of any of the fundamental rights conferred by Part III. There is in our opinion no scope for inquiry into the question whether the fundamental right the enforcement of which the President has suspended under Article 359 has anything to do with the security of India which is threatened whether by war or external aggression or internal disturbance for Article 359 posits that it may be necessary for the President to suspend any of the fundamental rights in Part III for the sake of the security of India. There is thus a basic assumption in Article 359 that it may be necessary for the President to suspend the enforcement of any of the fundamental rights conferred by Part III in the interest of the security of India.If he considers that necessary, it is unnecessary in the face of that basic assumption to inquire whether enforcement of a particular fundamental right suspended by the President has anything to do with the security of India, for that is implicit in Article 359.It follows therefore that it is open to the President to suspend the enforcement of any of the fundamental rights conferred by Part III by an order under Article 359 and this Article shows that wherever such suspension is made it is in the interest of the security of India and no further proof of it ismay assume for present purposes that the President is comprised within the word "State" in Article 12. We may also assume that the order made by the President under Article 359 is a law in its widest sense.The question however is whether such an order can be considered to be a law for the purpose of Article 13 (2) and tested thereunder. Article 13 (2) and Article 359 being parts of the same Constitution stand on an equal footing and the two provisions have to be read harmoniously in order that the intention behind Article 359 is carried out and it is not destroyed altogether by Article 13 (2). It follows that though an order under Article 359 may be assumed to be law in its widest sense, it cannot be law within the meaning of Article 13 (2), for if that were so, Article 359 would be made nugatory.The Constitution through Article 359 says that the President may suspend the enforcement of any of the fundamental rights in Part III where a Proclamation of Emergency is in force and that means that during the period of Emergency the fundamental rights, enforcement of which is suspended, cannot be enforced.If the order is a law within the meaning of Article 13 (2), the result would be that though the order says that the enforcement of a particular fundamental right is suspended during the period of Emergency the order can still be tested with the aid of Article 13 (2) on the anvil of the same fundamental right, the enforcement of which it suspends. That would in our opinion result in making Article 359 completely nugatory, for then a declaration made thereunder that the enforcement of certain fundamental rights is suspended during the period of Emergency would have no meaning whatsoever. Therefore, applying the principle of harmonious construction we are of opinion that an order passed under Article 359 cannot be law for the purpose of Article 13 (2), assuming it to be law in its widest sense. It follows therefore that an order under Article 359 derives its force from Article 359 itself and takes affect in accordance with its tenor and cannot be affected by Article 18 (2) and cannot be tested under any of the provisions of Part III of the Constitution which it suspends.We must say with greatest respect that it is rather difficult to understand how an order under Article 359 which suspends the enforcement of a fundamental right can be tested under that very fundamental right It is true that there is a distinction between Article 358 and Article 359 (1). Article 358 by its own force suspends the fundamental rights guaranteed by Article 19; Article 359 (1) on the other hand does not suspend way fundamental right of its own force but gives power to the President to suspend the enforcement of any fundamental rights during the period of Emergency. But that cannot mean that an order passed under Article 359 (1) suspending the enforcement of a particular fundamental right has still to be tested under the very fundamental right which it suspends. That would in our opinion be arguing in a circle and make Article 359 completely nugatory. It seems that the majority in Ghulam Sarwars case, 1967-2 SCR 271   = (AIR 1967 SC 1335  ) was also conscious of the fact that the reasoning on which it came to the conclusion that an order made under Article 359 could be tested under Article 14, though it suspended that Article, was open to the criticism that it was an argument in a circle. The argument was however met by making a distinction between the order and the effect of that order and it was observed that if the order did not violate Article 14 it could validly take away the right to enfore the fundamental right under Article 14. With greatest respect it is difficult to appreciate this reasoning and the distinction on which it is based.It seems to us that if Article 359 is to have any meaning at all and is not to be wiped out from the Constitution an order passed thereunder suspending a fundamental right cannot possibly be tested under that very fundamental right which it suspends. If that were permissible no order under Article 359 could really be passed. If Article 359 is not to be rendered nugatory, it must be held that an order passed thereunder cannot be tested under the very fundamental right the enforcement of which it suspends.We must therefore respectfully differ from the view taken in Ghulam Sarwars case 1967-2 SCR 271  : (AIR 1967 SC 1335  ), and hold that an order passed under Article 359 (1) cannot he tested with the aid of Art 13 (2) under that very fundamental right the enforcement of which it suspends. There is therefore no force in the first point raised on behalf of the petitioners.10. We also see no force in the second point raised by the petitioners. As we have already indicated Article 359 envisages that an order passed thereunder for suspension of the enforcement of a particular fundamental right is for the sake of security of India. It is therefore not necessary to enquire whether there is any nexus between a particular fundamental right suspended and the security