Case ID: 101

Judgment:
iminal Appeal No. 80 of 1963. Appeals by special leave from the judgment and order dated March 26	 1963	 of the Punjab High Court in Criminal Mis. No. 186 of 1963. Criminal Appeals Nos. 86 to 93 of 1963. Appeal by special leave from the judgment and order dated February 21	 1963 of the Punjab High Court in Criminal Misc. No. 155	 102	 108	 105	 104	 101 and 107 of 1963 and judgment and order dated February 1963 of the same High Court in Criminal Misc. No. 99 of 1963. Criminal Appeals Nos. 109 to 111 of 1963. Appeals from the judgment and order dated May 31	 1963 of the Maharashtra High Court in Criminal Applications Nos. 217	 218 and 114 of 1963. Criminal Appeals Nos. 114 to 126 of 1963. Appeals from the judgment and order dated May 31	 1963 of the Maharashtra High Court in Criminal Applications Nos. 271	 265	 270	 267	 219	 220	 269	 264	 263	 266 and 273 of 1963. Criminal Appeal No. 65 of 1963. Appeal by special leave from the judgment and order dated April 3	 1963	 of the Maharashtra High Court (Nagpur Bench) in Criminal Application No. 11 of 1963. M. C. Setalvad	 N. C. Chatterjee	 A. V. Viswanatha Sastri	 section Mohan Kumaramangalam	 C. B. Agarwala	 Sarjoo Prasad	 D. R. Prem	 A. section R. Chari	 section G. Patwardhan	 W. section Barlingay	 Etharajalu Naidu	 Veda Vyas	 Raghubir Singh	 K. T . Sule	 Asif Ansari	 Hardayal Hardy	 Bawa Shiv Charan Singh	 section N. Mukherjee	 Durgabhai Deshmukh	 M. section K. Sastri	 G. B. Rai	 Ganpat Rai	 D. N. Mukherjee	 A. N. Sinha	 Udayaratnam	 K. V. Raghnatha Reddy	 Janardhan Sharma	 K. R. Choudhury	 B. P. Maheshwari	 I. B. Goyal	 I. K. Nag	 Y. Kumar	 Hardev Singh		 M. I. Khowaja	 section section Shukla	 K. K. lain	 Bishambar Lal Khanna	 section Murthi	 P. K. Chakravarti	 P. K. Chatterjee	 A. George Pudussary	 Girish Chandra Mathur	 Udai Pratap 804 Singh	Yogeshwar Prasad	M. R. Krishna Pillai	 B. D.Sharma	 K. P. Gupta	 T. section Venkataraman	 M. Veerappa	T.R.Ramachandra	 R. C. Prasad	 Santosh Chatterjee	N.N. Keshwani	 K. Jayaram	 R. Ganapathy Iyer	 Thyagarajan	 R. Vasudeva Pillai	 R. V. section Mani	 section C. Majumdar	 Shaukat Hussain	 K. Baldev Mehta	 Mohan Behari Lal	 Sadhu Singh	 V. G. Row	 section N. Kakkar	 section K. Kapur	 Parthasarathy	 Shanti Swarup Bhatnagar	 K. L. Mehta	 Satish Mehta	 Brij Kishore Prasad	 Ali Ahmad	 V. A. Syeid Muhammad	 Narayanarayan Gooptu	 Tapesh Roy	 Madhan Bhaittia	 Ajit Singh Banis and Brij Raj Kishore	 J. B. Dada chanji O. C. Mathur	 Ravinder Narain	 D. P. Singh	 M. K. Ramamurthi	 R. K. Garg	 and section C. Agarwal	 for the appellant (in Cr. A. No. 80 of 1963). C. K. Daphtary	 Attorney General	 L. K. Kaushal	 Deputy Advocate General	 Punjab	 D. D. Chaudhuri	 R. N. Sachthey and R. H. Dhebar	 for the respondent (in Cr. A. No. 80 of 1963). A. section R. Chari	 D. P. Singh	 M. K. Ramamurthi	 R. K. Garg and section C. Agarwal for the appellant (in Cr. A. No. 86 of 1963). Hardev Singh and Y. Kumar	 for the appellants (in Cr. A. Nos. 87 to 93 of 1963). L. D. Kaushal	 Deputy Advocate General	 Punjab	 D.D.Chaudhri	 R. N. Sachthey and R. H. Dhebar	 for the respondent (in Cr. A. Nos. 86 to 93 of 1963). A. section R. Chari	 0. P. Malhotra	 B. Parthasarathy	 J. B. Dadachanji	 0. C. Mathur and Ravinder Narain	 for the appellant (in Cr. A. No. 65 of 1963). N. C. Chatterjee	 and Janardan Sharma	 for the appellant (in Cr. A. No. 109 of 1963). K. T. Sule	 Jitendra Sharma and Janardan Sharma	 for the appellants (in Cr. A. Nos. 111 and 114 to 126 of 1963) and for the Detenue Interveners Nos. 12	 14	 16	 18 and 37). C. K. Daphtary	 Attorney General	 N. section Bindra	 B. R. G. K. Achar	 R. N. Sachthey and R. H. Dhebar	 for the respondents (in Cr. A. No. 65	 109 to 111 and 114 to 126/1963). C. K. Daphtary	 Attorney General	 H. N. Sanyal	 Solicitor General	 section V. Gupte	 Additional Solicitor General	 R.N.Sachthey and R. H. Dhebar	 for intervener No. 1 Naunit Lal	 for intervener No. 1. B. Sen and P. K. Bose	 for intervener No. 3. section P. Varma	 for intervener No. 4. M. Adhikari	 Advocate General	 Madhya Pradesh and I.N.Shroff	 for intervener No. 5. A. Ranganadham Chetty and A. F. Rangam	 for intervener No. 6. G. C. Kasliwal	 Advocate General	 Rajasthan	 R. H.Dhebar	 R. N. Sachthey	 for intervener No. 7. C. P. Lal	 for intervener No. 8. N. C. Chatterjee	 Narayan Gooptu	 Tapesh Roy	 D. P.Singh	 M. K. Ramamurthi	 R. K. Garg and section C. Agarwal	 for intervener No. 69. A. section R. Chari	 Narayan Gooptu	 Tapesh Roy	 D. P. Singh	 M. K. Ramamurthi	 R. K. Garg and section C. Agarwal	 for intervener No. 70. A. section Peerbhoy A. Desai	 M. Rajagopalan and K. R. Choudhari	 for interveners Nos. 79 and 80. September 2	 1963. The judgment of P. B. Gajendragadkar	 A. K. Sarkar	 K. N. Wanchoo	 M. Hidayatullah	B. Gajendragadkar	 J. K. Subba Rao	 J. delivered a dissenting Opinion. GAJENDRAGADKAR	 J. This group of 26 criminal appeals has been placed for hearing and disposal before a special Constitutional Bench	 because the appeals constituting the group raise two common important questions of Constitutional law. Nine of these appeals have been preferred against the decisions of the Punjab High Court	 whereas seventeen have been preferred against the decisions of the Bombay High Court. All the appellants are detenues who have been detained respectively by the Punjab and the Maharashtra State Governments under Rule 30(1)(b) of the Defence of India Rules (hereinafter called the Rules) made by the Central Government in exercise of the powers conferred on it by section 3 of the Defence of India Ordinance	 1962 (No. 4 of 1962) (hereinafter called the Ordinance). They applied to the Punjab and the Bombay High Courts respectively under section 491 (1) (b) of the Code of Criminal Procedure and alleged that they had been improperly and illegally detained. Their contention was that section 3(2)(15)(1) and section 40 of the Defence 806 of India Act	 1962 (No. 51 of 1962) (hereinafter called 'the Act ') and Rule 36(1)(b) under which they have been detained are constitutionally invalid	 because they contravene their fundamental rights under Articles 14	 21 and 22(4)	 (5) & (7) of the Constitution	 and so	 they claimed that an order should be passed in their favour directing the respective State Governments to set them at liberty. These petitions have been dismissed on the ground that the Presidential Order which has been issued under article 359 of the Constitution creates a bar which precludes them from moving the High Court under section 491 (1) (b) Cr. That is how the decisions of the two High Courts under appeal raise two common questions of considerable importance. The first question is : what is the true scope and effect of the Presidential Order which has been issued under article 359 (1) ? The answer to this question would depend upon a fair and reasonable construction of article 359(1) itself. The second question is : does the bar created by the Presidential Order issued under article 359(1) operate in respect of applications made by detenues under section 491 (1) (b) of the Code? The answer to this question would depend upon the determination of the true character of the proceedings which the detenues have taken under section 491(1)(b)	 considered in the light of the effect of the Presidential Order issued under article 359(1). Both the Punjab and the Bombay High Courts have held against the appellants. Meanwhile	 when similar petitions were made before the Allahabad High Court in Criminal Cases Nos. 1618	 1759 and 1872 of 1963 Sher Singh Negi vs District Magistrate	 Kanpur & Anr.	 the said High Court took a contrary view and directed the release of the detenues who had moved it under section 491 (1) (b) of the Code. It is because the questions raised are important and the answers given by the different High Courts have disclosed a sharp difference of opinion that a Special Bench has been constituted to deal with these appeals. If the two principal questions are answered in favour of the detenues	 a third question would arise and that relates to the validity of the impugned sections of the Act and the relevant statutory Rules. On the 8th September	 1962	 the Chinese aggressively attacked the northern border of India and that constituted a threat to the security of India. That is why on 807 the 26th October	 1962	 the President issued a Proclamation under article 352 of the Constitution. This Proclamation declared	 that a grave emergency existed whereby the security of India was threatened by external aggression. On the same day	 the Ordinance was promulgated by the President. This Ordinance was amended by Ordinance No. 6 of 1962 promulgated on November 3	 1962. On this day	 the President issued the Order under article 359(1)	 suspending the rights of citizens to move any Court for the enforcement of the rights conferred by articles 21 and 22 of the Constitution for the period during which the proclamation of emergency issued on October 26	 1962 would be in force. On November 6	 1962	 the rules framed by the Central Government were published. Then followed an amendment of the Presidential Order on November 11 1962. By this amendment	 for the words and figures "article 21" the words and figures "articles 14 and 21" were substituted. On December	 6	 1962	 Rule 30 as originally framed was amended and Rule 30 A added. Last came the Act on December 12 1962. Section 48(1) of the Act has provided for the repeal of the Ordinances Nos. 4 and 6 of 1962. Section 48(2) provides that notwithstanding such repeal	 any rules made	 anything done or any action taken under the aforesaid two Ordinances shall be deemed to have been made	 done or taken under this Act as if this Act had commenced on October 26	 1962. That is how the Rules made under the Ordinance continued to be the Rules under the Act	 and it is under Rule 30(1) (b) that the appellants have been detained. Before dealing with the points which have been raised for our decision in the present appeals	 it is necessary to indicate briefly at the outset the general argument which has been urged before us by Mr. Setalvad on behalf of the appellants	 and the learned Attorney General on the other side. article 359(1.) which falls to be construed	 occurs in Part XVIII of the Constitution which makes emergency provisions. Whenever the security of India or any part of the territory of India is threatened whether by war or by external aggression or internal disturbance	 the President may	 under article 352	 by proclamation	 make a declaration to 	hat effect. Articles 353 to 360 which occur in this Part thus constitute emergency provisions. The learned 808 Attorney General contends that in construing an emergency provision like article 359(1)	 we must bear in mind the fact that the said Article is intended to deal with a situation which has posed a threat to the security of India	 and so	 fundamental rights guaranteed by Part III which are un doubtedly of vital importance to the democratic way of life guaranteed by the Constitution have to be regulated during an emergency	 because the very security of the nation is exposed to serious jeopardy. The security of the nation on such a solemn occasion must have precedence over the liberty of the individual citizens	 and so	 it is urged that if article 359 is capable of two constructions	 one in favour of the fundamental rights of the citizens	 and the other in favour of the grant of power to the President to control those rights	 the Court should lean in favour of the grant rather than in favour of the individual citizen 's fundamental rights. In support of this argument	 the learned Attorney General has relied on two decisions of the House of Lords. In The King (At the Prosecution of Arthur Zadig) vs Halliday	(1) Lord Finlay L. C. who was called upon to construe Regulation 14B of the Defence of the Realm (Consolidation) Regulations Act	 1914	 noticed the argument that if the Legislature had intended to interfere with personal liberty	 it would have provided	 as on previous occasions of national danger	 for suspension of the rights of the subject as to a writ of habeas corpus	 and rejected it with the observations that the Legislature bad selected another war of achieving the same purposes	 probably milder as well as more effectual than those adopted on the occasion of previous wars. He added that the suggested rule as to construing penal statutes and the provision as to trial of British subjects by jury made by the Defence of the Realm Act	 1915	 have no relevance in dealing with an executive measure by way of preventing a public danger. The majority decision of the House of Lords in Liversidge vs Sir John Anderson (2 ) has also been relied upon by the learned Attorney General. In that case	 the House or Lords had to consider the true scope and effect of Regulation 18B of the Defence (General) Regulations	 1939. (1) ; 	 270. (2) ; 809 Viscount Maugham in I rejecting the argument of the detenu that the liberty of the subject was involved and that the legislation dealing with the liberty of the subject must be construed	 if possible	 in favour of the subject and against the Crown	 quoted with approval the language of Lord Finlay	 L. C.	 in the case of Rex vs Halliday(1). Lord Macmillan who took the same view observed that it is right so to interpret emergency legislation as to promote rather than to defeat its efficacy for the defence of the realm. That is in accordance with a general rule applicable to the interpretation of all statutes or statutory regulations in peace time as well as in war time. Lord Wright and Lord Romer adopted the same approach. The Attorney General relies on the fact that this approach has also been adopted by Gwyer	 C. J.	 in Keshav Talpade vs The King Emperor(2). In making his contention in regard to the proper approach. which the Court should adopt in construing article 359	 the learned Attorney General no doubt contended that the question about the approach would arise only if two constructions are reasonably possible. According to him	 article 359 was capable of only one construction and that is the construction which the High Courts of Punjab and Bombay have accepted. On the other hand	 Mr. Setalvad has argued that article 359 is not an emergency legislation properly so called and on the merits	 he has strongly resisted the suggestion made by the learned Attorney General that if two reasonable constructions are possible	 we should adopt that which is in favour of the grant of power to the President and not in favour of the citizens fundamental rights. He has relied on the minority speech of Lord Atkin in the case of Liversidge(3) and has argued that the view taken by Lord Atkin should be preferred to the majority view which the House of Lords adopted in that case. "In this country"	 observed Lord Atkin	 "amid the clash of arms	 the laws are not silent. They maybe changed	 but they speak the same language in war as in peace. It has always been one of the pillars of freedom	 one of the principles of liberty for which on recent authority we are now fighting	 that the judges are no respecters of persons and stand between (1) ; 	 270. (3) ; (2) 	 63. 52 2 section C. lndia/64 810 the subject and any attempted encroachments on his liberty by the executive	 alert to see that any coercive action is justified in law. In this case	 I have listened to arguments which might have been addressed acceptably to the Court of King 's Bench in the time of Charles I." Realising that he was in a minority	 Lord Atkin added that he protested	 even if he did it alone	 against a strained construction put on words with the effect of giving ail uncontrolled power of imprisonment to the Minister. In this connection	 Mr. Setalvad referred to two subsequent decisions of the Privy Council in which the view taken by Lord Atkin has been accepted	 vide Nakkuda Ali vs M. F. De section layaratne(1)	 and King Emperor vs Vimalabai Deshpande(2). In the former case	 Lord Radcliffe observed that indeed	 it would be a very unfortunate thing if the decision of Liversidge 's case came to be regarded as laying down any general rule as to the construction of such phrases when they appear in statutory enactments	 and he added that the said decision is an authority for the proposition that the words "if A. B. has reasonable cause to believe" are capable of meaning "if A. B. honestly thinks that he has reasonable cause to believe" and that in the context and attendant circumstances of Defence Regulation 18B they did in fact mean just that. In distinguishing the said decision	 Lord Radcliffe made the somewhat significant comment that the elaborate consideration which the majority of the House gave to the context and circumstances before adopting that construction itself shows that there is no general principle that such words are to be so understood. Mr. Setalvad has also invited our attention to the fact that the majority decision of the House of Lords in Liversidge(3) has not received the approval from jurists	 (vide Maxwell on Interpretation of Statutes p. 276	 footnote 54	 Craies on Statue Law p. 309	 and Friedmann	 Law in a Changing Society p. 37.) Like the Attorney General	 Mr. Setalvad also urged that the stage to choose between two rival constructions would not arise in the present appeals because	 according to him	 the construction for which he contended was the only reasonable construction of article 359. (1) 	 76. (2) 73 I.A. 144. (3) ; 811 In our opinion	 it is unnecessary to decide the merits of the rival contentions urged before us in regard to the rule of construction and the approach which the Court should adopt in construing article 359. It is common ground that the question of approach would become relevant and material only if we are satisfied that article 359 is reasonably capable of two alternative constructions. As we will presently point out	 after hearing counsel on both sides	 we have reached the conclusion that article 359 is reasonably 	capable of only one construction and that is the construction which has been put on it by the Punjab and Bombay High Courts. That is why we are relieved of the task of dealing with the merits of the controversy between the parties on this point. Let us then revert to the question of construing article 359. In doing so	 it may be relevant and somewhat useful to compare and contrast the provisions of Articles 358 and 359. Indeed	 both Mr. Setalvad and the learned Attorney General contended that article 359 should be interpreted in the light of the background supplied by the comparative examination of the respective provisions contained in articles 358 and 359 (1) & (2). The said two Articles read as under : "358. While a Proclamation of Emergency is in operation	 nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take	 but any law so made shall	 to the extent of the competency	 cease to have effect as soon as the Proclamation ceases to operate	 except as respects things done or omitted to be done before the law so ceases to have effect 359 (1) Where a Proclamation of Emergency is in operation	 the President may by order declare that the right to move any Court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period a may be specified in the order. 