MANU/SC/0062/1976

Equivalent/Neutral Citation: (1976) AIR1207, (1976) CriLJ945, (1976) INSC129, 2 (1976) SCC521, (1976) SCR no vol172, 8

(1976) UJ610

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 279, 355, 356, 380, 389, 1845-1849 and 1926 of
1975 and 3, 41 and 46 of 1976

Decided On: 28.04.1976

Appellants: Additional District Magistrate, Jabalpur Vs. Respondent:

Shivakant Shukla

Hon'ble Judges/Coram:
A.N. Ray, C.J., H.R. Khanna, M. Hameedullah Beg, P.N. Bhagwati and Y.V.
Chandrachud, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: M.C. Nihalani, Ram Panjwani, S.N.
Kakkar, Niren De and V.P. Raman, Advs.

For Respondents/Defendant: Shanti Bhushan, Soli J. Sorabjee, G.C.

Dwivedi, S.S. Khanduja, Rama Jois and N.M. Ghatate, Advs.

JUDGMENT

A.N. Ray, C.J.

1. These appeals are by certificates in some cases and by leave in other

cases. The State is the appellant. The respondents were petitioners in the
High Courts.

2. The respondents filed applications in different High Courts for the issue
of writ of habeas corpus. They challenged in some cases the validity of
the 38th and the 39th Constitution Amendment Acts, the Proclamation of
emergency by the President under Article 352 of the Constitution made
on 25 June, 1975. They challenged the legality and validity of the orders
of their detention in all the cases.

3. The State raised a preliminary objection that the Presidential Order

dated 27 June, 1975 made under Article 359 of the Constitution
suspending the detenus right to enforce any 01 the rights conferred by
Articles 14, 21 and 22 of the Constitution and the continuance of
emergency during which by virtue of Article 358 all rights conferred by
Article 19 stand suspended are a bar at the threshold for the respondents
to invoke the jurisdiction of the High Court under Article 226 of the
Constitution and to ask for writs of habeas corpus.

4. The judgments are of the High Courts of Allahabad, Bombay (Nagpur

Bench), Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan.

5. The High Courts held that notwithstanding the continuance of

emergency and the Presidential Order suspending the enforcement of
fundamental rights conferred by Articles 14, 21 and 22 the High Courts
can examine whether an order of detention is in accordance with the
provisions of the Maintenance of Internal Security Act (hereinafter
referred to as the Act), which constitute the conditions precedent to the
exercise of powers thereunder excepting those provisions of the Act which
are merely procedural or whether the order was made malafide or was
made on the basis of relevant materials by which the detaining authority
could have been satisfied that the order was necessary: The High Courts
also held that in spite of suspension of enforcement of fundamental rights
conferred by Articles 21 and 22 of the Constitution a person's right to
freedom from arrest or detention except in accordance with law can be
enforced only where such arrest and detention are not in accordance with
those provisions of the statute which form the conditions precedent to the
exercise of power under that statute as distinguished from merely
procedural provisions or are malafide or are not based on relevant
materials by which the detaining authority could have been satisfied that
the order of detention was necessary.

6. The High Courts held that the High Courts could not go into the
questions whether the Proclamation of emergency was justified or
whether the continuance thereof was malafide.

7. The High Courts did not decide about the validity of the 38th and the
39th Constitution Amendment Acts. The 38th Constitution Amendment
Act amended Articles 123, 213, 239(b), 352, 356, 359 and 360. Broadly
stated, the 38th Constitution Amendment Act renders the satisfaction of
the President or the Governor in the relevant Articles final and conclusive
and to be beyond any question in any Court on any ground. As for Article
359 Clause (1A) has been inserted by the 38th Constitution Amendment
Act. The 39th Constitution Amendment Act amended Articles 71, 329,
329A and added Entries after Entry 86 in the Ninth Schedule.

8. No arguments were advanced on these Constitution Amendment Acts

and nothing thereon falls for determination in these appeals.
9. It is appropriate to mention here that on 3 December, 1971 in exercise
of powers conferred by Clause (1) of Article 352 of the Constitution the
President by Proclamation declared that a grave emergency exists
whereby the security of India is threatened by external aggression.

10. On 25 June, 1975 the President in exercise of powers conferred by

Clause (1) of Article 352 of the Constitution declared that a grave
emergency exists whereby the security of India is threatened by internal
disturbances.

11. On 27 June, 1975 in exercise of powers conferred by Clause (1) of

Article 359 the President declared that the right of any person including a
foreigner to move any Court for the enforcement of the rights conferred
by Article 14, Article 21 and Article 22 of the Constitution and all
proceedings pending in any Court for the enforcement of the above-
mentioned rights shall remain suspended for the period during, which the
Proclamations of emergency made under Clause (1) of Article 352 of the
Constitution on 3 December, 1971 and on 25 June, 1975 are both in
force. The Presidential Order of 27 June, 1975 further stated that the
same shall be in addition to and not in derogation of any Order made
before the date of the aforesaid Order under Clause (1) of Article 359 of
the Constitution.

12. It should be noted here that on 8 January, 1976 there was a

notification that in exercise of powers conferred by Clause (1) of Article
359 of the Constitution the President declares that the right of any person
to move any Court for the enforcement of the rights conferred by Article
19 of the Constitution and all proceedings pending in any Court for the
enforcement of the above-mentioned rights shall remain-suspended for
the period during which the Proclamation of emergency made under
Clause (1) of Article 352 of the Constitution on 3 December, 1971 and on
25 June, 1975 are in force.

13. The questions which fall for consideration are two . First, whether in
view of the Presidential Orders dated 27 June, 1975 and 8 January, 1976
under Clause (1) of Article 359 of the Constitution any writ petition under
Article 226 before a High Court for habeas corpus to enforce the right to
personal liberty of a person detained under the Act on the ground that the
order of detention or the continued detention is for any reason not under
or in compliance with the Act is maintainable. Second, if such a petition is
maintainable what is the scope or extent of judicial scrutiny particularly in
view of the Presidential Order dated 27 June, 1975 mentioning, inter alia,
Article 22 of the Constitution and also in view of Sub-section (9) of
Section 16A of the Act.
14. The Attorney General contended that the object and purpose of
emergency provisions is that the Constitution provides special powers to
the Executive because at such tunes of emergency the considerations of
State assume importance. It has been recognised that times of grave
national emergency demand grant of special power to the Executive.
Emergency provisions contained in Part XVIII including Articles 358,,
359(1) and 359(1A) are constitutional imperatives. The validity of law
cannot be challenged on the ground of infringing a fundamental right
mentioned in the Presidential Order under Article 359(1). Similarly, if the
Executive took any action depriving a person of a fundamental right
mentioned in the Presidential Order by not complying with the law such
Executive action could not be challenged because such challenge would
amount in substance to and would directly impinge on the enforcement of
fundamental rights mentioned in the Presidential Order. The reason given
by the Attorney General behind the principle is that in times of emergency
the Executive safeguards the life of the nation. Challenge to Executive
actions either on the ground that these are arbitrary or unlawful has been
negatived in England in Liversidge v. Anderson [1942] A. C. 206 and
Greene v. Secretary of State for Home Affairs [1942] A. C. 284 and also
by this Court in Sree Mohan Chowdhury v. The Chief Commissioner, Union
Territory of Tripura MANU/SC/0035/1963 : 1964CriLJ132 and Makhan
Singh v. State of Punjab MANU/SC/0039/1963 : 1964CriLJ217 .