of India. Article 359 itself posits that it may be necessary in the interest of the security of India to pass an order suspending the enforcement of any fundamental right thereunder. This is clear from the fact that Article 359 (1) provides for the suspension of the enforcement of the fundamental rights in Part III of the Constitution only during the period of Emergency meaning thereby that suspension of the enforcement of any of the fundamental rights which the President considers necessary is for the security of India. We fail to see why only fundamental rights under Article 22 or under Article 31 (2) can he suspended under Article 359; Article 359 clearly shows that any fundamental right in Part III can be suspended during an Emergency and we cannot limit Article 359 in the face of the unambiguous and express words thereof and say that only the enforcement of fundamental rights under Articles 22 and 31 (2) can he suspended thereunder. It may be that prima facie these two fundamental rights appear to have a clearer nexus with security of India: but it does not follow that other fundamental rights may not in an Emergency have such a nexus. In any case Article 359 itself proceeds on the basis that the suspension of the enforcement of all or any of the fundamental rights is for the sake of security of India and so gives the power to the President to suspend such enforcement if he considers it necessary for that purpose. The second contention raised on behalf of the petitioners must also be rejected.11. As to the third contention, we have already indicated that an order passed under Article 359 (1) suspending the enforcement of 8 Particular fundamental right cannot be tested under that very fundamental right. We cannot see how if the order under Article 359 suspends Article 14 its validity can still be tested under that very Article.We have already expressed our respectful dissent from the view taken in Ghulam Sarwars case, 1967-2 SCR 271   = (AIR 1967 SC 1335  ) and must reject this contention.12. As the enforcement of the fundamental right under Article 14 was suspended by the Presidents order under Article 359, no question of that order being bad under that Article can arise even if we assume that the provisions for detention under the Act and the Rules are more stringent than the provisions for detention under the Preventive Detention Act. The fourth contention alsocannot understand how any provision could have been made in the Act and Rules to this effect. Such a provision in the Act or the Rules would be clearly unconstitutional. It is only because Article 359 (1) provides that the President may suspend the enforcement of a particular fundamental right that it is possible for the enforcement of any fundamental right to be suspended during the Emergency.What the President has provided in the present case is that the enforcement of fundamental rights under Articles 14, 21 and 22 would be suspended if any person has been deprived of such right under the Defence of India Ordinance (later replaced by the Act) or the Rules or orders made thereunder. It is necessary to emphasise that the Presidents order speaks of suspension under the Ordinance (later replaced by the Act) or the Rules or orders made thereunder.It does not say that the enforcement of such right is suspended if any person is deprived of it by the Ordinance, the Rules or orders made thereunder. Therefore it was not necessary that there should be any express provision in the Act or the Rules suspending the enforcement of fundamental rights under Articles 14, 21 and 22. The clear intendment of the Presidents order is that if any fundamental right of any person under Articles 14, 21 and 22 was invaded by any action taken under the Ordinance (later replaced by the Act), or any rule or order thereunder, that action could not be tested on the anvil of those fundamental rights.It was therefore not necessary to make any express provision in the Act or the Rules for the suspension of the enforcement of the fundamental rights under Articles 14, 21 and 22. The fifth contention must alsohave not been able to understand this argument at all.If the Presidents order is validly made-as we hold it to be-and if it suspends Article 22 as it does-we fail to see how clause (5) continues, for it is only a part of Article 22, which has been suspended. There is no question therefore of furnishing any ground under Article 22 (5) to the detenu if the detention is under the Act or the Rules, for the entire Article 22 has been suspended.The argument under this head is also rejected.15. This brings us to the subsidiary points raised on behalf of the Petitioners. It is first said that the fresh order was not communicated to the detenus. This has been denied on behalf of the State. We see no reason why the fresh order which was passed on the same day on which the earlier order was cancelled would not have been communicated. Nothing has been shown to us to disbelieve the statement on behalf of the State that the fresh order was communicated in each case and therefore any argument based on it not being communicated mustis enough to say that Article 166 does not apply to the state of Jammu and Kashmir. We have to look to the Constitution of Jammu and Kashmir to see whether the form of the order is in accordance therewith. It is clear that the order is in the form required by S. 45 of the Constitution of Jammu and Kashmir The presumption must therefore be made that it was passed validly unless the petitioners can show that it was not passed as required by law. No attempt has been made on behalf of the petitioners to show that. The contention on this head must therefore also be rejected.17. Lastly, It is urged that the orders in these cases were male fide. This has been denied on behalf of the State. No grounds have been shown which may lead us to the conclusion that the fresh orders which were passed were male fide. The necessity for fresh orders arose because the review was not made in accordance with the manner indicated by this Court in Lakhanpals case, AIR 1967 SC 1507  . The fresh order that was made was on the same facts and must in the circumstances be held to be valid in view of the judgment of this Court in Jagdev Singhs case, W. P. No. of 1967, D/- 14-8-1967 = (AIR 1968 SC 327  ).