812 (2)Any order made as aforsesaid may extend to the whole or any part of the territory of India. " It would be noticed that as soon as a Proclamation of Emergency has been issued under article 352 and so long as it lasts	 article 19 is suspended and the power of the legis latures as well as the executive is to that extent made wider. The suspension of article 19 during the pendency of the Proclamation of emergency removes the fetters created on the legislative and executive powers by article 19 and if the legislatures make laws or the executive commits acts which are inconsistent with the rights guaranteed by article 19	 their validity is not open to challenge either during the 'continuance of the emergency or even thereafter. As soon as the Proclamation ceases to operate	 the legislative enactments passed and the executive actions taken during the course of the said emergency shall be inoperative to the extent to which they conflict with the rights guaranteed under article 19 because as soon as the emergency is lifted	 article 19 which was suspended during the emergency is automatically revived and begins to operate. Article 358	 however	 makes it clear that things done or omitted to be done during the emergency cannot be challenged even after the emergency is over In other words	 the suspension of article 19 is complete during the period in question and legislative and executive action which contravenes article 19 cannot be questioned even after the emergency is over. Article 359	 on the other hand	 does not purport expressly to suspend any of the fundamental rights. It authorises the President to issue an order declaring that the right to move any court for enforcement of such of the rights in Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. What the Presidential Order purports to do by virtue of the power conferred on 'the President by article 359(1) is to bar the remedy of the citizens to move any court for the enforcement of the specified rights. The rights are not expressly suspended	 but the citizen is deprived of his right to move any court for their enforcement. That is one important 813 distinction between the provisions of article 358 and article 359(1). Before proceeding further	 we may at this stage	 in parenthesis	 observe that there has been some argument before us on the question as to whether the fundamental rights specified in the Presidential Order issued under article 359 are even theoretically alive during the period specified in the said Order. The learned Attorney General has contended that the suspension of the citizens ' right to move any court for the enforcement of the said rights	 in law	 amounts to the suspension of the said rights themselves for the said period. We do not propose 	to decide this question in the present appeals. We will assume in favour of the appellants that the said rights arc	 in theory	 alive and it is on that assumption that we 'will deal with the other points raised in the present appeals. The other distinction lies in the fact that the suspension of article 19 for which article 358 provides continues so long as the Proclamation of Emergency is in operation	 whereas the suspension of the right to move any court which the Presidential Order under article 359(1) brings about can last either for the period of the Proclamation or for a shorter period if so specified by the Order. It would be noticed that the Presidential Order cannot widen the authority of the legislatures or the executive; it merely suspends the rights to move any court to obtain a relief on the ground that the rights conferred by Part III have been contravened if the said rights are specified in the Order. The inevitable consequence of this position is that as soon as the Order ceases to be operative	 the infringement of the rights made either by the legislative enactment or by executive action can perhaps be challenged by	 a citizen in a court of law and the same may have to be tried on the merits on the basis that the rights alleged to have been infringed were in operation even during the pendency of the Presidential Order. If at the expiration .of the Presidential Order	 Parliament passes any legislation to protect executive action taken during the pendency	 of the Presidential Order and afford indemnity to the executive in that behalf	 the validity and the effect of such legislative action may have to be carefully scrutinised. 814 Since the object of article 359(1) is to suspend the rights of the citizens to move any court	 the consequence of the Presidential Order may be that any proceeding which may be pending at the date of the Order remains suspended during the time that the Order is in operation and may be revived when the said Order ceases to be operative; and fresh proceedings cannot be taken by a citizen after the Order has been issued	 because the Order takes away the right to move any court and during the operation of the Order	 the said right cannot be exercised by instituting a fresh proceeding contrary to the Order. If a fresh proceeding failing within the mischief of article 359(1) and the Presidential Order issued under it is instituted after the Order has been issued	 it will have to be dismissed as being incompetent. In other words	 article 359(1) and the Presidential Order issued under it may constitute a sort of moratorium or a blanket ban against the institution or continuance of any legal action subject to two important conditions. The first condition relates to the character of the legal action and requires that the said action must seek to obtain a relief on the ground that the claimant 's fundamental rights specified in the Presidential Order have been contravened	 and the second condition relates to the period during which this ban is to operate. The ban operates either for the period of the Proclamation or for such shorter period as may be specified in the Order. There is yet another distinction between the provisions of article 358 and article 359(1). The suspension of Art '. 19 for which	 provision is made under article 358 applies to the whole of the country	 and so	 covers all legislatures and also States. On the other hand	 the Order issued under article 359(1) may extend to the whole of India or may be confined to any part of the territory of India. These	 broadly stated	 are the points of distinction between article 358 and article 359(1)	 What then is the true scope and effect of	 article 359(1).? Mr. Setalvad contends that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the Order should be construed to mean the right to move the Supreme Court which has been guaranteed by article 32(1). He suggests that as one reads the relevant clause in article 359(1)	 one seems 815 to hear the echo of the right which has been constitu tionally guaranteed by article 32(1). His argument	 therefore	 is that the only right of which a citizen can be deprived under article 359(1) is the right to	 move the Supreme Court	 and so	 his case is that even in regard to fundamental rights specified in the Presidential Order	 a citizen is entitled to ask for reliefs from the High Court under article 226 because the right to move the High Court flowing from article 226 does not fall within the mischief of article 359(1). This argument attempts to interpret the words "the right to move for the enforcement of the specified rights" in isolation and without; taking into account the other words which indicate that the right to move which is specified in the said Article is the right to move "any courts$. In plain language	 the words "any court" cannot mean only the Supreme Court they would necessarily take in all courts of competent jurisdiction. If the intention of the Constitution makers was to confine the operation of article 359(1) to the right to move only the Supreme Court	 nothing could have been easier than to say so expressly instead of using the wider words "the right to move any court. ') To meet this difficulty	Mr. Setalvad attempted to invoke the assistance of article 32(3). article 32(3) provides that without prejudice to the: powers conferred on the Supreme Court by clauses (1) and ' (2)	 Parliament may by law empower any other court	 to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). The argument is that the Constitution contemplates that there may be some other courts in the country on which the powers exercisable by the Supreme Court under article 32(2) may be conferred	 and so	 the words "any court" may have been intended to take within their purview the Supreme Court and such other courts oil whom the Supreme Courts powers under article 32(2) may have been conferred. This argument is fallacious. The scheme of article 32 clearly indicates that the right to move this Court which itself is a guaranteed fundamental right		 cannot be claimed in respect of courts falling under article 32(3). article 32(3) merely provides for the conferment of this Court 's 816 powers under article 32(2) on the courts specified in clause (3). The right guaranteed by article 32(1) cannot be claimed in respect of the said other courts. Therefore	 oh a plain construction of the relevant clauses of article 32	 it is impossible to accept the argument that courts under article 32(3) must be regarded as having the same status as the Supreme Court and as such the right to move them must also be held to constitute a fundamental right of the citizen in respect of such courts. Besides	 it would be irrational to suggest that whereas the Constitution did not confer on the citizens a guaranteed fundamental right to move the High Court under article 226	 it thought of conferring such a guaranteed fundamental right in regard to courts on which the Supreme ' Court 's powers under article 32(2) would be conferred by article 32(3). Therefore	 the attempt to suggest that 'the use of the words "any Court" used in article 359(1) is justified because they take in the Supreme Court and some other courts	 fails and the conclusion inevitably follows that the words "any court" must be given their plain grammatical meaning and must be construed to mean any court of competent jurisdiction. In other words the words "any court" include the Supreme Court and the High Courts before which the specified rights can be enforced by the citizens. In this connection	 it was attempted to be argued that the power of the High Court to issue the writs or orders specified in article 226(1) is a discretionary power and as such	 no citizen can claim to have a right to move the High Court in that behalf	 and '. so	 it was suggested that the proceedings contemplated by article 226(1) are outside the purview of article 359(1). In our opinion	 this argument is not well founded. It is true that in issuing writs or orders under article 226(1)	 the High Courts have discretion to decide whether a writ or	 %	order should be issued as claimed by the petitioner; but the discretion conferred on the High Courts in that behalf has to be judicially exer cised	 and having regard to the scheme of article 226(1)	 it cannot be said that a citizen. has no right to move the High Court for invoking its jurisdiction under article 226(1); article 226(1) confers wide powers on the High Courts to issue the specified writs	 or other appropriate orders or directions; having regard to the nature of the said powers	 817 and the object intended to be achieved by their conferment there can be little doubt that in dealing with applications made before them the High Courts have to exercise their discretion in a judicial manner and in accordance with principles which are well settled in that behalf. The High Courts cannot capriciously or unreasonably refuse to en tertain the said applications and to deal with them on the merits on the sole ground that the exercise of their juris diction under article 226(1) is discretionary. Therefore	 it is idle to suggest that the proceedings taken by citizens under article 226(1) are outside the purview of article 359(1). We must accordingly hold that the right to move any court under article 359(1) refers to the right to move any court of competent jurisdiction. The next question to consider is	 what is the nature of the proceedings which are barred by the Presidential Order issued under article 359(1) ? They are proceedings taken by citizens for the enforcement of such of the rights conferred by Part III as may be mentioned in the order. If a citizen moves any court to obtain a relief on the ground that his fundamental rights specified in the Order have been contravened	 that proceeding is barred. In determining the question as to whether a particular proceeding falls within the mischief of the Presidential Order or not	 what has to be examined is not so much the form which the proceeding has taken	 or the words in which the relief is claimed	 as the substance of the matter and consider whether before granting the relief claimed by the citizen	 it would be necessary for the Court to enquire into the question whether any of his specified fundamental rights have been contravened. If any relief cannot be granted to the citizen without determining the question of the alleged infringement of the said specified 'fundamental rights	 that is a proceeding which falls under article 359(1) and would	 therefore	 be hit by the Presidential Order issued under the said Article. The sweep 	of article 359(1) and the Presidential Order issued under it is thus wide enough to include all claims made by citizens in any court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is in substance	 seeking to enforce any of the 818 said specified fundamental rights. We have already seen that the operation of article 359(1) and the Presidential Order issued under it is limited to the period during which the proclamation of emergency is in force	 or for such shorter period as may be specified in the Order. That being so	 we feel no difficulty in holding that proceedings taken by a citizen either under article 32(1) or under article 226(1) are hit by article 359(1) and the Presidential Order issued under it. In this connection it would be legitimate to add that the contention of the appellants which seeks to confine the operation of article 359(1) only to the right to move the Supreme Court	 would make the said provision almost meaningless. There would be no point in preventing the citizen from moving this Court	 while leaving it open to him to move the High Courts for the same relief and then to come to this Court in appeal	 if necessary. That takes us to the question as to whether proceedings taken by a citizen under section 491(1)(b) are affected by article 359(1) and the Presidential Order issued under it. Section 491 (1) (b)	 inter alia	 provides that any High Court may	 whenever it thinks fit	 direct that a person illegally or improperly detained in public custody be set at liberty. It has been strenuously urged before us that the proceedings for obtaining directions of the nature of habeas corpus which are taken under section 491 (1) (b) are outside article 359(1)	 and so	 the Presidential Order cannot create a bar against a citizen asking the High Court to issue a writ in the nature of habeas corpus under the said provision. It is necessary to examine this argument very carefully. It is well known that after section 491 was enacted in the Code of Criminal Procedure in the present form in 1923	 the right to obtain a direction in the nature of a habeas corpus became a statutory right in India. After 1923	 it was not open to any party to ask for a writ of habeas corpus as a matter of common law. This question was elaborately considered by Rankin	 C. J.	 in Girindra Nath Banerjee vs Birendra Nath Pal(1)	 where the learned C.J. considered the history of the development of the law on this point and came to the conclusion that the relief of a writ in the nature of a habeas corpus could be claimed (1) I.L.R. 819 after 1923 solely under Cr. P. C. The same view was taken by a full Bench of the Madras High Court in District Magistrate	 Trivandrum vs K. C. Mammen Mappillal(1)	 where the said High Court held that it had no power to issue a writ of habeas corpus as known to the English Common Law. Its powers are confined in that respect to those conferred by section 491 of the Code of Criminal Procedure which gives authority to issue directions of the nature of habeas corpus. When this point was raised before the Privy Council in Matthen vs District Magistrate of Trivandrum (2)	 their Lordships observed that the reasoning of Rankin C.J. in the case of Girindra Nath Banerjee(3) was so clear and convincing that they were content to adopt it	 as also to state that they were in entire agreement with the views expressed by him. The same view was expressed by the Privy Council in King Emperor vs Sibnath Banerji(4). Basing himself on these decisions	 Mr. Setalvad contends that the statutory right to obtain relief under section 491 (1) (b) is a right which is separate and distinct from the Constitutional right guaranteed by the relevant Articles of the Constitution	 and so	 article 359(1) cannot be said to apply to the proceedings under section 491 (1) (b). In support of the same contention	 Mr. Setalvad has also pressed into service the provisions of article 372 by which the existing laws are continued and he has invited our attention to the provisions of article 225 and 375 to show that the jurisdiction conferred on the High Courts by section 491 Cr. P. C. continues unless it is expressly taken away by a competent piece of legislation. In this connection	 reliance has also been placed on the fact that in the past whenever the operation of section 491 was intended to be suspended	 the legislature made a specific provision in that behalf and as an illustration	 reference is made to section 10 of the Restriction and Detention Ordinance	 1944 (No	 III of 1944). Section 10 specifically refers to section 491 of the Code and provides that no Court shall have power to make any order under the said section in respect of any order made under or having	 effect under the Ordinance	 or in respect of any person the subject of such an order. It is urged that the Presidential Order is con (1) I.L.R. 66 I.A. 222. (3) I.L.R. :54 Cal	 727.(4) 72 I.A. 241. 820 fined only to proceedings taken for enforcement of consti tutional rights and if it was intended that the proceedings under section 491(1)(b) should also be prohibited	 it was essen tial that the said provision should	 in terms	 have been suspended by a competent piece of legislation. Mr. Setalvad has also emphasised the fact that the approach in dealing with a proceeding under section 491(1)(b) is different from the approach which the courts adopt in dealing with proceedings under article 226 or article 32. In invoking the Jurisdiction of the High Courts under article 226(1)	 or that of the Supreme Court under article 32(1)	 the Courts always enquire whether the party concerned is aggrieved by the order against which complaint is made. Under section 491(1)(b)	 however	 the court can take action suo motu and that brings out the difference in the character of the two respective categories of proceedings. That	 broadly stated	 is the manner in which Mr. Setalvad has raised his contention that proceedings under section 491 (1) (b) are outside the purview of the Presidential Order and do not fall within the mischief of article 359(1). There is no doubt that the right to ask for a writ in the nature of habeas corpus which could once have been treated as a matter of Common Law has become a statutory right after 1923	 and as we have already seen after section 491 was introduced in the Cr. P. C.	 it was not open to any citizen in India to claim the writ of habeas corpus on grounds recognised by Common Law apart from the provisions of section 491(1)(b) itself. It has	 however	 been suggested by the learned Attorney General that just as the common law right to obtain a writ of habeas corpus became a statutory right in 1923	 a part of the said statutory .tight has now become a part of the fundamental rights guaranteed by the Constitution	 and so	 after the Constitution came into force	 whenever a detenu claims to be released from illegal or improper ' detention	 his claim can	 in some cases	 be sustained on the ground that illegal or improper detention affects his fundamental rights guaranteed by articles 19	 or 21 or 23 as the case may be. If that be so	 it would not be easy to accede to the argument that the said part of the statutory right recognised by section 491(1)(b) retains its distinctive and independent character even after 821 the Constitution came into force to such an extent that it cannot be said to form part of the fundamental rights guaranteed by the Constitution. It is true that there are two remedies open to a party whose right of personal freedom has been infringed; he may move the Court for a writ under article 226(1) or article 32(1) of the Constitution	 or he may take a proceeding under s.491(1)(b) of the Code. But it seems to us that despite the fact that either of the two remedies can be adopted by a citizen who has been detained improperly or illegally	 the right which he claims is the same if the remedy sought for is based on the ground that there has been a breach of his fundamental rights; and that is a right guaranteed to the citizen by the Constitution	 and so	 whatever is the form of the remedy adopted by the detenu	 the right which he is seeking to enforce is the same. It is no doubt urged that under section 491 (1) (b) a stranger can apply for the release of a detenu improperly or illegally detained	 or the Court itself can act suo motu. This argument is based on the provision that the High Court may	 whenever it thinks fit	 issue the appropriate direction. The learned Attorney General contended that the clause "whenever it thinks fit" postulates that some application or petition has been filed before the Court and on perusing the application or petition it appears to the Court fit to take the appropriate action. In other words	 his argument is that the Court cannot take suo motu action under section 491(1)(b). He has also urged that a third person may apply	 but he must show that he has been duly authorised to act on behalf of the detenu or he must at least purport to act on his behalf. We do not think it necessary to express any opinion on this part of the controversy between the parties. We are prepared to assume that the court can	 in a proper case	 exercise its power under section 491(1)(b) suo motu	 but that	 in our opinion	 does not affect the decision of the question with which we are concerned. If article 359(1) and the Presidential Order issued under it govern the proceedings taken under section 491 (1) (b)	 the fact that the court can act suo motu will not make any difference to the legal position for the simple reason that if a party is precluded from claiming his release on the ground set out by him in his petition	 the 822 Court cannot	 purporting to act suo motu	 pass any order inconsistent with the provisions of article 359(1) and the Presidential Order issued under it. Similarly	 if the pro ceedings under section 491(1)(b) are hit by article 359(1) and the Presidential Order	 the arguments based on the provisions of article 372 as well as articles 225 and 375 have no validity. The obvious and the necessary implication of the suspension of the right of the citizen to move any Court for enforcing his specified fundamental right. 	 