15. The contentions of the respondents are as follows : The arguments on

behalf of the State mean that during the emergency there is no right to
life or liberty. Article 358 is more extensive as the fundamental right itself
is suspended. The Presidential Order under Article 359(1) does not
suspend any fundamental right.

Second, the object of Article 359(1) is to bar moving the Supreme Court
under Article 32 for the enforcement of certain specified rights without
affecting in any manner the enforcement of common law and statutory
rights to personal liberty under Article 226 before the High Court.

Third, Article 359(1) removes the fetter in Part III but does not remove
the fetters arising from the principles of limited power of the Executive
under the system of checks and balances based on separation of powers.

Fourth, while the Presidential Order operates Only in respect of

fundamental rights mentioned in the Presidential Order it would not affect
the rights of personal liberty at common law or under statute law or
under natural law.

Fifth, Article 359(1) is not to protect illegal orders of the Executive. The
Executive cannot flout the command of Parliament relying on a
Presidential Order under Article 359(1). The suspension of fundamental
right or of its enforcement cannot increase the power of the -Executive
vis-a-vis the individual.

Sixth, there is no reason to equate the State with the Executive. The
suspension of the fundamental right or the right to enforce it has only this
consequence that it enables the Legislature to make laws violative of the
suspended fundamental rights and the Executive to implement such laws.
The suspension of the fundamental right does not enable the Executive to
flout legislative mandates and judicial decisions.

Seventh, the Executive can act to the prejudice of citizens only to the
extent permitted by valid laws. The Proclamation of emergency does not
widen the Executive power of the State under Article 162 so as to
empower the State to take any Executive action which it is not otherwise
competent to take.

Eighth, the right to arrest is conferred by the Act on the States and their
officers only if the conditions laid down under Section 3 of the Act are
fulfilled. therefore, if the conditions laid down under Section 3 of the Act
are not complied with by the detaining authority then the order of
detention would be ultra vires the said Act.

Ninth, Habeas corpus is a remedy not only for the enforcement of the
right to personal liberty, whether under natural law or a statute, but is
also a remedy for the enforcement of the principle of ultra vires, viz.,
when the detaining authority has failed to comply with the conditions laid
down in section 3 of the Act. In such a case the High Court has
jurisdiction to issue a writ of habeas corpus for the enforcement of the
principle of ultra vires.

16. In England it was the practice in tunes of danger to the State to pass
what were popularly known as Habeas Corpus Suspension Acts.
Suspension did not legalise illegal arrest; it merely suspended a particular
remedy in respect of particular offences. Accordingly it was the practice in
England at the close of the period of suspension to pass an Indemnity Act
in order to protect official- concerned from the consequences of any
incidental illegal acts which they might have committed under cover of
the suspension of the prerogative writ.

17. In England the Defence of the Realm Acts 1914-18 empowered the
Executive to make regulations by Order in Council for securing the public
safety or for the defence of 'the realm. In The King v. Holiday Ex parte
Zadiq [1917] A.C. 260 the House of Lords held that a regulation was valid
which authorised the Secretary of State to detain a British subject on the
grounds of ins hostile origin or association. It was contended on behalf of
Zadiq that there was no provision for imprisonment without trial. The
substantial contention was that general words in a statute could not take
away the vested right of a subject or alter the fundamental law of the
Constitution because it would be repugnant to the constitutional tradition
of the country. The majority of the court swept aside these arguments
and held that on the construction of the Act the Executive had
unrestricted powers.

18. During the Second World War the emergency Powers (Defence) Act,
1939 in England empowered the making of regulations for the detention
of persons by the Secretary of State in the interests of the public safety
or the defence of the realm, and for authority to enter and search any
premises.

19. Although access to the courts was not barred during the Second
World War in England the scope for judicial review of executive action was
limited. The courts could not consider whether a particular regulation is
necessary or expedient for the purpose of the Act which authorised it. The
question of necessity or expediency was one for the Government to
decide. The court could, however, hold an act to be illegal as being not
authorised by the regulation relied upon to justify it. .

20. It was open to the subject in England to challenge detention by

application for a writ of habeas corpus, but such application had little
chance of success in view of the decision of the House of Lords in
Liversidge's case (supra). The House of Lords took the view that the
power to detain could not be controlled by the courts, if only because
considerations of security forbade proof of the evidence upon which
detention was ordered. It was sufficient for the Home Secretary to have a
belief which in ins mind was reasonable. The courts would not enquire
into the grounds for ins belief, although apparently they might examine
positive evidence of mala fides or mistaken identity. In Greene's case
(supra) the House of Lords held that a mistake on the part of the advisory
committee in failing, as was required by the regulation, to give the
appellant correct reasons for ins detention did not invalidate the detention
order. It is noticeable how the same House expressed this view without
any dissent.

21. Dicey states that this increase in the power of the Executive is no
trifle, but it falls far short of the process known in some foreign countries
as "suspending the constitutional guarantees" or in France as the
"proclamation of a State of siege". Under the Act of 1881 the Irish
executive obtained the absolute power of arbitrary and preventive arrest,
and could without breach of law detain in prison any person arrested on
suspicion for the whole period for which the Act continued in force. Under
the Prevention of Crime (Ireland) Act, 1882 the Irish Executive was
armed with extraordinary powers in the case of certain crimes to abolish
right to trial by jury.

22. The Act of Indemnity in England is a retrospective statute which frees

persons who had broken the law from responsibility for its breach, and
thus make acts lawful which when they were committed were unlawful. A
Habeas Corpus Suspension Act does not free any person from civil or
criminal liability for a violation of the law. The suspension, indeed, of the
Habeas Corpus Act may prevent the person arrested from taking at the
moment any proceeding against the Secretary of State. While the
suspension lasts, he will not be able to get himself discharged from
prison. If the prisoner has been guilty of no legal offence then on the
expiration of the Suspension Act the Secretary of State and ins
subordinates are liable to actions or indictments for their illegal conduct.

23. Dicey stated that the unavowed object of a Habeas Corpus

Suspension Act is to enable the Government to do acts which, though
politically expedient may not be strictly legal. The Parliament which
suspends one of the guarantees for individual freedom must hold that a
crisis has arisen when the rights of individuals must be postponed to
considerations of State. A Suspension Act would in fact, fail of its main
object, unless the officials felt assured that, as long as they bona-fide,
and uninfluenced by malice or by corrupt motives, carried out the policy
of which the Act was visible sign, they would be protected from penalties
for conduct which, though it might be technically a breach of law, was
nothing more than the free exertion for the public good of that
discretionary power which the suspension of Habeas Corpus Act was
intended to confer upon the executive.

24. The position in America is described in Cooley on the General

Principles of Constitutional Law in the U.S.A. Fourth Edition. In America
the right to the Writ of Habeas Corpus is not expressly declared in the
Constitution, but it is recognised in the provision Article 1 in Section 9
Clause (2) that the privilege of writ of habeas corpus shall not be
suspended, unless when in cases of rebellion or invasion the public safety
may require it. In America the power to suspend the privilege is a
legislative power and the President cannot exercise it except as
authorised by law. The suspension does not legalise what is done while it
continues. It merely suspends for the time this particular remedy. All
other remedies for illegal arrests remain, and may be pursued against the
parties making or continuing them.
25. Liberty is confined and controlled by law, whether common law or
statute. It is in the words of Burke a regulated freedom. It is not an
abstract or absolute freedom. The safeguard of liberty is in the good
sense of the people and in the system of representative and responsible
government which has been evolved. If extraordinary powers are given,
they are given because the emergency is extraordinary, and we limited to
the period of the emergency.