is to suspend the Jurisdiction of the Court pro tanto in that behalf. Let us take a concrete case which will clearly bring. out the character of the proceedings taken by the detenues in the present cases. An application is made on behalf of the detenu that he is illegally or improperly detained. The State in its return pleads that the detention is neither illegal nor improper because it has been effected under rule 30(1) (b)	 and in support of this return reliance is placed on the provisions of section 3(2)(15)(i) of the Act. On receiving this return	 it is urged on behalf of the detenu that the provisions of section 3(2)(15)(i) as well as Rule 30(1)(b) are invalid because they contravene the fundamental rights guaranteed to the citizens under articles 14	 21 and 22 and so	 the sole issue which falls to be determined between the parties relates to the validity of the relevant statutory provisions and Rules. If the impugned provisions in the Act and the Rules are ultra Vires the detention is illegal and improper	 but if	 on the other hand	 the said provisions are valid	 the detention is legal and proper. In deciding this point	 the Court will naturally have to take into account the provisions of section 45(1) of the Act. Section 45(1) provides that no order made in exercise of any power conferred by or under this Act shall be called in question in any Court; and the reply of the detenu inevitably would be that notwithstanding this provision	 the validity of the impugned legislation must be tested. This clearly brings out the true nature and character of the dispute which is raised before the Court by the detenu in asking for the issue of a writ of habeas corpus in the present proceedings. The question which thus arises for our decision is	 can it be said that the proceedings taken under section 491 (1) (b) are 823 of such a distinctly separate character that they cannot fall under article 359(1) ? Under section 491 as it stood before the date of the Constitution	 it would have been open to the detenu to contend that the law under which he was detained was invalid	 because it was passed by a legislature without legislative competence. The validity of the law might also have been challenged on the ground that the operative provision in the law suffered from the vice of excessive.delegation. The detenu might also have urged that in detaining him the mandatory provisions under the Act had not been complied with. But before the Constitution was adopted	 it would not have been open to the detenu to claim that the impugned law was invalid because it contravened his fundamental rights guranteed by the relevant Articles of the Constitution. The right to challenge the validity of a statute on the ground that it contravenes the fundamental rights of the citizens has accrued to the citizens of this country only after and as a result of the provisions of the Constitution itself	 and SO	 there can be no doubt that when in the present proceedings the detenues seek to challenge the validity of the impugned statutory provision and the Rule	 they are invoking their fundamental rights under the Constitution. If section 491. is treated as standing by itself and apart from the provisions of the Constitution	 the plea raised by the detenues cannot be entertained in the proceedings taken under that section ; it is only when the proceedings taken under the said section are dealt with not only in the light of section 491 and of the rights which were available to the citizens before 1950	 but when they are considered also in the light of the fundamental rights guaranteed by the Constitution that the relevant plea can be raised. In other words	 it is clear that the content of the detenu 's right to challenge the legality of his detention which was available to him under section 491(1)(b) prior to the Constitution	 has been enlarged by the fundamental rights guaranteed to the citizens by the Constitution	 and so	 whenever a detenu relies upon his fundamental rights even in support of his petition made under section 491(1)(b) he is really enforcing the said rights and in that sense	 the proceedings inevitably partake of the character of proceedings taken by the detenu for enforcing these rights; that is why the argument that article 359(1) 824 and the Presidential Order issued under it do not apply to the proceedings under section 491(1)(b) cannot be sustained. The prohibition contained in the said Article and the Presidential Order will apply as much to proceedings under section 491(1)(b) as to those under article 226(1) & article 32(1). In this connection	 it is hardly necessary to emphasise that in deciding the present question	 we must take into account the substance of the matter and not attach undue or exaggerated importance to the form of the proceedings. If the form which the proceedings take is held to be decisive in the matter	 it would lead to this irrational position that an application containing the requisite averments in support of a plea for the release of the detenu	 would be thrown out by the High Court if in form it purports to be made under article 226	 whereas it would be entertained and may indeed succeed if it purports to be made under section 491(1)(b). Indeed	 this argument seems to suggest that when the Constitution makers drafted article 359	 they intended that whenever an emergency arises and a Presidential Order is issued under article 359(1) in regard to the fundamental rights guaranteed by articles 21 and 22	 it would be necessary to pass another piece of legislation providing for an appropriate change or repeal of a part of the provision of section 491(1)(b)	 Cr. P. C.; and since the legislature has through oversight omitted to pass the necessary Act in that behalf	 proceedings under section 491(1)(b) must be allowed to be continued free from the bar created by the Presidential Order. In our opinion	 this position is wholly untenable. Whether or not the proceedings taken under section 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	 we must look at the substance of the matter and not its form. Before giving relief to the detenu who alleges that he has been illegally and impropely detained	 is the High Court required to consider the validity of the operative provisions of the impugned Act on the ground that they infringe the specified fundamental rights? If yes	 the bar created by article 359(1) and the Presidential Order must inevitably step in even though the proceedings in form may have been taken under section 49t(1)(b) of the Code. In our opinion	 therefore	 once it is shown that the proceedings under 825 s.491(1)(b) cannot make a substantial progress unless the validity of the impugned law is examined on the ground of the contravention of the specified fundamental rights	 it must follow that the bar created by the Presidential Order operates against them as much as it operates against proceedings taken under article 226(1) or article 32(1). Thus	 the true legal position	 in substance	 is that the clause "the right to move any court" used in article 359(1) and the Presidential Order takes in all legal actions intended to be filed	 or filed	 in which the specified rights are sought to be enforced	 and it covers all relevant categories of Jurisdictions of competent courts under which the said actions would otherwise normally have been entertained and tried. At this stage	 we may conveniently refer to the recent decision of this Court in Sree Mohan Chowdhury vs The Chief Commissioner	 Union Territory of Tripura(1)	 wherein this Court rejected the detenu 's petition on the ground that it was barred by the Presidential Order and it refused to entertain the argument that the Ordinance and the Act and the Rules framed thereunder were void for the reason that they contravened articles 14	 21 & 22	 with the observation that the challenge made by the petitioner in that behalf really amounted to "arguing in the circle". If the Presidential Order precludes a citizen from moving the Court for the enforcement of the specified fundamental rights	 it would not be open to the citizen to urge that the Act is void for the reason that it offends against the said fundamental rights. It is in order to prevent the citizen from making such a claim that the Presidential Order has been issued	 and so	 during the period of its operation	 the challenge to the validity of the Act cannot be entertained. Incidentally	 it may be observed that a petition for a writ of habeas corpus made by Mohan Chowdhury which was rejected by this Court on the ground that it was barred under the Presidential Order would	 on the view for which the appellants contend	 be competent if it is presented before the appropriate High Court under section 491(1)(b) of the Code; and that incidentally illustrates how exaggerated importance to the form of the petition would lead to extremely anomalous and irrational consequences. Therefore	 our conclusion is that the proceedings (1) [1964] 3 S.C.R.412. 53 2 SC India/64 826 taken on behalf of the appellants before the respective High Courts challenging their detention on the ground that the impugned Act and the Rules arc void because they contravene articles 14	 21 and 22	 arc incompetent for the reason that the fundamental rights which are alleged to have been contravened are specified in the Presidential Order and all citizens ire precluded from moving any Court for the enforcement of the said specified rights. The next question to consider is the validity of tile Presidential Order itself which was issued on the 3rd November	 1962. This is how the Order reads: "G.S.R. 1464. In exercise of the powers conferred by clause (1) of article 359 of the Constitution	 the President hereby declares that the right of any person to move any court for the enforcement of the rights conferred by article 21 and article 22 of the Constitution shall remain suspends for the period during which the Proclamation of Emergency issued under clause (1) of article 352 thereof on 	lie 26th October	 1962 is in force	 if such person has been delivered of any such rights under the Defence of India Ordanance	 1962 (4 of 1.962) or any rule or order made thereunder. " We have already stated that this Order was subsequently modified on the 11th November	 1962	 by the addition of article 14. The first argument which has been urged against the validity of this Order is that it is inconsistent with the provisions of article 359(1). It is argued that the Order which the President is authorised to issue under this Article must be an Order of general application; in fact	 the Order purports to be confined to persons who have been deprived of any of the specified rights under the Defence of India Ordinance	 1962	 or any Rule or Order made thereunder. In other words	 there is no doubt that this Order does not apply to persons who have been detained under the provisions of the earlier No. 4 of 1950	 and so	 in limiting the application of the Order to persons who have been detained under the Ordinance	 the President has acted outside the powers conferred on him by article 359(1). In our opinion	 this argument cannot be sustained. The power conferred on the President is wide enough to enable him to make an Order applicable to all parts of the country and to all 827 citizens and in respect of any of the rights conferred by Part 111. This wide power obviously includes the power to issue a limited order. What the Order purports to do is to provide that all persons wherever they reside who have been detained under the Ordinance or the Act	 will be precluded from moving any court for the enforcement of the rights specified in the Order. It is not easy to see how this Order can be said to contravene or be otherwise inconsistent with the powers conferred on the President by article 359(1). It is then argued that the said Order is invalid because it seeks to give effect to the Ordinance which is void. It will be recalled that Ordinance No. 4 of 1962 was promul gated on the 26th October	 1962	 whereas the Order was issued under article 359(1) on the 3rd November	 1962. The argument is that during the period between the 26th October and the 3rd November the validity of the said Ordinance could have been challenged on the ground that it contravened articles 14	 21 and 22	 and so	 the said Ordinance can be held to have been a still born piece of legislation and yet detentions effected under such a void law are sought to be protected by the Presidential Order by depriving the the detenues of their right to move any court to challenge the validity of the orders of detention passed against them. In our opinion	 this argument is wholly misconceived. We have already stated that for the purpose 'of these appeals	 we are prepared to assume that despite the issue of the Order under article 359(1)	 the fundamental rights guaranteed by articles 14	 21 and 22 are not suspended; what is suspended is the enforcement of the said rights during the prescribed period	 and so	 what is said about the invalidity of the Ordinance during the period between 26th October and 3rd November is true even after the Order was issued on the 3rd November. If the detenues are justified in contending that the Ordinance and the Act which took its place contravened the fundamental rights guaranteed by articles 14	 21 and 22	 the said Ordinance and the Act would be and would continue to be invalid; but the effect of the Presidential Order is that their invalidity cannot be tested during the prescribed period. Therefore	 the argument that since the Ordinance or the Act is invalid	 the Presidential Order cannot preclude a citizen from test 828 ing its validity	 must be rejected. The same argument is put in another form. It is urged that we have merely to examine the Ordinance and Act to be satisfied that articles 14	 21 and 22 (4)	 (5) and (7) have been contravened and it is suggested that if these infirmities in the Ordinance and the Act are glaring	 it would not be open to the President to issue an Order pre venting the detenues from challenging the validity of the said statutory provisions. That	 in substance	 is what is described by this Court in Mohan Choudhury 's case(1) as arguing in the circle". Therefore	 we are satisfied that the challenge to the validity of the Presidential Order is not well founded. It still remains to consider what are the pleas which are now open to the citizens to take in challenging the legality or the propriety of their detentions either under section 491(1)(b) of the Code	 or article 226(1) of the Constitution. We have already seen that the right to move any court which is suspended by article 359(1) and the Presidential Order issued under it is the right for the enforcement of such of the rights conferred by Part III as may be mentioned in the Order. If in challenging the validity of his detention order	 the detenu is pleading any right outside the rights specified in the Order	 his right to move any court in that behalf is not suspended	 because it is outside article 359(1) and consequently outside the Presidential Order itself. Let us take a case where a detenu has been detained in violation of the mandatory provisions of the Act. In such a case	 it may be open to the detenu to contend that his detention is illegal for the reason that the mandatory provisions of the Act have been contravened. Such a plea is outside article 359(1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential Order. Take also a case where the detenu moves the Court for a writ of habeas corpus on the ground that his detention has been ordered malafide. It is hardly necessary to emphasise that the exercise of a power malafide is wholly outside the scope of the Act conferring the power and can always be successfully challenged. It is true that a mere allegation that the detention is malafide would not be (1) ; 829 enough; the detenu will have to prove the malafides. But if the malafides are alleged	 the detenu cannot be precluded from substantiating his plea on the ground of the bar created by article 359(1) and the Presidential Order. That is another kind of plea which is outside the purview of article 359(1). Section 491(1) deals with the power of the High Court to issue directions in the nature of the habeas corpus	 and it covers six categories of cases in which such a direction 	can be issued. It is only in regard to that class of cases falling under section 491(1)(b) where the legality of the deten tion is challenged on grounds which fall under article 359(1) and Presidential Order that the bar would operate. In all other cases falling under section 491(1) the bar would be inap plicable and proceedings taken on behalf of the detenu will have to be tried in accordance with law. We ought to add that these categories of pleas have been mentioned by us by way of illustration	 and so	 they should not be read as exhausting all the pleas which do not fall within the purview of the Presidential Order. There is yet another ground on which the validity of the detention may be open to challenge. If a detenu contends that the operative provision of the law under which he is detained suffers from the vice of excessive delegation and is	 therefore	 invalid	 the plea thus raised by the detenu cannot at the threshold be said to be barred by the Presi dential Order. In terms	 it is not a plea which is relatable to the fundamental rights specified in the said Order. It is a plea which is independent of the said rights and its validity must be examined. Mr. Chatterjee has urged before us that section 3(2) (15) (i) as well as section 40 of the Act are invalid	 because they confer oil the rule making authoritypower which is often described as excessive delegation. It is	therefore	 necessary to consider this point. The Actwhich took the place of the Ordinance was passed	 because it was thought necessary to provide for special measures to ensure the public safety and interest	 the defence of India and civil defence and for the trial of certain offences and for matters connected therewith. Section 3(2)(15)(i) whose validity is challenged purports to confer on the Central Government power to make Rules. Section 3(1) reads thus : 830 "The Central Government may	 by notification in the Official Gazette	 make such rules as appear to it necessary or expedient for securing the defence of India and civil defence	 the public safety	 the maintenance of public order or the efficient conduct of military operations	 or for maintaining supplies and services essential to the life of the community." Section 3(2) provides that without prejudice to the gene rality of the powers conferred by sub section (1) the rules may provide for	 and may empower any authority to make orders providing for	 all or any of the following matters; then follow clauses (1) to (57)	 including several subclauses which provide for the matters that may be covered by the Rules. Amongst them is cl. (15)(i) which reads as under: "Notwithstanding anything in any other law for the time being in force	 the rules to be made may provide for the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain (the authority empowered to detain not being lower in rank than that of a District Magistrate) suspects	 on grounds appearing to that authority to be reasonable	 of being of hostile origin or of having acted	 acting	 being about to act or being likely to act in a manncr prejudicial to the defence of India and civil defence	 the security of the State	 the public safety or interest	 the maintenance of public order	 India 's relations with foreign States	 the maintenance of peaceful conditions in any part or area of India or the efficient conduct of military operations	 or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner. " The argument is that in conferring power on the Central Government to make rules	 the legislature has abdicated its essentially legislative function in favour of the Central Government. In our opinion	 this argument is wholly un tenable. Right up from the time when this Court dealt with Special References in 1951	 In re The etc.