26. Unsuitability of a court of law for determining matters of discretionary

policy was referred to by Lord Parker in the Zamora case [1916] 2 A. C.
107 and Lord Finlay in the Zadiq case (supra). In the Liversidge case
(supra) it was held that the court is not merely an inappropriate tribunal,
but one the jurisdiction of which is unworkable and even illusory in these
cases. A court of law could not have before it the information on which
the Secretary acts still less the background of statecraft and national
policy what is and what must determine the action which he takes upon
it.

27. The Liversidge case (supra) referred to these observations in the

Zadiq case (supra) "However precious the personal liberty of the subject
may be, there is something for which it may well be, to some extent,
sacrificed by legal enactment, namely, national success in the war or
escape from national plunder or enslavement". Liberty is itself the gift of
the law and may by the law be forfeited or abridged.

28. There is no record of any life of an individual being taken away either
in our country during emergency or in England or America during
emergency in their countries. It can never be reasonably assumed that
such a think will happen. Some instances from different countries were
referred to by some counsel for the respondents as to what happened
there when people were murdered in gas chambers or people were
otherwise murdered. Such instances are intend to produce a kind of terror
and horror and are hortative in character. People who have faith in
themselves and in their country will not paint pictures of diabolic
distortion and mendacious alignment of the governance of the country.
Quite often arguments are heard that extreme examples are given to test
the power. If there is power, extreme examples will neither add to the
power nor rob the same. Extreme examples tend only to obfuscate reason
and reality.

29. The effect of the Suspension of Habeas Corpus Acts and of Indemnity
Acts in England has been to give every man security and confidence in
periods of public danger or apprehension. Rarely, however, has this been
suffered without jealousy, hesitation and remonstrance. Whenever the
perils of the State have been held sufficient to warrant this sacrifice of
personal liberty, no Minister or Magistrate has been suffered to tamper
with the law at ins discretion. Where the Government believes the State
to be threatened by traitorous conspiracies during times of grave
emergencies the rights of individuals of ordinary tunes become
subordinate to considerations of the State.

30. The pre-eminent questions are four. First, is the Presidential Order
under Article 359 a bar at the threshold Second, is Article 21 the sole
repository of right to life and personal liberty Third, is the Presidential
Order subject to the rubric of Rule of Law ? Fourth, is Section 16A(9) of
the Act a rule of evidence ?

31. The first question turns on the depth and content of the Presidential
Order.

The vital distinction between Article 358 and Article 359 is that Article 8
suspends the rights only under Article 19 to the extent that the
Legislature can make laws contravening Article 19 during the operation of
a Proclamation of emergency and the Executive can take action which the
Executive is competent to take under such laws. Article 358 does not
suspend any fundamental right. While a Proclamation of emergency is in
operation the Presidential Order under Article 359(1) can suspend the
enforcement of any or all fundamental rights. Article 359(1) also
suspends any pending proceedings for the enforcement of such
fundamental right or rights. The purpose and object of Article 359(1) is
that the enforcement of any fundamental right mentioned in the
Presidential Order is barred or it remains suspended during the
emergency. Another important distinction between the two Articles is that
Article 358 provides for indemnity whereas Article 359(1) does not, Article
359(1A) is on the same lines as Article 358 but Article 359(1A) now
includes all fundamental rights which may be mentioned in a Presidential
Order and is, therefore, much wider than Article 358 which includes
Article 19 only.

32. A person can enforce a fundamental right both in the case of law
being made in violation of that right and also if the Executive acts in non-
compliance with valid laws or acts without the authority of law. It cannot
be said that the scope of Article 359(1) is only to restrict the application
of the Article to the Legislative field and not to the acts of the Executive.
The reason is that any enforcement of the fundamental rights mentioned
in the Presidential Order is barred and any challenge either to law or to
any act of the Executive on the ground that it is not in compliance with
the valid law or without authority of law will amount to enforcement of
fundamental rights and will, therefore, be within the mischief of the
Presidential Order. The effect of the Presidential Order suspending the
enforcement of fundamental right amounts to bar the locus standi of any
person to move the court on the ground of violation of a fundamental
right.

33. The Constitution is the mandate. The Constitution is the rule of law.
No one can arise above the rule of law in 'the Constitution. The decisions
of this Court in Mohan Chowdhury's (supra) case, Makhan Singh's (supra)
case and Dr. Ram Manohar Lohia v. State of Bihar and Ors.
MANU/SC/0054/1965 : 1966CriLJ608 are that any court means all courts
including this Court and High Courts and the right to initiate legal
proceedings. A person can enforce fundamental rights in this Court under
Article 32 as well as in the High Courts under Article 226. It is idle to
suggest that the object of Article 359(1) is that the right to move this
Court only is barred and not the right to move any High Court. Article 26
does not provide a guaranteed fundamental right like Article 32. This
guaranteed right under Article 32 itself may be suspended by a
Presidential Order under Article 359(1). In such a case it could not be said
that the object of the makers of the Constitution is that a person could
not move this Court for the enforcement of fundamental rights mentioned
in the Presidential Order but could do so under Article 226. The bar
created by Article 359(1) applies to petitions for the enforcement of
fundamental rights mentioned in the Presidential Order whether by way of
an application under Article 32 or by way of any application under Article
226. [See Makhan Singh's case (supra) and Ram Manohar Lohia's case
(supra)].

34. It is incorrect to say that the jurisdiction and powers of this Court
under Article 32 and of the High Courts under Article 226 are virtually
abolished by the Presidential Order without any amendment of the
Constitution. No amendment of the Constitution is necessary because no
jurisdiction and power either of this Court or of the High Court is taken
away. When a Presidential Order teaks away the locus standi of the
detenus to move any court for the enforcement of fundamental rights for
the tune being the jurisdiction and powers of this Court and of the High
Courts remain unaltered Article 359(1) is not directed against any court.
It is directed against an individual and deprives him of ins locus standi.

35. The courts cannot either increase or curtail the freedom of individuals
contrary to the provisions of the Constitution. The courts interpret the
Constitution and the laws in accordance with law and judicial conscience
and not emotion. It is wrong to say that the Executive has asked or
directed any one not to comply with the conditions of the Act. The
question is not whether the Executive should comply or should not comply
with the Act but whether a detenu has a locus standi to move any court
for a writ in the nature of habeas corpus on the ground of non-compliance
with the provisions of the Act.

36. In period of public danger or apprehension the protective law which

gives every man security and confidence in tunes of tranquility, has to
give way to interests of the State. The opinion in England has been that
when danger is imminent, the liberty of the subject is subordinated to the
paramount interests of the State. Ring leaders are seized and outrages
anticipated. Plots are disconcerted, and the dark haunts of conspiracy
filled with distrust and terror (See May--Constitutional History of England,
Vol. I, pp. 130-135).

37. While the courts of law are in normal tunes peculiarly competent to
weigh the competing claims of individuals and government, they are ill
equipped to determine whether a given configuration of events threatens
the life of the community and thus constitutes an emergency. Neither are
they equipped, once an emergency has been recognised particularly a war
emergency or emergency on account of security of the country being
threatened by internal aggression to measure the degree to which the
preservation of the life of the community may require governmental
control of the activities of the individual. Jurists do not have the vital
sources of information and advice which are available to the executive
and the legislature; nor have they the burden of formulating and
administering the continuing programme of the government, and the-
political responsibility of the people, which, although intangibles, are of
crucial importance in establishing the context within which such decisions
must be made.

38. Article 359(1) makes no distinction between the threat to the security
of India by war or external aggression on one hand and threat to the
security of India by internal disturbance on the other. In fact, both
situations are covered by the expression "grave emergency" in Article
352(1). Apart from Article 359(1) all provisions of the Constitution laying
down the consequences of a Proclamation of emergency under Article
352(1) would apply to both situations. The consequences of a
Proclamation of emergency under Article 352(1) of our Constitution are
much wider than in England or America.

39. Article 353 provides that the executive power of the Union shall
extend to giving of directions to any State as to manner in which the
executive power thereof is to be exercised. The exercise of such executive
power by the Union totally displaces the provisions of Article 162. Non-
compliance with directions of the Union Executive under Article 353 by
any State Executive may attract the provisions of Article 356 and the
President's Rule may be imposed on that State. In such as event,
Parliament may, under Article 357(f) confer on the President the power of
the Legislature of that State to make laws or to delegate such legislative
power to any other authority. In such a situation, the federal structure
and representative Government on which the Constitution is based, may
be completely chastised in the State or States concerned. Article 250
provides that during the operation of Proclamation of emergency
Parliament may make laws with respect to any of the matters enumerated
in the State List. The Federal structure and representative government
may suffer its full place in that Situation.

40. On the expiry of the operation of the Presidential Order under Article
359(1), the infringement of the fundamental rights mentioned in the
Order, either by the legislative enactment or by an executive action, may
be challenged in a court of law and 2 after such expiation Parliament
passes an Act of Indemnity, the validity and the effect of such legislation
may have to be scrutinised. [See MakJian Singh's case (supra) at 813].

41. The provisions in our Constitution relating to emergency are of wide

amplitude. The Executive is armed with special powers because individual
interests are subordinated to State security. If law is invalid vis-a-vis
fundamental rights there cannot be any challenge during the operation of
Articles 358 and 359 on the ground that law violates fundamental rights.
It is contradictory to say that there can yet be challenge to orders under
that law as being not in accordance with law. Article 19 is a prohibition
against law. Article 19 has nothing to do with the Executive. Law under
Article 21 can be punitive or preventive. In Article 22 reference is made to
grounds and representation in cases of preventive detention. If
enforcement of Article 22 is suspended one is left with Article 21.

42. The Act in the present case is law. The Executive orders are under
that law. Any allegation that orders are not under that law Will not rob the
orders of the protective umbrella of Article 359. The challenge by a
detenu that law is broken will be enforcement of Article 21 because law
contemplated under Article 21 is substantive as well as procedural law. A
law can be broken either of substantive or procedural parts. Neither
enforcement of nor relief to personal liberty is based on Article 19. No
executive action is valid unless backed by law. In the present cases there
is law authorising detention. In the present cases, the writs questioned
the validity of detention. The Legislature under Article 358 is authorised
to act in breach of Article 19. The executive can act only in terms of that
law. If this is pre-emergency law it has to satisfy Part III of our
Constitution. If it is emergency law it can violate Article 19 because it is
protected by Article 358.
43. Under Article 359 the Presidential Orders have been of two types. On
3 November, 1962 in exercise of powers conferred by Clause (1) of Article
359 of the Constitution the President declared that "the right of any
person to move any court for the enforcement of the rights conferred by
Article 21 and Article 22 shall remain suspended for the period during
which the Proclamation of emergency issued under Clause (1) of Article
352 on 26 October, 1962 is in force, if such a person has been deprived of
any right under the Defence of India Ordinance 1962 or of any rule or
order made thereunder". The 1975 Presidential Order under Article
359(1) does not have the words "if such a person has been deprived of
any such right under the Defence of India Ordinance 1962 or any rule or
order made thereunder". In other words, the 1962 Presidential Order is
limited to the condition of deprivation of rights under the Defence of India
Ordinance or any rule or order made thereunder whereas in the 1975
Presidential Order as statute is mentioned. The illegality of orders was
challenged in Makhan Singh's case (supra) in spite of the Presidential
Order under the 1962 Proclamation on the ground that the impeached
orders are not in terms of the statute or they are made in abuse of law.

44. The decisions of this Court in Mohan Chowdhury's and Makhan Singh's
cases (supra) are that during the operation of a Proclamation of
emergency no one has any locus standi to move any court for the
enforcement of any fundamental rights mentioned in the Presidential
Order. The ratio must necessarily apply to Executive acts because
Executive acts are challenged on the grounds of being contrary to law
and- without the authority of law. The submission 61 the respondents
that a person in detention can come to a court of law in spite of the
Presidential Order under Article 359(1) and contend that a habeas corpus
should be issued for ins release or that the Executive should answer the
detenu's challenge that the Act complained of is without authority of law
or the challenge of the detenu that the provisions of the Legislative Act
under which the detention has been made have not been complied with
are all rooted in the enforcement of fundamental rights to liberty under
Articles 21 and 22. If courts will in spite of the Presidential Order
entertain such applications and allow the detenus to enforce to start or
continue proceedings or enforce fundamental rights, Article 359(1) will be
nullified and rendered otiose.

45. This Court in Makhan Singh's case (supra) said that if there was
challenge to the validity of the detention order based on any right other
than those mentioned in the Presidential Order that detenu's right to
move any court could not be suspended by the Presidential Order because
the right was outside Article 359(1). This was explained by staling that if
the detention was challenged on the ground that it contravened the
mandatory provisions of the relevant Act or that it was malafide and was
proved to be so, the bar of the Presidential Order could have no
application.

46. This observation in Makhan Singh's case (supra) is to be understood

in the context of the question that arose for decision there. Decision on a
point not necessary for the purpose of or which does not .fall to be
determined in that decision becomes an obiter dictum [See Maha-
rajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and Ors. v. Union of
India MANU/SC/0050/1970 : [1971]3SCR9 . In Makhan Singh's case
(supra) the detention orders which were the subject matter of the
judgment were orders made by the Executive under the Defence of India
Ordinance or Act and rules and orders made thereunder which was the
express condition for detention in respect of which the Presidential Order
of 1.962 under Article 359(1) applied.

47. The Presidential Order in the present case is on the face of it an un-
conditional order and. as such there is the vital and telling difference
between the effect of the Presidential Order of 1962 and the present
Presidential Order. It is obvious that the Government fully conscious of
the Presidential Order of 1962 and its effect as determined by the
decisions of this Court in Makhan Singh's case (supra) and subsequent
cases deliberately made the present Presidential Order an un-conditional
order under Article 359(1).