(1) the question about the limits within which (1) ; 831 the legislature can legitimately confer powers on its dele gate has been examined on several occasions and it has been consistently held that what the legislature is prohibited from doing is to delegate its essentially legislative func tion and power. If it appears from the relevant provisions of the impugned statute that powers which have been delegated include powers which can legitimately be regarded as essentially legislative powers	 then the legislation is bad and it introduces a serious infirmity in the Act itself. On the other hand	 if the legislature lays down its legislative policy in clear and unambiguous terms and leaves it to the delegate to execute that policy by means of making appropriate rules	 then such delegation is not impermissible. In Harishanker Bagla vs The State of Madhya Pradesh(1) where the validity of section 3 of the Essential Supplies (Temporary Powers) Act	 1946	 was challenged	 this Court in upholding the validity of the impugned statute held that the preamble and the body of the relevant sections of the said Act sufficiently formulate the legislative policy and observed that the ambit and the character of the Act is such that the details of that policy can only be worked out by delegating that power to a subordinate authority within the framework of that policy. The same view has been expressed in Bhatnagars and Co.	 Ltd.	 vs The Union of India( ). In the present cases	 one has merely to read section 3(1) and the detailed provisions contained in the several clauses of section 3(2) to be satisfied that the attack against the validity of the said section on the ground of excessive delegation is patently unsustainable. Not only is the legislative policy broadly indicated in the preamble to the Act	 but the relevant provisions of the impugned section itself give such detailed and specific guidance to the rule making authority that it would be idle to contend that the Act has delegated essentially legislative function to the rule making authority. In our opinion	 therefore	 the contention that section 3(2)(15)(i) of the Act suffers from the vice of excessive delegation must be rejected. What we have said about this section applies with equal force to section 40. If the impugned sections of the Act are valid	 it follows that Rule 30(1)(b) which is challenged by the appellants must be (1) (2) ; 832 held to be valid since it is consistent with the operative provisions of the Act and in making it	 the Central Gov ernment has acted within its delegated authority. This conclusion is	 of course	 confined to the challenge of the appellants based on the ground that the impugned provisions and the Rule suffer from the vice of excessive delegation. If we had held that the impugned provision in the Act suffered from the vice of excessive delegation	 it would have become necessary to consider what the effect of that conclusion would have been on the merits of the controversy between the parties in the present proceedings. If we had reached the conclusion that the impugned sections were invalid because they conferred power on the rule making authority which suffers from the vice of excessive delegation	 the question would have arisen whether in challenging the validity of the Order of detention passed against him the detenu is enforcing his fundamental right under article 21 of the Constitution. article 21 is one of the articles specified in the Presidential Order and if at any stage of the proceedings	 the detenu seeks to enforce his right under the said Article	 that would be barred. It may be urged that if the detenues had been able to show that the impugned provisions of the Act were invalid because they suffered from the infirmity of excessive delegation	 the next step which they would have been entitled to take was to urge that their detention under such an Act is void under article 21	 because the law referred to in that Article must be a valid law; and that would raise the question as to whether this latter plea falls within the ambit of article 359(1) and the Presidential Order issued under it. We do not propose to express any opinion on this question in these appeals. Since we have held that the Act does not suffer from the vice of excessive delegation as alleged	 it is unnecessary to pursue the enquiry as to whether if the challenge had been upheld	 the detenu would have been precluded from urging the said invalidity in support of his plea that his detention was illegal. We must now turn to some other arguments which were urged before us at the hearing of these appeals. Mr. Sule contends that part of the Act containing the im 833 pugned sections was a colourable piece of legislation. His argument was that since the No. 4 of 1950 was already on the statute book	 it was hardly necessary for the Legislature to have passed the impugned Act	 and he urges that since the sole object of the Legislature in passing the impugned Act was to deprive the citizens of their fundamental rights under articles 21 and 22	 it should be deemed to be a colourable piece of legislation. The legislative competence of the Parliament to pass this Act is not disputed. Entry No. 9 in List I in the Seventh Schedule confers on the Parliament jurisdiction to make laws in regard to the preventive detention for reasons connected with defence	 foreign affairs	 or the security of India as well as in regard to persons subjected to such detention. If the Legislature thought that having regard to the grave threat to the security of India posed by the Chinese aggression	 it was necessary to pass the impugned Act notwithstanding the fact that another Act had already been passed in that behalf	 it would be difficult to hold that the Legislature had acted malafide and that the Act must	 therefore	 be struck down as a colourable exercise of legislative power. It is hardly necessary to emphasise that a plea that an Act passed by a legislature competent to pass it is a colourable piece of legislation	 cannot succeed on such flimsy grounds. Whether or not it was wise that this part of the Act should have been passed	 is a matter which is wholly irrelevant in dealing with the plea that the Act is a colourable piece of legislation. In this connection	 we may refer to another aspect of the same argument which has been pressed before us. Before doing so	 however	 let us briefly indicate the effect of the relevant Articles. Article 14 guarantees equality before law. Article 21 provides	 inter alia	 that no person shall be deprived of his personal liberty	 except according to procedure established by law	 and article 22(4)	 (5) (6) & (7) lay down Constitutional safeguards for the protection of the citizen whose personal liberty may be affected by an order of detention passed against him. Article 22(4) requires that an Advisory Board should be constituted and that cases of detenues should be referred to the Advisory Board for its opinion as provided therein. Article 22(5) 834 imposes an obligation on the detaining authority to commu nicate to the detenu grounds on which the order of detention has been passed against him with a view to afford him the earliest opportunity of making a representation against the order. Article 22(6) provides that in giving notice to the detenu under article 22(5)	 facts need not be disclosed which the detaining authority considers to be against public interest to disclose	 and article 22(7) prescribes certain conditions which have to be satisfied by any law which the Parliament may pass empowering the detention of citizens. It is thus clear that the Constitution empowers the Parliament to make a law providing for the detention of citizens	 but this power has to be exercised subject to the mandatory conditions specified in article 22(4)	 (5) & (7). It is common ground that the of 1950 complies with these requirements inasmuch as it has enacted sections 7 to 13 in that behalf. It is also clear that these Constitutional safeguards have not been provided for by the impugned Act. The argument is that even if the Parliament thought that during the period of emergency	 citizens reasonably suspected to be engaged in prejudicial activities should be detained without affording them the benefit of the Con stitutional safeguards guaranteed by article 22(4)	 (5) & (7)	 the Parliament need not have enacted the Act and might well have left the executive to take action under the of 1950	 and since Parliament has chosen to pass the Act under challenge and has disregarded the Constitutional provisions of Articles 14 and 22	 the exercise of legislative power by Parliament must	 in the context	 be held to be a colourable exercise of legislative power. This argument seems to assume that if the Parliament had expected the executive to detain citizens under the of 1950 without giving them the benefit of the Constitutional safeguards prescribed by article 22	 their cases could have been covered if a Presidential Order had been issued under article 359(1) in respect of such detentions. The question is: is this assumption well founded? Assuming that the Presidential Order had suspended the citizens ' right to move any court for enforcing their fundamental rights under articles 14	 21 and 22 and had made 835 the said Order applicable to persons detained under the of 1950	 could that Order have effectively prevented the detenues from contending that their detention was illegal and void? In such a case	 if the detenu was detained under the of 1950 and he challenged the validity of his detention on the ground that the relevant provisions of the said Act had not been complied with	 would his challenge be covered by article 359(1) and the Presidential Order issued under it? In other words	 can it be said that in making the said challenge	 he was enforcing his fundamental rights specified in the Presidential Order? If it is held that he was challenging the validity of his detention because the mandatory provisions of the Act had not been complied with	 his challenge may be outside article 359(1) and the Presidential Order. If	 on the other hand	 it is held that	 in substance	 the challenge is to enforce his aforesaid fundamental rights	 though he makes the challenge by reference to the relevant statutory provisions of the Act themselves that would have brought Ills challenge within the prohibition of the Presidential Order. Normally	 as we have already held	 a challenge against the validity of the detention on the ground that the statutory provisions of the Act under which the detention is ordered have not been complied with	 would fall outside article 359(1) and the Presidential Order	 but the complication in the hypothetical case under discussion arises because unlike other provisions of the Act	 the mandatory provisions in question essentially represent the fundamental rights guaranteed by article 22 and it is open to argument that the challenge in question sub stantially seeks to enforce the said fundamental rights. In the context of the alternative argument with which we arc dealing at this stage	 it is unnecessary for us to decide whether the challengein question would have attracted the provisions ofArt. 359(1) and the Order or not. We are referringto this matter only for the purpose of showing thatthe Parliament may have thought that the executive would not be able to detain citizens reasonably suspected of prejudicial activities by taking recourse to the of 1950	 and that may be the genesis of the impugned Act. If that 836 be so	 it would not be permissible to suggest that in passing the Act	 Parliament was acting malafide. It is quite true that if the Act has contravened the citizens ' fundamental rights under articles 14 and 22	 it would be void and the detentions effected under the relevant provisions of the said Act would be equally inoperative; but it must be remembered that it is precisely in this set of circumstances that article 359(1) and the Presidential Order issued under it step in and preclude the citizen from enforcing his fundamental rights in any court. The said Article as well as the Presidential Order issued under it indicate that there may be cases in which the specified fundamental rights of citizens have been contravened by executive action and the impugned executive action may be invalid on that account. That is precisely why the said Article and the Presidential Order impose a ban against the investigation of the merits of the challenge during the period prescribed by the Order. Therefore	 the alternative argument urged in support of the plea that the impugned provisions of the Act amount to a colourable piece of legislation fails. Mr. Parulekar who argued his own case before us with remarkable ability	 contended that a detenu cannot be prevented from disputing the validity of the Ordinance	 Act and the Rules under the Presidential Order if he did not ask for any consequential relief. His argument was that the prayer made in his petition under section 491(1)(b) consists of two parts; the first prayer is to declare that the impugned Act and the Order are invalid	 and the second prayer is that his detention should be held to be illegal and his release should accordingly be ordered. The first prayer	 says Mr. Parulekar	 cannot fall within the mischief of the Order because he is not enforcing any of his rights when he asks merely for a declaration that the law is invalid	 and he suggested that even if we take the view that he is precluded from challenging the validity of his detention by virtue of the said Order	 we should not preclude him from challenging the validity of the law merely with a view to obtain a declaration in that behalf. In our opinion	 this argument cannot be accepted. What section 359(1) purports to do is to empower the President to make an Order by which the right of the detenue to move the Court 437 to challenge the validity of his detention on the ground that any of his fundamental rights specified in the Order have been contravened	 is suspended	 and so	 it would be unreasonable to suggest that what the detenu cannot do in order to secure his release	 he should be allowed to do merely for the purpose of obtaining an academic declaration. A proceeding taken under section 491(1)(b) like a petition filed under article 226(1) or article 32(1) is intended to obtain relief	 and the relief in such cases means the order for the release of the detenu. If the detenu is prohibited from asking for an order of release on the ground that the challenge to the validity of his order of detention cannot be made during the pendency of the Presidential Order	 we do not see how it would be open to the same detenu to claim a mere declaration either under s.491	 Cr. P.C. or article 226(1) or article 32(1) of the Constitution. We do not think that it was open to the High Court to consider the validity of the impugned Act without relation to the prayer made by the detenu in his petition. The proceedings commenced by the detenu by means of his petition under section 491(1)(b) constitute one proceeding and if the sole relief which the detenu seeks to obtain cannot be claimed by him by virtue of the Presidential Order	 it would be unreasonable to hold that he can claim a different relief	 VI Z.	 a mere declaration; such a relief is clearly outside the purview of the proceedings under section 491(1)(b) and articles 226(1) and 32(1). During the course of the hearing of these appeals	 it has been strenuously pressed before us by Mr. Setalvad that the emergency created by the Chinese act of aggression may last long and in consequence	 the citizens would be precluded from enforcing their fundamental rights specified in the Presidential Order during the period that the Order is in operation. That	 however	 has no material bearing on the points with which we are concerned. How long the Proclamation of Emergency should continue and what restrictions should be imposed on the fundamental rights of citizens during the pendency of the emergency	 are matters which must inevitably be left to the executive because the executive knows the requirements of the situation and the effect of compulsive factors which operate during periods of grave crisis	 such as our country is facing 838 today. As Lord Wright observed in the case of Liver sidge(1)	 "the safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved. If extra ordinary powers are here given	 they are given because the emergency is extraordinary and are limited to the period of the	 emergency. " The other aspect of Mr. Setalvad 's argument was that during Operation the Presidential Order	 the executive may abuse. Its powers and the citizens would have no remedy. This argument is essentially political and its impact on the constitutional question with which we are concerned is at best indirect. Even so	 it may be permissible to observe that in a democratic State	 the effective safeguard against abuse of executive powers whether in peace or in emergency	 is ultimately to be found in the existence of enlightened	 vigilant and vocal public opinion. The appellants have also relied upon the made by Lord Atkin in the case of Eshuqbavi Elecko vs Officer Administering the Government of Nigeria (2). "In accordance with British jurisprudence	 said Lord Atkin, no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of Justice. And it is the tradition of British Justice that Judges should not shrink from deciding such issues in the face of the executive. " These noble sentiments so eloquently expressed by Lord Atkin as well as his classic minority speech in the case of Liversidge evoke a spontaneous response in the minds of all of us who have taken the oath to administer law in accordance with our Constitution and to uphold the fundamental rights of citizens guaranteed by the Constitution. This Court is fully conscious of the solemn duty imposed on it by article 32 which constitutes it the Custodian and Guardian of the citizens ' fundamental rights. But we must remember that the democratic faith in the inviolable character of individual liberty and freedom and the majesty of law which sustains it must ultimately be governed by the Constitution itself. The Constitution is the law of laws the paramount (1) ; (2) 839 and supreme law of the country. It has itself enshrined the fundamental rights of the citizens in the relevant Articles of Part III and it is no doubt the duty of this Court as the Custodian of those rights to see that they are