48. Reference may be made to State of Maharashtra v. Prabhakar

Pandurang Sangzgiri and Anr. MANU/SC/0089/1965 : 1966CriLJ311 which
clearly pointed out that the Presidential Order of 1962 was a conditional
one and therefore if a person was deprived of ins personal liberty not
under the Act or rules and orders made thereunder but in contravention
thereof, ins right to move the courts in that regard would not be
suspended. The decision; of this Court in Pandurang's case (supra) is by
the Constitution Bench of five learned Judges, three of whom were on the
Constitution Beach of seven learned Judges deciding Makhan Singh's case
(supra). In Pandurang's case (supra) the ratio was that if a person was
deprived of ins personal liberty not under the Act or rules and orders
made thereunder but in contravention thereof, ins right to move the
courts in that regard was not suspended.

49. It, therefore, follows from the decisions in Pandurang's case and
Makhan Singh's case (supra) that the ratio in both the cases was that the
1962 Presidential Order being a conditional one the enforcement of rights
under Articles 21 and 22 was suspended only to the extent of the
conditions laid down in the Presidential Order and the suspension could
not operate in areas outside the conditions. There is no aspect whatever
of any condition in the present Presidential Order. therefore, the decisions
in Makhan Singh's case (supra) and subsequent cases following it have no
application to the present cases where the suspension is not hedged with
any condition of enforcement of any right under Articles 21 and 22. The
conclusion for the foraging reasons is that the Presidential Order is a bar
at the threshold.

50. The heart of the matter is whether Article 21 is the sole repository of
the right to personal liberty. If the answer to that question be in the
affirmative the Presidential Order will be a bar.

51. The contentions of the Attorney General are two-fold. First, the legal
enforceable right to personal liberty for violation thereof by the Executive
is a fundamental right conferred by the Constitution and is embodied in
Article 21. Second, apart from Article 21 the right to personal liberty
against the Executive is neither a common law right nor a statutory right
nor a natural right. He relies on three decisions. The earliest is Girindra
Nath Banerjee v. Birendra Nath Pal I. L. R. 54 Cal 727. The others are
King Emperor v. Sibnath Banerjee 72 I. A. 241 and Makhan Singh's case
(supra). In the first two decisions it has been held that the right to
habeas corpus is only under Section 491 of the CrPC. In Makhan Singh's
case (supra) it has been said that this right under Section 491 became
embodied in Article 21. The statutory right under Section 491 of the CrPC
has been deleted from the new CrPC which came into effect on 1 April,
1974.

52. The arguments on. behalf of the respondents are that the right to life
and personal liberty is not only in Article 21 but also under common law
and statutes for these reasons.

53. The right to personal liberty is contained in Articles 19, 20 and 22,
and, therefore, Article 21 is not the sole repository to personal liberty. The
respondents rely on the decision in Rustom Cavasjee Cooper v. Union of
India MANU/SC/0011/1970 : [1970]3SCR530 where it was said that the
ruling in A. K. Gopalan v. The State of Madras [1950] 3 S. C. R. 88 that
Articles 19 and 22 are mutually exclusive no longer holds the field. The
respondents also rely on the decisions in Shambhu Nath Sarkar v. The
State of West Bengal and Ors. MANU/SC/0163/1973 : [1974]1SCR1 ,
Haradhan Saha and Anr. v. The State of West Bengal and Ors.
MANU/SC/0419/1974 : 1974CriLJ1479 and Khudiram Das v. The State of
West Bengal and Ors. MANU/SC/0423/1974 : [1975]2SCR832 in support
of 'the proposition that these decisions followed the ruling in the Bank
Nationalisation case (supra). The respondents contend that the
Presidential Order bars enforcement of rights under Articles 14, 19, 21
and 22 but it is open to the respondents to enforce violation of rights
under Article 20. The other, reasons advanced by the respondents are
dealt with hereinafter.

54. The majority view in His Holiness Kesavananda Bharati Sripada-

galavaru v. State of Kerala MANU/SC/0114/1972 : 1972CriLJ1526 is that
there are no natural rights. Fundamental rights in our Constitution are
interpreted to be what is commonly said to be natural rights. The only
right to life and liberty is enshrined in Article 21.

55. In A. K. Gopalan''s case (supra) it has been said that to read law as
meaning, natural law is to lay down vague standards. Law means law
enacted by the State. Law must have some firmness. Law means positive
State made law. Article 21 has been interpreted in A. K. Gopalan's case
(supra) to include substantive as well as procedural law in the phrase
"procedure established by law". The reason is obvious. A law providing for
procedure depriving a person of liberty must be a law made by statute.
P.D. Shamdasani v. Central Bank of India Ltd. MANU/SC/0017/1951 :
[1952]1SCR391 held that Article 21 is prohibition against unauthorised
executive action. In Shrimati Vidya Verma through next friend R. V. S.
Mani v. Dr. Shiva Narain Verma MANU/SC/0072/1955 : 1956CriLJ283 law
in Article 21 has been held to mean State made law.

56. In Makhan Singh's case (supra) it was decided that during the
subsistence of the Presidential Order suspending the enforcement of
fundamental rights neither a petition under Article 32 nor a petition under
Article 226 could be moved invoking habeas corpus. An application
invoking habeas corpus under Section 491 of the CrPC cannot similarly be
moved in the High Court.

57. Part III of our Constitution confers fundamental rights in positive as

well as in negative language. Articles 15(1), 16(1), 19, 22(2), 22(5),
25(1), 26, 29(1), 30 and 32(1) can be described to be Articles in positive
language. Articles 14, 15(2), 16(2), 20, 21, 22(1), 22(4), 27, 28(1),
29(2), 31(1) and (2) are in negative language. It is apparent that most
categories of fundamental rights are in positive as well as in negative
language. A fundamental right couched in negative language accentuates
by reason thereof the importance of that right. The negative language is
worded to emphasise the immunity from State action as a fundamental
right. [See The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of
Darbhanga and Ors. MANU/SC/0019/1952 : [1952]1SCR889 . These
fundamental rights conferred by our Constitution have taken different
forms. Some of these fundamental rights are said to have the texture of
Basic Human Rights (See A, K. Gopalan's case (supra) at pp. 96-97, 248,
249, 293 and Bank Nationalisation case (supra) at pp. 568-71, 576-78).
58. Article 31(1) and (2) subordinate the exercise of the power of the
State to the concept of the Rule of Law enshrined in the Constitution.
(See Bank Nationalisation case (supra) at p. 568). Similarly,

Article 21 is our Rule of Law regarding life and liberty. No other rule of law
can have separate existence as a distinct right. The negative language of
fundamental right incorporated in Part III imposes limitations on the
power of the State and declares the corresponding guarantee of the
individual to that fundamental right. The limitation and guarantee are
complementary. The limitation of State action embodied in a fundamental
right couched in negative form is the measure of the protection of the
individual.

59. Personal liberty in Article 21 includes all varieties of rights which go to

make personal liberty other than those in Article 19(1)(d). (See Kharak
Singh v. State of U.P. MANU/SC/0085/1962 : 1963CriLJ329 and Ors. The
Bank Nationalisation case (supra) merely brings in the concept of
reasonable restriction in the law. In the present appeals, the Act is not
challenged nor can it be challenged by reason of Article 358 and Article
359(1A) and the Presidential Order mentioning Article 19 as well.

60. If any right existed before the commencement of the Constitution and
the same right with its same content is conferred by Part III as a
fundamental right the source of that right is in Part III and not in any pre-
existing right. Such pre Constitution right has been elevated by Part III as
a fundamental right. The pre-existing right and the fundamental right
have to be grouped together as a fundamental right conferred by the
Constitution. See Dhirubha Devisingh Gohil v. The State of Bombay
MANU/SC/0032/1954 : [1955]1SCR691 .