not contravened contrary to the provisions of the Constitution. But the Constitution itself has made certain emergency provisions in Chapter XVIII with a view to en 	Able the na tion to meet grave emergencies like the present	 and so	 in dealing with the question about the citizen 's right to chal lenge the validity of his detention	 we will have to give effect to the plain words of article 359(1) and the Presidential Order issued under it. As we have already indicated	 the only reasonable construction which can be placed upon article 359)(1) is to hold that the citizen 's right to take any legal proceeding for the enforcement of his fun damental rights which have been specified in the Presi dential Order is suspended during the prescribed period. It is	 in our opinion	 plain that the right specified in article 35)(1) includes the relevant right	 whether it is statutory	 Constitutional or Constitutionally guaranteed	 and the words "any court" refer to all courts of competent jurisdiction and naturally include the Supreme Court and the High Courts. If that be so	 it would be singularly inappropriate for this Court to entertain an argument which seeks to circumvent this provision by suggesting that the right of the detenu to challenge the legality of his detention under section 491(1)(b) does not fall within the scope of the said Article. The said argument concentrates attention on the mere form of the petition and ignores the substance of the matter altogether. In the context	 we think	 such a sophisticated approach which leans solely on unrealistic and artificial subtlety is out of place and is illogical	 unreasonable and unsound. We must	 therefore	 hold that the Punjab and the Bombay High Courts were right in coming to the conclusion that the detenues before them were not entitled to contend that the impugned Act and the statutory Rule under which they were deained were void for the reason that they contravened articles 14	 21 and 22(4)	 (5) & (7). Before we part with these appeals	 we ought to mention one more point. At the commencement of the hearing of these appeals when Mr. Setalvad began to argue about 840 the validity of the impugned provisions of the Act and the Rules	 the learned Attorney General raised a preliminary contention that logically	 the appellants should satisfy this Court that it was open to them to move the High Courts on the grounds set out by them before the validity of the said grounds is examined. He suggested that	 logically	 the first point to consider would be whether the detenues can challenge the validity of the impugned Act on the ground that they arc illegally detained. If they succeed in showing that the applications made by them under section 491(1)(b) are competent and do not fall within the purview of article 359(1) and the Presidential Order	 then the stage would be reached to examine the merits of their complaint that the said statutory provisions are invalid. If	 however	 they fail on the first point	 the second Point would not fall to be considered. We then took the view that since a large number of appeals were placed for hearing before us and they raised important issues of Constitutional Law	 it would be better to allow Mr. Setalvad to argue the case in the manner he thought best	 and so	 Mr. Setalvad addressed us on the validity of the Act in the first instance and then dealt with the question about the competence of the applications made under section 491 (1) (b) of the Code. In the main	 the same method was adopted by the learned Advocates who followed Mr. Setalvad on the appellants ' side. Naturally	 when the learned Attorney General made his reply	 he also had to address us on both the points. It appeared that as regards the validity of the impugned provisions of the Act and the Rules he was not in a position to challenge the contention of the appellants that the Act contravened articles 14	 21 and 22(4)	 (5) & (7). Even so	 he strongly pressed before us his original contention that we would not reach the stage of expressing our opinion on the validity of the Act if we were to uphold the preliminary objection that the applications made by the detenues were incompetent. In our opinion	 the learned Attorney General is right when he contends that we should not and cannot pronounce any opinion on the validity of the impugned Act if we come to the conclusion that the bar created by the Presidential Order operates against the detenues in the present cases. In fact	 that is the course which this Court 841 adopted in dealing with Mohan Choudhury 's case(1)	 and we are satisfied that that is the only course which this Court can logically and with propriety adopt. In the result	 we hold that the Punjab and the Bombay High Court are right in coming to the conclusion that the applications made by the detenues for their release under section 491 (1) (b)	 Cr. P. C. are incompetent in so far as they seek to challenge the validity of their detentions on the ground that the Act and the Rule under which they are detained suffer from the vice that they contravene the fundamental rights guaranteed by articles 14	 21 and 22(4)	 (5) and (7). Since these appeals were placed before the Special Bench for the decision of the common questions of law raised by them	 we do not propose to examine the other contentions which each one of the appellants seeks to raise in his appeal. Therefore	 we direct that all the appeals included in the present group should now be set down before a Constitution Bench and each one of them should be dealt with in accordance with law. SUBBA RAO J. I have had the advantage of reading the judgment of my learned brother	 Gajendragadkar J. I regret my inability to agree with him wholly. I agree with his conclusion in regard to the applicability of article 359 of the Constitution to a right to move a court both under article 32(1) and article 226 thereof	 but not with his conclusion in regard to the exercise of power by the High Court under s.491 of the Code of Criminal Procedure. These appeals raise questions of great importance touching apparently conflicting	 but really harmonious	 concepts of individual liberty and security of the State	 for the former cannot exist without the latter. My only Justification for a separate treatment of the subject even on questions on which 	here is general agreement is my conviction that on important questions I should express my thoughts in my own way. Broadly	 two questions are posed for the consideration of this Court	 namely (i) whether section 3(2) (15) (i) of the Defence of India Act	 1962 (51 of 1962)	 hereinafter called the Act	 and r. 30(1)(b) of the Rules made in exercise of the power conferred under the Act are constitutionally void; and (ii) whether the Order made by the President in exercise of the power conferred on 'him under article 359(1) of the Constitution would be a (1) ; 54 2 section C. India/64 842 bar against the maintainability.of any action in any court to question the validity of the detention order made under the Act. I shall deal with the two questions in the said order. Before dealing with the first question it would be conveni ent to quote the impugned provisions of the Act. Section 3. ( 1) The. Central Government may by notification in the Official Gazette	 make such rules as appear to it necessary or expedient for securing the defence of India and civil defence	 the public safety	 the maintenance of public order or the efficient conduct of military operations	 or for maintaining supplies and services essential to the life of the community. (2)Without prejudice to the generality of the powers conferred by sub section (1)	 the rules may provide for	 and may empower any authority to make orders providing for	 all or any of the following matters	 namely. (15)notwithstanding anything in any other law for the time being in force	 (i) the apprehension and detention in custody of any person whom the authority empowered by the rules to apprehend or detain (the authority empowered to detain not being lower in rank than that of a District Magistrate) suspects	 on grounds appearing to that authority to be reasonable	 of being of hostile origin or of having acted	 acting	 being about to act or being likely to act in a manner prejudical to the defence of India and civil defence	 the security of the State	 the public safety or interest	 the maintenance of public order	 India 's relations with foreign States	 the maintenance of peaceful conditions in any part or area of India or the efficient conduct of military operations	 or with respect to whom that authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudicial manner	 * * * * Rule 30. (1) The Central Government or the State Government	 if it is satisfied with respect to any particular person that with a view to preventing him from 843 acting in any manner prejudicial to the defence of India and civil defence	 the public safety	 the maintenance of public order	 India 's relations with foreign powers	 the maintenance of peaceful conditions in any part of India	 the efficient conduct of military operations or the maintenance of supplies and services essential to the life of the community	 it is necessary so to do	 may	 make an order * * * * (b)directing that he be detained. Rule30A. (2) Every detention order shall be reviewedin accordance with the provisions hereinafter contained. (3)A detention order made by the Central Government Or the State Government or the Administrator shall be reviewed by the Central Government or the State Government or the Administrator	 as the case may be. (4)A detention order made by an officer (who shall in no case be lower in rank than that of a District Magistrate) empowered by the State Government or the Administrator shall be reviewed : (a) in the case of an order made by an officer empowered by the State Government	 by a reviewing authority consisting of any such two officers from among the following officers of that Government	 that is to say	 the Chief Secretary	 a mem ber of the Board of Revenue	 a Financial Commissioner and a Commissioner of a Division	 as may be specified by that Government by notification in the Official Gazette ; (b) in the case of an order made by an officer empowered by the Administrator	 by the Administrator himself. Under the said provisions the Central Government or the State Government or an officer on whom the power to detain is delegated can direct the detention of any person if the detaining authority is satisfied that his detention is necessary for one or other of the reasons mentioned in r. 30. No grounds of detention need be served upon the detenu; no opportunity need be given to him to make representations or establish his innocence. The period of detention can be indefinite. The Central Government or the 844 State Government or the Administrator of a Union Territory	 as the case may be	 is authorised to review the order of detention made by them. So too	 a detention order made by an officer empowered by the State Government in that behalf can be reviewed by one or other of the officers mentioned in r. 30A (4) It is contended that the said provisions infringe article 22(4) and (5) of the Constitution and	 therefore	 void. This Court in Deepchand vs The State of Uttar Pradesh(1) laid down the effect of a law made in infringement of fundamental rights; and observed : "The result of the aforesaid discussion may be summarized in the following propositions; (i) whether the Constitution affirmatively confers powers on the legislature to make laws subject wise or negatively prohibits it from infringing any fundamental right	 they represent only	 two aspects of want of legislative power; (ii) the Constitution in express terms makes the power of a legislature to make laws in regard to the entries in the Lists of the Seventh Schedule subject to the other provisions of the Constituion and thereby circumscribes or reduces the said power by the limitations laid down in Part III of the Constitution; (iii) it follows from the premises that a law made in derogation or in excess of that power would be ab initio void wholly or to the extent of the contravention	 as the case may be;. . . . " This view was accepted by a later decision of this Court in Mahandra Lal vs State of U.P.(2). It is	 therefore	 manifest that if the Act and the rules framed thereunder infringed the provisions of article 22(4) and (5) of the Constitution	 they would be ab initio void they would be stillborn law and any detention made thereunder would be an illegal detention. Articles 21 and 22 enshrine fundamental rights relating to personal liberty	. Clauses (4) to (6) of article 22 specifically deal with preventive detention. This Court has held in A. K . Gopalan vs State of Madras(3) that the word '.	law" in article 21 means State made law or enacted law and that article 22 lays down only the minimum procedural conditions which such a (1) [1959] Supp. 2 S.C.R. 8	 40. (2 ) ; (3) ; 845 a statutory law cannot infringe in the matter of pre ventive detention. The minimum conditions arc as follows: (1) Parliament may make a law prescribing the maximum period for which any person may be detained; (2) he shall not be detained for a period more than 3 months unless an Advisory Board constituted for that purpose reports before the expiry of three months that there is sufficient cause for detention ; and (3) the authority making the order shall communicate to such person the grounds on which the order has been made and afford him the earliest opportunity of making representations against the order. At the same time cl. (7) enables Parliament to make a law prescribing the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months without obtaining the opinion of the Advisory Board. Clause (6) of article 22 enables an authority not to disclose facts to the detenu which it considers to be against the public interest to disclose. While cls. (4) to (6) of article 22 provide for the minimum safeguards for a dctenu in the matter of preventive detention	 cl. (7) removes them enabling Parliament to make a law for preventive detention ignoring practically the said safeguards. The only outstanding safeguard	 therefore	 is that Parliament can only make a law in derogation of the said safeguards by defining the circumstances under which and the class or classes of cases in which a person may be so detained. Parliament did not make such a law. Neither the Act nor the rules made thereunder satisfy the conditions laid down in that clause. The Act and the rules do not provide for the maximum period of detention	 for the communication to the detenu of the grounds of detention	 for affording him an opportunity of making representations against his detention	 or for an Advisory Board consisting of persons with the requisite qualifications. The power to review given to the detaining authority cannot conceivably satisfy the condition of an Advisory Board provided for under cl. (4)(a) of article 22. It is	 therefore	 a clear case of Parliament making a law in direct infringment of the relevant provisions of article 22 of the Constitution	 and therefore the law so made is void under the said Article.	 846 In this context a relevant aspect of the argument advanced by the learned Attorney General may be noticed. He contends that	 on a true construction of article 359(1) of the Constitution	 if the requisite order is made by the President	 a law can be made in infringement of article 22 of the Constitution. Under article 359	 the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order shall remain suspended for the period during which a Proclamation of Emergency is in force or for such shorter period as may be specified in the order. It is contended that when remedy is suspended in respect of infringement of article 22	 the right thereunder also falls with it. It is said that right and remedy are reciprocal; and if there cannot be a right without a remedy	 there cannot also be a remedy without a right. In "Salmond on jurisprudence"	 11th Edn.	 the following interesting passage is found	 at p. 531	 under the heading "Ubi jus Ibi Remedium"; "Whenever there is a right	 there should also be an action for its enforcement. That is to say	 the substantive law should determine the scope of the law of procedure	 and not vice versa. Legal procedure should be sufficiently elastic and comprehensive to afford the requisite means for the protection of all rights which the substantive law sees fit to recognize. In early systems this is far from being the case. We there find remedies and forms of action determining rights than rights determining remedies. The maxim of primitive law is rather	 Ubi remedium ibi jus. " I understand this passage to mean that a right pertains to the substantive law and the remedy	 to procedural law; that where a right is provided by a statute a remedy	 though not expressly provided for	 may necessarily be implied. But the converse	 though obtained in primitive law	 cannot be invoked in modern times. To put it in other words	 the suspension of a remedy cannot abrogate the right itself. Indeed	 a comparative study of articles 358 and 359 of the Constitution indicates that it could not have been the intention of the makers of the Constitution	 for article 358 expressly suspends the right whereas article 359 suspends the remedy. If the contention of the learned Attorney 847 General be accepted	 both have the same effect: if that was the intention of the makers of the Constitution	 they would not have expressed themselves in different ways in the two articles. Where they intended to suspend the right	 they expressly said so	 and where they intended only to suspend the remedy	 they stated so. We cannot	 therefore	 accept this contention. At this stage I may also notice the argument of the learned Attorney General that article 359	 by enabling the President to suspend the right to move for the enforcement of the fundamental rights mentioned therein	 impliedly permitted Parliament to make laws in violation of those fundamental rights in respect whereof the right to move the court is suspended. I cannot appreciate this argument. It is one thing to suggest that in view of the amplitude of the phraseology used in article 359	 the right to move for the enforcement of fundamental rights infringed by a void law	 even deliberately made by Parliament	 is suspended but it is a different thing to visualize a situation when the Constitution permitted Parliament under the shelter of executive fiat to make void laws. Indeed	 a comparison of article 358 and article 359 I shall deal with them in detail later on indicates the contrary. I cannot for a moment attribute to the august body	 the Parliament	 the intention to make solemnly void laws. It may have made the present impugned Act bona fide thinking that it is sanctioned by the provisions of the Constitution. Whatever it may be	 the result is	 we have now a void Act on the statute book and under that Act the appellants before us have been detained illegally. To use the felicitous language of Lord Atkin	 in this country "amid the clash of arms	 the laws are not silent; they may be chanced	 but they speak the same language in war as in peace". The tendency to ignore the rule of law is contagious	 and	 if our Parliament	 which unwittingly made a void law	 not only allows it to remain on the statute book	 but also permits it to be administered by the executive	 the contagion may spread to the people	 and the habit of lawlessness	 like other habits	 dies hard. Though it is not my province	 I venture to suggest	 if I may	 that the Act can be amended in conformity with our Constitution without it losing its effectiveness. This leads us to the question whether the appellants	 948 who are illegally detained	 can move this Court under article 32 of the Constitution or the High Court under article 226 thereof or under section 491 of the Code of Criminal Procedure	 hereinafter called the Code. It would be convenient at this stage to read the relevant provisions of the Constitution. Article 32.(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. * * * * (3)Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2)	 Parliament may by law empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). (4)The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution. Article. 226 (1) Notwithstanding anything in article 32	 every High Court shall have power	 throughout the territories in relation to which it exercises jurisdiction	 to issue to any person or authority	 including in appropriate cases any Government	 within those territories directions	 orders or writs	 including writs in the nature of habeas corpus	 mandamus	 prohibition	 ' quo warranto and certiorari	 or any of them	 for the enforcement of any of the rights conferred by Part III and for any other purpose. (2)The power conferred on a High Court by clause (1) shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32. Article 358. While a Proclamation of Emergency is in operation nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in the Part be competent to make or to take	 but any law so made shall	 to the extent of the incompetency	 cease to have effect as soon as the Proclamation ceases to operate	 849 except as respects things done or omitted to be done before the law so ceases to have effect. Article 359 (1) Where a Proclamation of Emergency is in operation	 the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. Article 33 confers power on Parliament to modify the rights conferred by Part III in their application to Armed Forces or the Forces charged with the maintenance of public order; article 34 enables Parliament to impose restrictions an the rights conferred by Part III while martial law is in force in any area. The contention of learned counsel for the appellants on the construction of the said provisions may be classified under the following heads: (1) article 358 permits the State to make laws only in infringement of article 19 of the Constitution	 and article 359 suspends only the right to move the enforcement of the fundamental rights specified in the President 's Order and	 therefore	 article 359 cannot be so construed as to enlarge the legislative power of Parliament beyond the limits sanctioned by article 358 and	 therefore	 it should be confined only to executive infringements of the said rights. (2) Article 359 does not permit the executive to commit fraud on the Constitution by doing indirectly what Parliament cannot do directly under article 358 and article 13(2) of the Constitution. (3) For invoking article 359 two conditions must be complied with	 namely	 (i) the party shall have a right to move any court	 and (ii) only for the enforcement of the rights conferred by Part III. Such a right to move for such a relief is expressly conferred by the Constitution under article 32. Therefore	 the President 's order under article 359 would only suspend the right to move under article 32 and not for approaching the Court under article 226 of the Constitution. In any view	 those words are inappropriate to a pre existing statutory right under section 491 of the Code. 850 To appreciate the contentions from a correct perspective it is necessary at the outset to notice the nature of the fundamental rights enshrined in the Constitution and the remedy or remedies provided for their enforcement. It would be pedantic to go into the question whether fundamental rights provided for under our Constitution are natural rights or primordial rights : whatever their origin might have been and from whatever source they might have been extracted	 they are enshrined in our Constitution in Part III and described as fundamental rights. The constitution declared under article 13(2) that the State shall not make any law taking away or abridging the said rights and any law made in contravention of this clause shall be void to the extent of the contravention. After declaring such a law void	 it proceeds to provide for the mode of enforcement of the said rights. Article 32(1) makes the right to move the Supreme Court by appropriate proceedings for the enforcement of the said rights a guaranteed right. Appropriate proceedings are described in cl. (2) thereof	 that is to say	 a person can move the said Court for directions	 orders	 or writs in the nature described thereunder for the enforcement of any of the said rights. The right to move	 therefore	 is regulated by the procedure prescribed thereunder. Article 226	 though it does not find a place in Part III of the Constitution	 confers a power on every High Court throughout the territories in relation to which it exercises jurisdiction to issue such directions	 orders	 or writs in the nature described thereunder for the enforcement of any of the rights conferred by Part III. There is a material difference between article 32 and article 226 of the Constitution	 namely	 while in article 32 the right to move the court is guaranteed	 under article 226 no such guarantee is given. But a fair construction of the provisions of article 226 indicates that the right to move	 though not guaranteed	 is necessarily implied therein. As I have pointed out	 under article 32 the right to move the Court is given a practical content by the provision indicating the different modes open to the person who has the said right to approach the Supreme Court. Article 226 employs the same procedure for approaching the High Court and that procedure must necessarily be for the exercise of the right to move that 851 court. When a power is conferred upon the High Court and a procedure is prescribed for a party to approach that court	 it is reasonable to imply that the person has a right to move that court in the manner prescribed thereunder. The only difference between article 32 and article 226 is that the Supreme Court cannot say	 if it is moved in the manner prescribed	 that it will not decide on merits	 but the High Court	 in exercise of its jurisdiction can do so. The decision on merits is left to its discretion	 though the exercise of that discretion is regulated by convention and precedent. Further	 article 32(3) also enables Parliament to make a law empowering any other court to exercise within the local limits of itsjurisdiction all or any of the powers exercisable by theSupreme Court under cl. (2) thereof. One thing to benoticed is that Parliament can only empower any othercourt to exercise any of the powers exercisable under cl.(2) ; it cannot confer the guaranteed right mentioned in cl. (1) on any person to move that court. That is to say	 the court or courts to which such powers are given would be in the same position as the High Court in respect of the enforcement of the fundamental rights. To put it shortly	 no person will have a guaranteed right to move any such other court for the enforcement of fundamental rights. A discretionary jurisdiction similar to that of the High Court can only be conferred on them. For the same reason given in the case of the High Court	 an aggrieved party will also have a right to move those courts in the manner prescribed. This analysis leads us to the following position Under the Constitution every person has a right to move	 for the enforcement of a fundamental right	 the Supreme Court	 the High Courts or any other court or courts constituted by Parliament by law in the manner prescribed i.e.	 by one or other of the procedural writs or directions or orders described thereunder. With this background let me have a close look at the provisions of article 359. The expressions used in article 359 are clear and unambiguous. Three expressions stand out in bold relief	 namely	 (i) "right to move"	 (ii) "any Court"	 and (iii) "for the enforcement of such of the rights conferred by Part III". "Any Court" implies more 852 than one court	 but it cannot obviously be any court in India	 for it must be a court where a person has a right to move for the enforcement of the fundamental rights. It can	 therefore	 be only the Supreme Court	 High Court or the courts or courts constituted by Parliament under article 32(3). If the contention of learned counsel for the appellants be accepted	 the expression "court" should be confined to the Supreme Court. But the Article does .not say either Supreme Court or that the right to move is the guaranteed one under article 32(1). The next question is	 what do the words "right to move" mean? The right to move is qualified by the expression "for the enforcement of such of the rights conferred by Part 111". Therefore	 the right to move must be a right to move the Supreme Court or the High Court in the manner prescribed by article 32(2) or article 226(1) of the Constitution for the enforcement of the fundamental rights. The words in the second limb of the Article viz.	 that "all proceeding.s pending in any court for the enforcement of the rights so mentioned shall remain suspended" only relate to the proceedings instituted in exercise of the said right : they do not throw any light on the scope of the "right to move '. This construction gives full meaning to every expression used in the Article. if so construed	 it can only mean that the temporary bar that can be imposed by an order of the President is not confined only to the guaranteed right of a person to move the Supreme Court for the enforcement of his fundamental rights	 but also extends to the right of a person to move the High Court or the Court or Courts constituted by Parliament for the enforcement of such of the fundamental rights as mentioned in the order. I would	 therefore	 hold that the President 's order under article 359 suspending the right to move any court in respect of specified fundamental rights includes not only the right to move under article 32 but also that under article 226. The more difficult question is whether article 359 can be so construed as to empower the President to suspend all actions which a person may take under a statute or common law	 if he seeks thereby to protect his liberty against unlawful encroachment by State or its officers. To put it in other words	 can a person	 who is illegally 853 detained under a void law	 approach the High Court under section 491 of the Code or file a suit in a civil court for damages for illegal confinement or take any other legal proceedings open to him? Learned Attorney General contends that "any court" in article 359 means any court in India and that the expression "enforcement of fundamental rights" implies any relief asked for by a party if the granting of such relief involves directly or indirectly a decision on the question whether any of the fundamental rights specified in the President 's order has been infringed. This argument	 if I may say so	 completely ignores the scheme of the Constitution. Under the Constitution	 a person may have three kinds of rights	 namely	 (i) fundamental rights	 (ii) constitutional rights	 and (iii) statutory or common law rights. Under article 32(1) a person has a fundamental right to move the Supreme Court for enforcement of his fundamental rights; under article 226	 a person has a constitutional right to move the High Court for the enforcement of the said rights. Parliament	 by law	 in exercise of its powers conferred on it under article 245	 may confer a right on a person to move any court for a relief wider in scope than that provided by article 32 or article 226 of the Constitution. Though Parliament may not have power	 except in the cases specified to circumscribe the fundamental rights enshrined in Part III it can certainly make a law enlarging the content of the substantive and procedural rights of parties beyond those conferred by Part III. Under this category there may also be laws made by competent authority before the commencement of the Constitution	 but continued under article 372	 which do not any way infringe the fundamental rights created by the Constitution. Section 491 of the Code is one of the pre Constitution statutory provisions continued under article 372 of the Constitution. It does not in terms posit any right to move the High Court for the enforcement of fundamental rights. Therefore	 the argument of the learned Attorney General involves considerable strain on the express language of article 359	 for	 he in effect asks us to equate the expression "a right to move for the enforcement of fundamental rights" with any relief asked for in any proceedings in any court	 whether initiated at the instance of the party affected or not	 854 or whether started suo motu by the court	 if it involves a decision on the question whether a particular law was void for the reason that it infringed the fundamental rights mentioned in the President 's order. In support of this contention he presses on us to hold that in days of stress and strain i.e.	 when there is a threat of war and conse quently an emergency is declared	 a court has to adopt the principle of "strained construction" which will achieve the object behind article 359 of the Constitution and the order issued by the President. I shall briefly examine the decisions cited by him to ascertain whether any such novel doctrine of construction of statutes exists. Rex vs Halliday(1) is a decision of the House of Lords made in 1917 i.e.	 during the First World War. Regulation 14B of the Defence of the Realm (Consolidation) Regulation	 1914	 empowered the Secretary of State to order the internment of any person of hostile origin or associations	 where on the recommendation of a competent naval or military authority it appeared to him expedient for securing the public safety or the defence of the realm. This regulation was authorized by the Defence of the Realm Consolidation Act	 1914	 section 1	 sub section 1. The House of Lords	 by a majority	 held that the Act conferred upon 	 the King In Council power	 during the continuance of the war	 to issue regulations for securing the public safety and the defence of the realm and	 there fore	 the regulation was valid. It was urged there that no such restraint of personal liberty should be imposed except as a result of judicial enquiry. It was also contended that if the Legislature intended to interfere with personal liberty it should have provided for suspending the right of the subject as to the writ of heabeas corpus. The argument was negatived. Lord Atkin observed "The subject retains every right which those statutes confer upon him to have tested and determined in a Court of law	 by means of a writ of Habeas Corpus		 addressed to the person in whose custody he may be	 the legality of the order or warrant by virtue of which he is given into or kept in that custody. If the Legislature chooses to enact that he can be deprived of his liberty and incarcerated or (1) ; 	 272. 855 interned for certain things for which he could not have been heretofore incarcerated or interned	 that enactment and the orders made under it	 if intra vires	 do not infringe upon the Habeas Corpus Acts in any way whatever	 to take away any rights conferred by Magna Charta	 for the simple reason that the Act and these Orders become part of the law of the land. " This decision does not lay down any new rule of cons truction. Parliament is supreme in England. It its wisdom it did not take away the habeas corpus	 but empowered the executive to issue regulations for public safety and defence of the nation. The regulation made did not exceed the power conferred by the Parliament. The House of Lords held that the detention was in accordance with law. Nor does the controversial decision in Liverside vs Sir John Anderson(1)	 which was the subject of servere criticism in later years	 lay down any such new rule of construction. There	 the Secretary of State	 acting in good faith under reg. 18B of the Defence (General) Regulations	 1939	 made an order in which he recited that he bad reasonable cause to believe a person to be of hostile associations and that by reason thereof it was necessary to exercise control over him and directed that that person be detained. The validity of the detention turned upon the construction of the express provisions of reg. 18B of the said Regulations. In that regulation the expression used was "reasonable cause to believe any person to be of hostile origin". The House of Lords	 by a majority	 held that the expression meant that "the Secretary of State thinks fit to be reasonable". There was a powerful dissent by Lord Atkin on the question of construction. With the correctness of the construction put upon by the majority on the said provision we are not concerned ; but none of the learned law Lords laid down in their speeches any new rule of construction peculiar to war conditions. Viscount Maugham observed : "My Lords	 I think we should approach the construction of reg. 18B of the Defence (General) Regulations without any general presumption as to its (1) ; 	 219	 251. 856 meaning except the universal presumption	 applicable to Orders in Council and other like instruments	 that	 if there is a reasonable doubt as to the meaning of the words used	 we should prefer a construction which will carry into effect the plain intention of those responsible for the Order in Council rather than one which will defeat that intention." Lord Atkin	 in his dissenting judgment	 protested against the strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister. Then he proceeded to observe : "The words have only one meaning. They arc used with that meaning in statements of the common law and in statutes. They have never been used in the sense now imputed to them." These observations by the dissenting Lord may at the most indicate that the majority in fact put a strained cons truction on the express words used in the regulation; but they do not show that they have laid down any such rule of construction. This is made clear by Lord Macmillan when he stated: "In the first place	 it is important to have in mind that the regulation in question is a war measure. This is not to say that the courts ought to adopt in wartime canons of construction different from those Which they follow in peace time. The fact that the nation is at war is no Justification for any relaxation of the vigilance of the courts in seeing that the law is duly observed	. especially in a matter so fundamental as the liberty of the subject matter the contrary. But in a time of emergency when the life of the whole nation is at stake it may well be that a regulation for the defence of the realm may quite properly have a meaning which because of its drastic invasion of the liberty of the subject the courts would be slow to attribute to a peace time measure. The purpose of the regulation is to ensure public safety	 and it is right so to interpret emergency legislation as to promote rather than to defeat its efficacy for the defence of the realm. That is in accordance with a general rule applicable to the interpretation of 857 all statutes or statutory regulations in peace time as well as in war time. " These observations should be understood in the background of the earlier observation : "I do not agree that the critical phrase in the context in which I find it is susceptible only of one meaning	 namely that for which the appellant contends. Were it so it would be strange that several learned judges should have found it to possess quite a different meaning." This judgment	 therefore	 is no authority for the position for which it is relied upon. The decision in substance says that the rule of construction of a statute is the same both in peace time and in war time and that when there is an ambiguity in the expressions used	 the court may give such meaning to the words used which are capable of bearing that meaning as would promote rather than defeat the object of the legislation. Indeed	 the Privy Council	 in Nakkuda Ali vs Jayaratna(1)	 confined the interpretation put upon reg. 18B of the Defence (General) Regulations	 1939	 by a majority of the House of Lords to the particular cricumstances of that case and they did not accept that construction when similar words were used in the Regulation 62 of the Defence (Control of Textiles) Regulations	 1945. I cannot	 therefore	 hold that the said decisions suggested a new rule of construction peculiar to war measures. The rules of construction are the same in war time as well as in peace time. The fundamental rule of construction is that the courts have to find out the expressed intention of the Legislature from the words of the enactment itself. Where the language is unambiguous	 no more is necessary than to expound those words in their natural and ordinary sense. But where the words are ambiguous and reasonably capable of bearing two meanings	 the court may be justified in adopting that meaning which would further the intention of the Legislature rather than that which would defeat it. In the present case we are not dealing with a war measure	 but a constitutional provision which was designed to govern the affairs of our country for all times so (1) L.R. 1 55 2 S C India/64. 