61. If there is a pre Constitution right which is expressly embodied as a

fundamental right under our Constitution, the common law right has no
separate existence under our Constitution. (See B. Shankara Rao Badami
and Ors. v. State of Mysore and Anr. MANU/SC/0022/1968 : [1969]3SCR1
. If there be any right other than and more extensive than the
fundamental right in Part III, such right may continue to exist under
Article 372.

62. Before the commencement of the Constitution the right to personal

liberty was contained in Statute law, e.g. the Indian Penal Code, the
Criminal Procedure Code as also in the common law of Torts. In the event
of any wrongful infringement of the right to personal liberty the person
affected could move a competent court by way of a suit for false
imprisonment and claim damages.
63. Suits for false imprisonment are one of the categories of law of Torts.
The common law of Torts prevailed in our country before the Constitution
on the basis of justice, equity and good conscience. (See Waghela
Rajsanfi v. Shiekh Masludin and Ors. 14 I. A 89, Satish Chandra
Chakravarti v. Ram Doyal De I.L.R. 48 Cal. 388. 426 and Baboo s/o
Thakur Dhobi v. Mt. Subanshi w/o Mangal Dhobi MANU/NA/0024/1942.
This principle of justice, equity and good conscience which applied in India
before the Constitution is generally known as the English Common Law.
Apart from the law of Torts, there was no civil remedy for unlawful
infringement of the right to personal liberty in India before the
Constitution.

64. After the amendment of Section 491 of the CrPC in 1923, the right to
obtain a direction in the nature of a habeas corpus became a statutory
right to a remedy in India. After 1923 it was not open to any party to ask
for a writ of habeas corpus as a matter of common law. (See Makhan
Singh's case (supra) at pp. 818-19; District Magistrate, Trivandrum v. K.
C. Mammen Mappil-lai I.L.R. [1939] Mad. 708, Matthen v. District
Magistrate, Trivandrum L.R. 66 IndAp 222, Girindra Nath Banerjee's case
(supra) and Sibnath Banerjee's case (supra). The previsions of Section
491 of the Criminal Procedure Code have been repealed recently as being
superfluous in view of Article 226. (See 41st Report of Law Commission of
India (Vol. I) p. 307).

65. The present appeals arise from petitions filed in High Courts for writs
in the nature of habeas corpus. The statutory right to remedy in the
nature of habeas corpus under Section 491 of the Criminal Procedure
Code cannot be exercised now In view of the repeal of that section. Even
if the section existed today it could not be exercised as a separate right
distinct from the fundamental right, the enforcement of which is
suspended by the Presidential Order as was held by this Court in Makhan
Singh's case (supra) at pp. 818-825. There was no statutory right to
enforce the right to personal liberty other than that in Section 491 of the
Criminal Procedure Code before the commencement of the Constitution
which could be carried over after its commencement under Article 372.
Law means enacted law or statute law. (See A. K. Gopakm's case (supra)
at pp. 112, 199, 276, 277, 288, 307, 308, 309, 321, 322). It follows that
law in Article 21 will include all post-constitutional statute law including
the Act in the present case and by virtue of Article 372 all pre-
constitutional statute law including the Indian Penal Code and the
Criminal Procedure Code.

66. The expression "procedure established by law" includes substantive as

well as procedural law. (See A. K. Gopalan's case (supra) at p. 111 and S.
Krishnan and Ors. v. The State of Madras MANU/SC/0008/1951 :
[1951]2SCR621 . It means some step or method or manner of procedure
leading upto deprivation of personal liberty. A law depriving a person of
personal liberty must be a substantive and procedural law authorising
such deprivation. It cannot be a bare law authorising deprivation of
personal liberty. The makers of the Constitution had the Criminal
Procedure Code in mind. The repealed Criminal Procedure Code as well as
the present Criminal Procedure Code has substantive as well as
procedural provisions. The substantive as well as the procedural parts in a
law depriving a person of personal liberty must be strictly followed. There
is no distinction between the expression "save by authority of law" in
Article 31(1) and the expression "except by authority of law" in Article
265. Laws under Article 31(1) must lay down a procedure containing
reasonable restrictions. Law under Article 265 also lays down a
procedure. therefore, there is no difference between the expression
"except according to procedure established by law" in Article 21 and the
expression "save by authority of law" in Article 31(1) or the expression
"except by authority of law" in Article 265. When Article 21 was enacted it
would be a blunder to suggest that the founding fathers only enshrined
the right to personal liberty according to procedure and did not frame the
constitutional mandate that personal liberty could not be taken except
according to law.

67. The Attorney General rightly submitted at the outset that Article 21
confers a fundamental right against the Executive and law in that Article
means State law or statute law. In the present appeals, the respondents
allege that Section 3 of the Act has not been complied with. In the
present appeals the Act is not challenged nor can it be challenged on the
ground of infringement of Article 19 by reason of Articles 358, 359(1) and
the Presidential Order. It has been pointed out earlier that non-
compliance with the provisions of the Act cannot be challenged as long as
the Presidential Order is in force.

68. Article 20 states that no person shall be prosecuted and punished for
the same offence more than once. The present appeals do not touch any
aspect of Article 20. The reason why reference is made at this stage to
Article 20 is to show that Article 20 is a constitutional mandate to the
Judiciary and Article 21 is a constitutional mandate to the Executive.

69. The respondents contend that "State" in Article 2 will also include the
Judiciary and Article 20 is enforceable against the Judiciary in respect of
illegal orders. The answer is that Article 20 is a prohibition against the
Judiciary in the cases contemplated there. If a person is detained after
the Judiciary acts contrary to the provisions in Article 20 such detention
cannot be enforced against the Judiciary. In the event of the Judiciary
acting contrary to the provisions in Article 20 such detention can be
challenged by moving the court against the Executive for wrongful
detention, or conviction or punishment as the case may be. The
expression "No person shall be prosecuted for the same offence more
than once" in Article 20 would apply only to the Executive.

70. The decision in Makhan Singh's case (supra) is that fundamental

rights cannot be enforced against the Judiciary in case of illegal orders.
The decision in Ram Narayan Singh v. The State of Delhi and Ors.
MANU/SC/0035/1953 : 1953CriLJ113 is no authority for the proposition
that fundamental rights can be enforced against the Judiciary. This Court
held that the detention of Ram Narayan was illegal because Ram Narayan
was being detained without any order of remand by the Magistrate. In
Ram Narayan's case (supra) there was no aspect of the bar under Article
359. It is not correct to say that the suspension of fundamental rights or
of their enforcement can increase the power of the Executive. The effect
of suspension or enforcement of fundamental rights is that an individual
cannot move any court for the enforcement of ins fundamental right to
personal liberty for the time being.

71. Reference to Articles 256, 265 and 361 was made by the respondents
to show that Article 21 is not the repository of rights to life and liberty.
These references are irrelevant. Article 256 does not confer any right on
any person. It deals with relations between the Union and the State.
Article 265 has nothing to do with the right to personal liberty. Article
361(3) refers to the issue of a process from any court which is a judicial
act and not any Executive action. In any event, these Articles have no
relevance in the present appeals.