858 long the Constitution remains in force ; and it cannot certainly be strained to meet a passing phase in a country 's life. A strained construction put upon a statutory provison to meet a particular emergency may be rectified by a subsequent enactment. But such a construction put upon a constitutional provision might entail serious consequences. Even if Liversidge 's case(1) had laid down a new rule of construction	 that construction cannot be invoked in the case of a constitutional provision. In Gibbons vs Ogden(2) the following rule of construction of a constitutional provision is stated : "That which the words declare is the meaning of an instrument ; and neither Courts nor legislatures have the right to add or to take away from that meaning. This is true of every instrument	 but when we arc speaking of the most solemn and deliberate of all human writings those which ordain the fundamental law of states	 the rule rises to a very high degree of significance. It must ' be very plain	 nay absolutely certain	 that the people did not intend what the language they have employed in its natural signifi cation	 imports	 before a Court will feel itself at liberty to depart from the plain reading of a constitutional pro vision. " No doubt a constitution should receive a fair	 liberal and progressive construction so that the true objects of the instrument may be promoted ; but such a construction could not do violence to the natural meaning of the words used in particular provision of the Constitution. The relevant provisions of section 491 of the Code read (1) Any High Court may	 whenever it thinks fit	 direct (a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law ; (b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty * * * * Bearing in mind the said rules of construction	 I ask myself the question whether the exercise of the power un (1) ; (2) ; 859 der section 491 of the. Code can be equated with a right to move the High Court to enforce such of the fundamental rights conferred by Part III of the Constitution as may be mentioned in the order of the President. It is necessary to ascertain the correct scope of the section to answer the question raised before us. The section is framed in wide terms and a discretionary power is conferred on the High Court to direct one or other of the things mentioned therein "whenever it thinks fit". Unlike article 32 and article 226	 the exercise of the power is not channelled through well recognized procedural writs or orders. With the result the technicalities of such procedural writs do not govern or circumscribe the court 's discretion. A short history of this section reinforces the said view. Originally	 the Supreme Courts in India purported to exercise the power to issue a writ of habeas corpus which the Kings ' Bench Division in England exercised. In 1861 Parliament passed Acts 24 25 Vict. 104 authorising the establishment of High Courts of judicature in India. The Letters Patents issued under that Act in 1865 were expressly made subject to the legislative powers of the Governor General in Council. The courts were given the same jurisdiction	 power and authority which the Supreme Courts possessed but subject to the legislative power of the Governor General in Council. Pursuant to the power so conferred	 the Governor General in Council passed successive Codes of Criminal Procedure in the years 1872	 1875	 1882;and	1898	 and in 1923 by the Criminal Law (Amendment) Act	 some of the provisions of the Code of 1898 were amended. The High Courts Act of 1861 authorized the Legislature	 if it thought fit	 to take away the powers which the High Courts exercised as successor to the Supreme Courts	 and Acts of Legislatures passed in 1872 and subsequent years had taken away the power of the High Courts to issue prerogative writs ; and instead a statutory power precisely defined was conferred upon the High Courts. That statutory power underwent various changes and finally took the form of section 491 of the Code	 as at present it stands. The attempt to resuscitate the prerogative writs was rejected by the Calcutta High Court in Girindra Nath Banerjee vs Birendra Nath Pal(1) and (1) Cal. 727. 860 by the Madras High Court in District Magistrate	 Trivandrum vs Mammen Mappillai(1). The Privy Council in Matten vs District Magistrate	 Trivandrum(2) approved the said decisions and held that the said Act. 		 have taken away the power of the High Courts to issue prerogative writs and thereafter the only power left in the High Court was that conferred by the statute. By reason of article 372 of the Constitution	 the Code of Criminal Procedure	 including section 491 thereof	 continued to be in force until altered	 repealed or amended by the competent Legislature or other competent authority. Article 225 of the Constitution expressly preserved the High Courts ' powers and jurisdiction	 subject to other provisions thereof. Admittedly	 Parliament has not made any law repealing section 491 of the Code. The statutory power conferred on the High Courts under that section is not inconsistent either article 32 or with article 226 or with any other Article in Part III or any other Chapter of the Constitution. So	 it cannot be held that section 491 of the Code has been impliedly superseded by article 226 even to the extent it empowers the High Court to give relief to persons illegally detained by the State. Now what is the scope of that section? Though section 491 of the Code is remedial in form	 it postulates the existence of the substantive right. In India	 as in England	 the rule of law was the accepted principle. No person can be deprived of his liberty except in the manner prescribed by the law of the land. If a person is illegally or improperly detained in violation of the law of the land	 the High Court can direct his release "whenever it thinks fit" so to do. The section prima facie does not predicate a formal application ; nor does it insist that any particular person shall approach it. The phraseology used is wide enough for the exercise of the power suo motu by the High Court. Nor does the section introduce an antithesis between the exercise of jurisdiction on application and that exercised suo motu ; that is to say	 even if an application was filed before the High Court and for one reason or other	 no orders could be passed thereon	 either because of procedural defect or because it was not pressed	 (1) L.I.R. (2) L.R. (1939) 66 I.A. 222. 861 nothing prevents the High Court from acting suo motu 	on the basis of the information brought to its notice. It is said that various High Courts framed rules regulating the procedure of the respective High Courts	 but that fact is not much relevance in the matter of construing the section. Shortly stated	 the High Court is given an absolute discretion to direct a person	 who has been illegally detained	 to be released	 whenever that fact is brought to its notice through whatever source it may be. This juris diction existed long before the Constitution was made and long before the fundamental rights were conferred upon the people under the Constitution. The rights	 substantive as well as procedural	 conferred under Part III and article 226 on the one hand and under section 491 of the Code on the other	 are different. Under articles 32 and 226	 an affected party can approach the Supreme Court or the High Court	 as the case may be	 only in the manner prescribed under article 32(2) or article 226 i.e.	 by way of writs and orders mentioned therein : he must ask the court for the enforcement of this fundamental right. The relief implies that he must establish that he has a fundamental right	 that his fundamental right has been infringed by the State and	 therefore	 the Court should give the appropriate relief for the enforcement of that right. Both the right as well as the procedure are the creatures of the Constitution. Whereas section 491 of the Code assumes the existence of the "rule of law" and confers a power on the High Court to direct persons in illegal detention to be set at liberty. It is not bound by any technical procedures envisaged by the Constitution. If a person approaches the High Court alleging that he or some other person has been illegally detained	 the Court calls upon the detaining authority to sustain the validity of the action. The onus of proof lies on the custodian to establish that the person is detained under a legal process ; but if it fails to establish that the person is detained under law	 the said person may be released. It is true that the detaining authority will have to satisfy the court that the law under which the detention is made is a valid one. It may also be true that in scrutinizing the validity of that law the court has to go into the question whether the law offends any of the fundamental rights mentioned 862 in Part III of the Constitution. But that circumstance does not by any process of involved reasoning make the said proceeding one initiated in exercise of the right to move the High Court for the enforcement of the petitioner 's fundamental right. The distinction between the two lies in the fact that one is an enforcement of a petitioner 's fundamental right and the other	 a decision on the unconstitutionality of a law because of its infringement of fundamental rights generally. Further	 the right and the relief have a technical and specific significance given to them by the Constitution. They cannot be equated with the mode of approach to the High Court under section 491 of the Code or with the expression"whenever it thinks fit" confers an absolute discretionon the court to exercise its power thereunder or not todo so	 having regard to the circumstances of each case. While the word "may" used in a statute was sometimes construed as imposing a duty on the authority concerned on whom a power is conferred to exercise the. same if the circumstances necessitated its exercise	 the expression "whenever it thinks fit" does Rot warrant any such limitation on its absolute discretion. Though ordi narily a High Court may safely be relied upon to exercise its powers when the liberty of a citizen is illegally violated by any authority	 the said unlimited discretion certainly enables it in extraordinary circumstances to refuse to come to his rescue. The absolute discretionary jurisdiction conferred under section 491 of the Code cannot be put on a par with the jurisdiction conferred under article 226 of the Constitution hedged in by constitutional limitations ' A brief reference to decided cases on the scope of section 491 of the Code will make my meaning clear. In Alam Khan vs The Crown(1)	 the Full Bench of the Lahore High Court has defined the scope of section 491 of the Code. Ram Lall	 J.	 who spoke for the majority	 stated	 after quoting the relevant part of the section "The language of the section places no limit on the class of person or persons who can move a High Court with relation to a person in custody and if the (1) Lahore 274	 303. 863 High Court on hearing the petition thinks fit. to do so	 may make an order that he be dealt with according to law. " In Ramji Lal vs The Crown(1)	 a Full Bench decision of the East Punjab High Court	 Mahajan	 J.	 as he then was	 defined the wide scope of the section thus "Whatever may be the state of English law on the subject so far as section 491 of the Criminal Procedure Code is concerned it has been very widely worded and confers Jurisdiction on the Court to issue directions whenever it thinks fit. The Court may be moved by the prisoner or by some relation of his	 or it may act suo motu if it acquires knowledge that a certain person has been illegally detained. The mode and manner in which the judge has to be satisfied cannot affect the Jurisdiction conferred on him under section 491 of the Criminal Procedure Code. " In King Emperor vs Vimlabai Deshpande(2)	 a police officer made an arrest of the respondents under sub rule I of r. 129 of the Defence of India Rules	 1939	 which read : "Any police officer. . may arrest without warrant any person whom he reasonably suspects of having acted. . (a) in a manner prejudicial to the public safety or to the efficient prosecution of the war." ' The Judicial Committee held that the burden was upon the police officer to prove to the satisfaction of a court before whom the arrest was challenged that he had reasonable grounds of suspicion and that if he failed to discharge that burden	 an order made by the Provincial Government under sub rule 4 of r. 129 for the temporary custody of the detenu was invalid. As the police officer failed to discharge the onus	 the Privy Council held that the High Court was right in ordering the release of the person from custody under section 491 of the Code of Criminal Procedure. This shows that when a person is detained by a police officer	 the burden of establishing that the detention is valid is on him. These authorities well establish that section 491 of the Code does not contemplate any right to move a court by any affected party	 but the court can exercise the (1) I.L.R. (1949). II E.P. 28	 54. (2) (1946) L.R. 73 I.A. 144. 864 statutory power whenever it thinks fit	 if the fact of illegal detention of a person is brought to its notice. The problem may be approached from a slightly different perspective. Three questions may be posed	 namely	 (1) has any person the right to move the High Court under section 491 of the Code to enforce his fundamental right? (2) would it be necessary for a person detained or any other on his behalf to allege that the detenu has a fundamental right and that it has been infringed by State action and seek a relief for enforcement of that right? (3) would it be obligatory on the Court to enforce the right if the said right had been established? All the questions must be answered in the negative. Under section 491 of the Code there is neither a right in the person detained to move the High Court for the enforcement of the fundamental right nor there is an obligation on the part of the High Court to give the said relief. It is only a discretionary jurisdiction conceived as a check on arbitrary action. There is another aspect of the question. Article 359 has nothing to do with statutory powers conferred by Parliament. Article 359 expressly deals with the constitutional right to move a court and the constitutional enforcement of that right. So far as ordinary laws are concerned	 Parliament can always amend the law	 having regard to the circumstances obtaining at a particular point of time ; for instance	 Parliament could have amended section 491 of the Code by repealing that section altogether or by suitably amending it. Briefly stated	 article 359 provides for the suspension of some constitutional rights in the manner prescribed thereunder. The statutory rights are left to be dealt with by the appropriate Legislature in exercise of the powers conferred on them. The argument that the intention of the makers of the Constitution in enacting article 359 would be defeated	 if section 491 of the Code was salvaged	 does not appeal to me. If Parliament had amended section 491 of the Code	 which it should have done if it intended to do so	 this alleged anomaly pointed outby the learned Attorney General could not have arisen. I would	 therefore	 hold that the expression "rightto move any Court for the enforcement of such of the rights conferred by Part III" could legitimately refer 865 only to the right to move under article 32 or article 226 of the Constitution for the said specific relief and could not be applied without doing violence to the language used to the exercise of the statutory power conferred on the High Courts under section 491 of the Code. If that be so	 the expression "all proceedings pending in any Court for the enforcement of the rights" used in the second limb of article 359 must also necessarily refer to proceedings initiated in exercise of the right to move envisaged in the first limb of the article. I shall now proceed to consider some of the minor points raised at the Bar. Another argument advanced on behalf of the respondents may also be briefly noticed. It is said that while article 358 maintains the legislative incompetency to make laws in derogation of fundamental rights other than those enshrined in article 19	 Art	 359 enables the President by an indirect process to enlarge the said legislative competency and	 therefore	 article 359 must be so read as to confine its scope only to executive acts. I cannot agree. Article 359 does not ex facie enlarge the legislative competency of Parliament or a State Legislature. It does not enable them to make laws during the period covered by the order of the President infringing the fundamental rights mentioned therein. It does not empower the Legislatures to make void laws ; it only enables the President to suspend the right to move the Court during the period indicated in his order. Once that period expires	 the affected party can move the Court in the manner prescribed by the Constitution. Despite article 358 it may happen that void laws are made and executive actions are taken inadvertently or otherwise ; and article 359 is really intended to put off the enforcement of the rights of the people affected by those laws and actions till the expiry of the President 's order. The invalidity of the argument would be clear if it was borne in mind that article 358 also saved executive acts infringing article 19	 but nonetheless article 359 gave protection against the exercise of the right to move any court in respect of such acts not saved by article 358. If the infringement of fundamental rights by executive action not saved by article 358 could not be a basis for the exercise of a right to move during the period of suspension	 866 by the same token	 laws not saved by article 358 could not equally be the basis for such an action during the said. period. Be it as it may	 the phraseology of article 359 is wide enough to comprehend laws made in violation of the specified fundamental rights. Another argument advanced is	 while article 358 read with article 13(1) and (2)	 maintained the constitutional position that all laws infringing fundamental rights other than that enshrined in article 19 would be void during the emergency	 the President by issuing the order he did	 indirectly	 in effect and substance	 validated the laws infringing Arts.14	 21 and 22	 and	 therefore	 the issuing of the said order must be held to be a fraud on hi s powers. This argument has no merits. It is based upon a misapprehension of the doctrine of fraud on powers. In the context of the application of the doctrine to a statutory law	 this Court observed in Gullapally Nageswara Rao vs Andhra Pradesh Road Transport Corporation(1) thus : "The legislature can only make laws within its legislative competence. Its legislative field may be circumscribed by specific legislative entries or limited by fundamental rights created by the Constitution. The legislature can not overstep the field of its competency	 directly or indirectly. The Court will scrutinize the law to ascertain whether the legislature by device purports to make a law which	 though in form appears to be within its sphere	 in effect and substance	 reaches beyond it. If	 in fact it has power to make the law	 its motives in making the law are irrelevant. " To the same effect are the observations in Gajapati Narayan Deo vs The State of Orissa(2). On the same analogy	 the President cannot overstep the limits of his power defined under article 359 of the Constitution. So long as he does not exceed his power	 the effect of his order made within bounds could not conceivably sustain the plea of fraud on powers. Fraud on power implies that a power not conferred is exercised under the cloak of a power conferred. But if an act can legitimately be referred to a power conferred the intention of the person exercising (1) [1959] Supp. 1 S.C.R. 319	 329. (2 ) ; 867 the power or the effect of his exercise of the power is ir relevant. Now	 on the construction placed by me on article 359	 the President has clearly the constitutional power ' to suspend the aforesaid right. The fact that Parliament by taking shelter under that order may enforce void laws cannot make a valid exercise of a power of the President one in fraud of his power. The next argument is that the order issued by the President is in excess of the powers conferred under article 359 of the Constitution. Under article 359	 the argument proceeds	 the order made by the President can relate to a period or the whole or a part of the territory of India and cannot be confined to a class of persons. As the order is restricted to persons that have. been deprived of their rights under the Defence of India Ordinance	 it is said that it is not sanctioned by the provisions of article 359. There are no merits in this contention. Under the order the right to move for the enforcement of the rights mentioned therein is suspended during the period of emergency and it applies to the entire country. The fact that only persons	 who are deprived of their rights under the Defence of India Ordinance	 cannot exercise their right to move the Court does not make the order one confined to a class of persons. The Ordinance has force throughout India and ex hypothesis only persons affected would move the Court. That does not mean that the order is confined only to a class of persons. The next contention is that the impugned section suffers from the vice of excessive delegation and that in any view the relevant rules framed are in excess of the power conferred upon the Government by the said Act. I cannot agree with either of the two contentions. On this aspect I have nothing more to add to that found in the judgment of my learned brother. But the order made by the President still leaves the door open for deciding some	 questions even under article 32 or article 226 of the Constitution. The order is a conditional one. 	 