72. Reference was made by the respondents to an accused filing an

appeal relating to criminal proceedings to show that Article 21 is not the
sole repository of right to life and liberty. In a criminal proceeding the
accused defends himself against the accusation of an offence against him.
He does not move any court for the enforcement of ins fundamental right
of personal liberty. In an appeal against the order of conviction the
accused challenges the correctness of the judicial decision. An appeal or
revision is a continuation of the original proceeding. (See Garikapatti
Veeraya v. N. Subbiah Choudhury MANU/SC/0008/1957 : [1957]1SCR488
and Ahmedabad Mfg. and Calico Ptg. Co. Ltd. v. Ram Tahal Ramnand and
Ors. MANU/SC/0031/1972 : (1972)IILLJ165SC .

73. The respondents posed the question whether a decree given against
the Government could be enforced because of the Presidential Order. This
is irrelevant. However, a decree conclusively determines the rights of the
parties in the suit and after a decree is passed the right of the decree-
holder is not founded on the right which is recognised by the decree but
on the decree itself. This right arising from a decree is not a fundamental
right, and, therefore, will not be prima facie covered by a Presidential
Order under Article 359(1).

74. The other examples given by the respondents are seizure of property
by Government, requisition by Government contrary to Articles 31 and
19(1)(f). If any seizure of property is illegal or an acquisition or
requisition is challenged it will depend upon the Presidential Order to find
out whether the proceedings are for the enforcement of fundamental
rights covered by the Presidential Order.

75. Fundamental rights including the right to personal liberty are

conferred by the Constitution. Any pre Constitution rights which are
included in Article 21 do not after the Constitution remain in existence
which can be enforced if Article 21 is suspended. If it be assumed that
there was any pre-constitutional right to personal liberty included in
Article 21 which continued to exist as a distinct and separate right then
Article 359(1) will be an exercise in futility. In Makhan Singh's case
(supra) there was not suggestion that apart from Article 21 there was any
common law or pre Constitution right to personal liberty.

76. The theory of eclipse advanced on behalf of the respondents is

untenable. Reliance was placed on the decision in Bhikaji Narain Dhakras
and Ors. v. The State of Madhya Pradesh and Anr. MANU/SC/0016/1955 :
[1955]2SCR589 . The theory of eclipse refers to pre-constitutional laws
which were inconsistent with fundamental rights. By reason of Article
13(1) such laws did not become void but became devoid of legal force.
Such laws became eclipsed for the time being. The theory of eclipse has
no relevance to the suspension of the enforcement of fundamental rights
under Article 359(1). The constitutional provisions conferring fundamental
rights cannot be said to be inconsistent with Article 13(1).

77. Article 21 is not a common law right. There was no pre-existing

common law remedy to habeas corpus. Further, no common law right
which corresponds to a fundamental right can exist as a distinct right,
apart from the fundamental right. See Dhirubha Devisingh Gohil v. The
State of Bombay (supra) and B. Shankar Rao Badatni's case (supra). In
Gohil's case (supra) the validity of the Bombay Act of 1949 was
challenged on the ground that it took away or abridged fundamental
rights conferred by the Constitution. The Act was held to be beyond
question in view of Article 31B which had been inserted in the
Constitution by the First Amendment and the Act being mentioned as
Item 4 of the 9th Schedule. It was said that one of the rights secured by
Part III of our Constitution is a right that the property shall be acquired
for a public purpose and under a law authorising such acquisition and
providing for compensation. That is also the very right which was
previously secured to a person under Section 299 of the Government of
India Act, 1935. This Court said that what under the Government of India
Act was a provision relating to the competency of the Legislature, was
also clearly in the nature of a right of the person affected. The right under
Article 299 which was pre-existing, became along with other fundamental
rights for the first time secured by our Constitution when grouping them
together as fundamental rights.

78. The respondents gave the example that although Section 12(2)' of
the Act makes it obligatory on the Executive to revoke the detention order
and if the Executive does not do so such Executive action will amount to
non-compliance with the Act. Here again, the detenu cannot enforce any
statutory right under the Act for the same reason that it will amount to
enforce ins fundamental right to personal liberty by contending that the
Executive is depriving him of ins personal liberty not according to
"procedure established by law". Similarly, the example given of an illegal
detention of a person by a Police Officer will be met with the same plea.

79. An argument was advanced on behalf of the respondents' that if pre-

existing law is merged in Article 21 there will be conflict with Article 372.
The expression "law in force" in Article 372 cannot include laws which are
incorporated in the Constitution viz., in Part III. The expression "law" in
Articles 19(1) and 21 takes in statute law.

80. The respondents contended that permanent law cannot be repealed

by temporary law. The argument is irrelevant and misplaced. The
Presidential Order under Article 359(1) is not a law. The Order does not
repeal any law either. The suggestion that Article 21 was intended to
afford protection to life and personal liberty against violation by private
individuals was rejected in Shamdasani's case (supra) because there
cannot be any question of one private individual being authorised by law
to deprive another of ins property or taking away the life and liberty of
any person by procedure established by law. The entire concept in Article
21 is against Executive action. In Vidya Verma's case (supra) this Court
said that there is no question of infringement of fundamental right under
Article 21 where the detention complained of is by a private person and
not by a State or under the authority or orders of a State.

81. The Act in the present case is valid law and it has laid down procedure
of applying the law. The validity of the Act has not been challenged and
cannot be challenged. The Legislature has competence to make the law.
The procedure, therefore, cannot be challenged because Articles 21 and
22 cannot be enforced. The suggestion of the respondents that the power
of the Executive is widened is equally untenable.
82. The suggestion on behalf of the respondents that the right to private
defence is available and if any one resorted to private defence in resisting
detention there might be civil war is an argument to excite emotion. If
there are signs of civil war, as the respondents suggested," it is for the
Government of our country to deal with the situation. It is because of
these aspects that emergency is not justiciable because no court can have
proper standard to measure the problems of emergency in the country. If
any person detained finds that the official has the authority to arrest him
no question of resistance arises and if there is no authority the same
cannot be challenged during the operation of the Presidential Order but
the person shall have ins remedy for any false imprisonment after the
expiry of the Presidential Order.

83. The respondents submitted that if Article 21 were the repository of a

right to personal liberty it would mean that Article 21 destroyed pre-
existing rights and then made a fresh grant. There is no question of
destruction of any right. Our fundamental rights came into existence for
the first time under the Constitution. The fact that Section 491 of the old
Criminal Procedure Code has been abolished in the new Code establishes
that the pre-existing right was embodied as a fundamental right in the
Constitution. The right to personal liberty became identified with
fundamental right to personal liberty under Article 21.

84. The third question is whether Rule of Law overrides the Presidential
Order. The Presidential Order does not alter or suspend any law.

The rule of law is not a mere catchword or incantation. Rule of law is not
a law of nature consistent and invariable at all times and in all
circumstances.
The certainty of law is one of the elements in the concept of the Rule of
Law but it is only one element and, taken by itself, affords little guidance.
The essential feature of Rule of Law is that the judicial power of the State
is, to a large extent, separate from the Executive and the Legislature.
Rule of Law is a normative as much as it is a descriptive term. It
expresses an ideal as much as a juristic fact. The Rule of Law is not
identical with a free society. If the sphere of the Rule of Law involves
what can be called the "Existence of the Democratic System" it means
two things. In the first place the individual liberties of a democratic
system involve the right of the members of each society to choose the
Government under which they live. In the second place come freedom of
speech, freedom of assembly and freedom of association. These are not
absolute rights, Their exceptions are justified by the necessity of
reconciling the claims of different individuals to those rights. The criterion
whereby this reconciliation can be effected is the concern of the law to
ensure that the status and dignity of all individuals is to the greatest
possible extent observed.