In effect it says that the right remains suspended if such person has been deprived of any such right under the Defence of India Ordinance	 1962	 or under any rule or order made thereunder. The condition is that the person should have been deprived of a right under the 868 Defence of India Ordinance or under any rule or order made thereunder. If a person was deprived of such a right not under the Ordinance or a rule or order made thereunder	 his right would not be suspended. If the order was made in excess of the power conferred upon the Government by the said Ordinance	 it would not be covered by that order. If the detention was made mala fide	 it would equally be not an order made under the Ordinance. My view on the basis of the aforesaid discussion may be stated thus : (1) The detenus cannot exercise their right to enforce their fundamental rights under articles 21	 22 and 14 of the Constitution	 during the period for which the said right was suspended by the President 's order. (2) This does not preclude the High Court to release the detenus in exercise of its power under section 491 of the Code of Criminal Procedure	 if they were imprisoned under a void law	 though the voidness of the law arose out of infringement of their fundamental rights under articles 14	 21 and 22 of the Constitution. (3) The President 's order does not preclude	 even under article 32(1) and article 226 of the Constitution	 the petitioners from proving that the orders of detention were not made under the Defence of India Ordinance or the Act either because they were made	 (i) outside the provisions of the Ordinance of the Act	 or (ii) in excess of the power conferred under them	 or (iii) the detention were made mala fide or due to a fraudulent exercise of power. I would close with a few observations. In the view I have taken. there are three courses open to Parliament : either it can make a valid law without infringing the fundamental rights other than those enshrined in article 19 or amend section 491 of the Code in order to maintain the enforcement of void laws	 or do both. It is not for me to suggest the right course. In the result	 the petitions will now go to the Constitution Bench for disposal on the said questions. ORDER BY COURT In accordance with the opinion of the majority the constitutional points raised in the Appeals are dismissed. Appeals to be set down individually before a Constitution Bench for dealing with the other contentions raised in each one of them.

Summary:
The appellants were detained under r. 30(l) of the Defence of India Rules made by the Central Government under section 3 of the Defence of India Ordinance	 1962. They applied to the Punjab and Bombay High Courts under section 491(1)(b) of the Code of Criminal Procedure and their case was that sections 3(2)(15)(i) and 40 of the Defence of India Act	 1962	 and r. 30(1)(b) of the Defence of India Rules	 which were continued under the Act	 were unconstitutional and invalid inasmuch as they contravened their fundamental rights under articles 14	 21	 22(4)	 (5) and (7) of the Constitution and that	 therefore	 they should be set at liberty. The High Courts held that the Presidential Order which had been issued on November 3	 1962	 under article 359(1) of the Constitution	 after a declaration of emergency under article 352	 consequent on the Chinese invasion of India	 barred their right to move the said petitions and dismissed them. These appeals raised two common questions in this Court	 (1) what was the true scope and effect of the Presidential Order issued under article 359(1)	 and (2) did the bar created by the Order operate in respect of the applications under section 491(1)(b) of the Code. The Presidential Order was as follows: "G.S.R. 1464 In exercise of the powers conferred by cl. (1) of article 359 of the Constitution	 the President hereby declares that the right of any person to move any court for the enforcement of the right conferred by article 21 and article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of article 352 thereof on the 26th October 1962 is in force	 if such person has been deprived of any such rights under the Defence of India Ordinance	 1962 (4 of 1962) or any rule or order made thereunder. " By a later amendment of the Order article 14 was incorporated into it. 798 Held:(per Gajendragadkar	 Sarkar	 Wanchoo	 Hidayatullah	 Das Gupta and Shah	 JJ.) that the proceedings taken by the appellants in the High Courts under section 491(1)(b) of the Code were hit by the Presidential Order and must be held to be incompetent. Article 359 of the Constitution was not capable of two interpretations and it was	 therefore not necessary to decide the controversy raised by the parties as to whether that Article should be interpreted in favour of the President 's power granted by it or the fundamental rights of the citizens. The King (At the Prosecution of Arthur Zadig) vs Halliday	 ; 	 Liversidge vs Sir John Anderson	 ; 	 Keshav Talpade vs The King Emperor	 [1943] F.C.R. 49	 Nakkuda Ali vs M. F. De section Jayaratne	 and King Emperor vs Vimalabal Deshpande	 L.R. 73 1. A. 144	 considered. The words 'any court ' in article 359(1)	 construed in their plain grammatical meaning	 must mean any court of competent jurisdiction including ' the Supreme Court and the High Courts before which the rights specified in the Presidential Order can be enforced. It was not correct to say that the use of the words was necessary so as to include such other courts as might be empowered in terms of article 32(3). Nor was it correct to say that the words could not include a High Court as its power to issue a writ under article 226(1) was discretionary. In judging whether a particular proceeding fell within the purview of the Presidential Order the determining factor was not its form nor the words in which the relief was couched but the substance of it. If in granting the relief the court had to consider whether any of the fundamental rights mentioned in the Presidential Order	 had been contravened	 the proceeding was within the Order	 whether it was under article 32(l) or 226(1) of the Constitution. The right to move the court for writ of habeas corpus under section 491(1)(b) of the Code of Criminal Procedure was now a statutory right and could no longer be claimed under the common law. Girindra Nath Banerjee vs Birendra Nath Pal I.L.R. 54 Cal. 727	 District Magistrate	 Trivandrum vs K. C. Mammen Map pillai	 I.L.R. 	 Matthen vs District Magistrate	 Trivandrum L.R. 66 I.A. 222 and King Emperor vs Sibnath Banerji	 L.R. 72 I.A. 241	 referred to. Since the promulgation of the Constitution the two methods by which a citizen could enforce his right of personal freedom were (i) by a writ under article 226(1) or article 32(l)	 or (ii) under section 491(1)(b) of the Code of Criminal Procedure. Whichever method he adopted if the right he sought to enforce was a fundamental right guaranteed by the Constitution the matter must	 come within article 359(1) of the Constitution. That the court could exercise its power under section 491(1)(b) suo motu could make no 799 difference and articles 372	 225 or 375 could provide no valid ground of attack. The suspension of the right to move any court	 as under the Presidential Order	 must necessarily suspend the Court 's jurisdiction accordingly. The right to challenge a detention order under section 491(1)(b) of the Code had been enlarged by the fundamental rights guaranteed by the Constitution and when a detenu relied upon such rights in his petition under that section he was in substance seeking to enforce his fundamental rights. The prohibition contained in article 359(1) and the Presidential Order must	 therefore	 apply. The expression "right to move any court" in article 359(1) and the Presidential Order takes in all legal actions	 filed or to be filed	 in which the specified rights are sought to be enforced and covers all relevant categories of jurisdictions of competent courts under which the said actions would other wise have been normally entertained and tried. Sree Mohan Chowdhury vs Chief Commissioner Union Territory of Tripura	 ; 	 referred to. Even though the impugned Act may be invalid by reason of contravention of articles 14	 21 and 22	 as contended by the appellants	 that invalidity could not be challenged during the period prescribed by the Presidential Order and it could not be said that the President could not because of such invalidity issue the order. Where	 however	 the challenge to the validity of the detention order was based on any right other than those mentioned in the Presidential Order	 the detenu 's right to move any court could not be suspended by the Presidential Order because the right was outside article 359(1). Where again the detention was challenged on the ground that it contravened the mandatory provisions of the relevant act or that it was malafide and was proved to be so and in all cases falling under the other categories of section 491(1) of the Code excepting those under section 491(1)(b)	 the bar of the Presidential Order could have no application. So also the plea that the operative provision of the law under which the order of detention was made suffered from the vice of excessive delegation	 was an independent plea not relatable to the fundamental rights mentioned in the Presidential Order and its validity had to be examined. The plea that section 3(2)(15)(i) and section 40 of the impugned Act suffered from excessive delegation must fail. The legislative policy was broad stated in the preamble and the relevant provisions of sections 3(1) and 3(2) gave detailed and specific guidance to the rule making authority and it was not correct to say that the Act had by the impugned sections delegated essentially legislative function to that authority. Rule 30(1)(b) which was consistent with the operative provisions of the Act could not also be challenged on that ground. 800 In " The etc. ; 	 Harishankar Bagla vs The State of Madhya Pradesh	 	 Bhatanagars and Co. Ltd.	 vs The Union of India	 ; 	 relied on. The impugned Act could not also he struck down as a piece of colourable legislation because the 	 was already on the Statute book. The Parliament had power under Entry 9	 List I of the Seventh Schedule to the Constitution and if in view of the grave threat to the security of India it passed the Act	 it could not be said to have acted malafide. If the Parliament thought that the executive would not be able to detain citizens reasonably suspected of prejudicial activities by a recourse to the 	 which provided for the required constitutional safeguards and the impugned Act which it enacted did not	 it could not be suggested that it was acting malafide. Even if the impugned Act contravened articles 14 and 22 and the detentions thereunder were invalid	 article 359(1) and the Presidential Order	 which were precisely meant to meet such a situation	 barred investigation on the merits during the period prescribed by the Order. The proceeding under section 491(1)(b) of the Code is one pro ceeding and the sole relief that can be claimed under it is release from the detention. If that could not be claimed because of the Presidential Order it was unreasonable to say that a mere declaration that the impugned Act and the detention thereunder were invalid could be made. Such a declaration is clearly outside the purview of section 491(1)(b) of the Code as also of articles 226(1) and 32(l) of the Constitution. The period for which the emergency should continue and the restrictions that should be imposed during its continuance are matters that must inevitably be left to the executive. In a democratic state the effective safeguard against any abuse of power in peace as also in emergency is the existence of enlightened	 vigilant and vocal public opinion. Liversidge vs Sir John Anderson	 [19421 A.C. 206	 referred to. The inviolability of individual freedom and the majesty of law that sustains it are equally governed by the Constitution which has made this Court the custodian of the fundamental rights on the one hand and	 on the other	 provided for the declaration of the emergency. Consequently	 in dealing with the right of a citizen to challenge the validity of his detention	 effect must be given to article 359(1) and the Presidential Order issued under it. The right specified in that Article must be held to include such right whether constitutional or constitutionally guaranteed and the words "any court" must include the Supreme Court and the High Court. The Punjab and the Bombay High Courts were	 therefore right in their decision that the applications under section 491(1)(b) of 801 the Code were incompetent in so far as they sought to challenge the validity of the detentions on the ground that the Act and the Rules under which the orders were made contravened articles 14	 21 and 22(4)(5) and (7) of the Constitution. Per Subba Rao	 J. It was clear that section 3(2)(15)(i) of the Defence of India Act	 1962	 and r. 30(1)(b) made under the Act contravened the relevant provisions of article 22 of the Constitution and were	 therefore	 void. Deep Chand vs The State of Uttar Pradesh	 [1959] Supp. 2 S.C.R. 840	 Mahendra Lal vs State of U.P.	 A.I.R. 1963 S.C. 1019	 A. K. Gopalan vs State of Madras	 ; 	 referred to. Under the Constitution	 every person has a right to move the Supreme Court	 the High Courts or any other court or courts constituted by the Parliament under article 32(3) for the enforcement of fundamental rights in the manner prescribed. But while the right to move the Supreme Court is a guaranteed right	 the right to move the others is not so. Article 359	 properly construed	 meant that the bar imposed by the Presidential Order applied not only to the guaranteed right to move the Supreme Court but also the rights to move the other courts under article 32 and article 226 of the Constitution. There is no new rule of construction peculiar to war measures. It is always the same	 whether in peace or in war. The fundamental rule is that the courts have to find out the expressed intention of the Legislature from the words of the enactment itself. Words must be given their natural and ordinary meaning unless there is ambiguity in the language in which case the court has to adopt that meaning which furthers the intention of the Legislature. A constitutional provision such as article 359	 however	 cannot be given a strained construction to meet a passing phase such as the present emergency. Rex vs Halliday	 L.R. [19171 A.C. 260	 Liversidge vs Sir John Anderson; 	 	 Nakkuda A1i vs jayaratna	 	 Gibbon vs Ogden	 (1824) 6 L. Ed. 23	 discussed. Section 491 of the Code of Criminal Procedure is wide in its terms and gives a discretionary power to the High Courts. Unlike articles 32 and 226	 the exercise of the power is not channelled through procedural writs or orders and their technicalities cannot circumscribe the court 's discretion. Girindra Nath Banerjee vs Birendra Nath Pal	 (1927) I.L.R. 	 District Magistrate	 Trivandrum vs Mammen Mappillai	 I.L.R. 	 Matten vs District Magistrate	 Trivandrum	 L.R. (1939) 66 I.A. 222	 referred to. Section 491 is continued by article 372 and article 225 preserves 802 the jurisdiction of the High Court. The power it confers on the High Court is not inconsistent either with article 32 or article 226 or any other Article of the Constitution and the section cannot	 therefore	 be said to have been impliedly superseded even to the extent article 226 empowers the High Court to give relief in cases of illegal detention. Though remedial in form the section postulates the existence of the substantive right that no person can be deprived of his liberty except in the manner prescribed by law. It assumes the existence of the rule of law and empowers High Court to act suo motu. The rights	 substantive and procedural conferred by it arc different from those under articles 32 or 226 of the Constitution. It places the onus on the custodian to prove that the detention is legal and although in scrutinising the legality of the detention the court may have to consider whether the law offends any fundamental rights	 that cannot make the proceeding one for the enforcement of fundamental rights or the decision anything but one on the unconstitutionality of a law because of infringement of fundamental rights generally. The mode of approach to the High Court under section 491 of the Code or the nature of the relief given thereunder cannot be equated with those under the Constitution. The absolute discretionary jurisdiction under it cannot be put on a par with the jurisdiction under article 226 which is hedged in by constitutional limitations. Alam Khan vs The Crown	 Lahore 274	 Ramji Lal vs The Crown	 I.L.R. (1949) 11 E.P. 28	 King Emperor vs Vimlabai Deshpande	 (1946) L.R. 73 I.A. 144	 referred to. While section 491 gives no right to enforce fundamental rights	 operating as it does as a check on arbitrary action	 article 359 is concerned not with statutory powers but deals with the constitutional right and the constitutional enforcement of it. It was not	 therefore	 correct to say that article 359 would be frustrated if section 491 was allowed to stand for Parliament might amend that section any time it liked. The expression "right to move any court for enforcement of such of the rights conferred by Part 111" in article 359 must refer only to the right to move under article 32 or article 226 for the said specific relief and could not be applied to the exercise of the statutory power of the High Courts under section 491 of the Code and	 consequently	 the expression "all proceedings pending in any court for the enforcement of the rights" must refer to the proceedings initiated in exercise of that right. The detenus could not	 therefore	 enforce their fundamental rights under articles 21	 32 and 14 while the Presidential Order lasted	 but that did not affect the High Court 's power under section 491 of the Code. The President 's Order cannot bar the detenus from proving even under articles 32(l) and 226 that the detentions were not made 803 under the Defence of India Ordinance or the Act as they were outside the Ordinance or the Act or in excess of the power conferred by them or that the detentions were made malafide or in fraudulent exercise of power.