85. Freedom of speech may be limited by conceptions as "clear and

present danger", "attack on the free democratic order". The institutions
and procedures by which the fundamental regard for the status and
dignity of the human person can be effected is that rights and remedies
are complimentary to the other. The phrases such as "equality before law"
or "equal protection of the laws" are in themselves equivocal. The
supremacy of the law means that the faith of civil liberty depends on the
man who has to administer civil liberty much more than on any legal
formula. Aristotle, pointed out that the rigid certainty of law is not
applicable to all circumstances. This plea would be echoed by the modern
administrator called upon to deal with the ever changing circumstances of
economic and social life of the nation.

86. The respondents contend that all executive actions which operate to
the prejudice of any person must have the authority of law to support it.
Reliance is placed on the decisions in Rai Sahib Ram Jawaya Kapur and
Ors. v. The State of Punjab MANU/SC/0011/1955 : [1955]2SCR225 , M. P.
State v. Bharat Singh MANU/SC/0043/1967 : [1967]2SCR454 , Collector
v. Ibrahim & Co. MANU/SC/0070/1970 : [1970]3SCR498 , Bennet
Coleman & Co. v. Union of India MANU/SC/0038/1972 : [1973]2SCR757
and Meenakshi Mills v. Union of India MANU/SC/0064/1973 :
[1974]2SCR398 . This is amplified by the respondents to mean that the
Executive cannot detain a person otherwise than under any legislation
and on the suspension of Article 21 or the right to enforce it, the
Executive' cannot get any right to act contrary to law.

87. The Executive cannot detain a person otherwise than under valid
legislation. The suspension of any fundamental right does not effect this
rule of the Constitution. In normal situations when there is no emergency
and when there is no Presidential Order of the type like the present the
situation is different. In Bharat Singh's case (supra) this Court was
concerned with the pre-emergency law and an order of the Executive
thereunder. It was held that the pre-emergency law was void as violative
of Article 19, and, therefore, such a law being pre-emergency law could
not claim the protection under Article 358.

88. The ratio in Bharat Singh's case (supra) is this : Executive action
which operates to the prejudice of any person must have the authority of
law to support it. [See also Ram Jaway a Kapur's case (supra)]. The
provisions of Article 358 do not detract from that rule. Article 358
expressly authorises the State to take legislative or Executive action
provided such action was competent for the State to make or take but for
the provisions contained in Part III of our Constitution. Article 358 permits
an Executive action under a law which may violate Article 19 but if the
law is void or if there be no law at all, the Executive action will not be
protected by Article 358. Bharat Singh's case (supra) considered the
effect of Article 358 so far the Executive action is concerned, but was not
concerned with any Executive action taken infringing any fundamental
right mentioned in a Presidential Order under Article 359(1).

89. Ibrahim's case (supra), the Bannett Coleman case (supra) and the
Meenakshi Mills case (supra) follow Bharat Singh's case (supra) regarding
the proposition that the terms of Article 358 do not detract from the
position that the Executive cannot act to the prejudice of a person without
the authority of law.

90. The ratio in Bharat Singh's case (supra) is that the Madhya Pradesh
Public Security Act was brought into force before the emergency. Article
358 empowers the legislature to make a law violating Article 19. Article
358 does not mean that a pre-emergency law violating Article 19 would
have constitutional validity during the period of emergency. The Executive
action which was taken during the emergency on the basis of the pre-
emergency law did not have the authority of law inasmuch as the Madhya
Pradesh Act of 1959 was a void law when it was enacted in violation of
Article 19.

91. In Ibrahim's case (supra) the Sugar Control Order 1963 permitted
allocation of quotas of sugar. The State Government ordered that the
sugar allocated to the two cities of Hyderabad and Secunderabad were in
entirety to be given to the Co-operative -Stores. Under. Article 358 the
respondents there could not challenge an Executive action which, but for
the provisions contained Article 19, the State was competent to take. But
the Executive order there was one which had the effect of cancelling the
licences of the respondents which could be done only after an enquiry
according to the procedure prescribed in the order. The Executive order
there was contrary to the provisions contained in the Sugar Control Order.
In other words, the Executive action which was in breach of the order
could not be immune from attack under Article 358. In the Bennet
Coleman case (supra) it was said that the Newsprint Control Order could
not authorise the number of pages. In the Meenakshi Mills case (supra) it
was said that the Yarn Control Order could not be resisted on the ground
that it had BO direct impact on the rights of the mills.

92. In these four cases referred to there was no question of enforcement

of fundamental right mentioned in the Presidential Order. These four
cases were not concerned with any Executive action taken infringing any
fundamental right mentioned in a Presidential Order under Article 359.
93. The suspension of right to enforce fundamental right has the effect
that the emergency provisions in Part XVIII are by themselves the rule of
law during times of emergency. There cannot be any rule of law other
than the constitutional rule of law. There cannot be any pre Constitution
or post Constitution Rule of Law which can run counter to the rule of law
embodied in the Constitution, nor can there be any invocation to any rule
of law to nullify the constitutional provisions during the times of
emergency.

94. The respondents relied on the decision in Eshugbayi Eleko v. Officer

Administering the Government of Nigeria [1931] A. C 662 in support of
the proposition that Rule of Law will always apply even when there is
Presidential Order. It has to be realised that the decision in Eshuqbavi
Eleko cannot over-reach our Constitution.

95. Article 358 does not permit the Executive action to have the authority
of law. Article 359 prevents the enforcement of the fundamental rights
mentioned in the Presidential Order. It bars enforcement against any
legislation or executive action violating a fundamental right mentioned in
the Presidential Order.

96. The principle in Eshugbayi Eleko's case (supra) will not apply where-
Article 359 is the paramount and supreme law of the country. There is no
question of amendment of the concept of rule of law or any suggestion of
destruction of rule of law as the respondents contended because the
Presidential Order under Article 359 neither nullifies nor suspends the
operation of any law. The consequence of the Presidential Order is of a
higher import than the suspension of any law because the remedy for the
enforcement of fundamental rights is barred for the time being because of
grave emergency.

97. The respondents contend that if an individual officer acts outside ins
authority, it will be an illegal act and the High Court under Article 226 can
deal with it. Reliance is placed on the English decision in Christie and Anr.
v. Leachinsky [1947] A. C. 573 in support of the proposition that the
action of an individual officer will be an Executive action when he acts
within the scope of ins authority.

98. The decision in Leachinsky's case (supra) is an action for false,

imprisonment and damages against two persons of Liverpool City Police
for wrongfully arresting a person without informing that person of the
grounds for arrest. That case has no relevance here.

99. An individual officer acting within the scope of ins official duty would
not cease to be so if he makes an order which is challenged to be not in
compliance with the statute under which he is authorised to make the
order. Any challenge to the order of detention would come within the fold
of breach of fundamental right under Article 21, namely, deprivation of
personal liberty.

100. The obligation of the Executive to act in accordance with the Act is
an obligation as laid down in Article 21. If such an obligation is not
performed, the violation is of Article 21. It will mean that the right of the
person affected will be a violation of fundamental right.

101. The expression "for any other purpose" in Article 226 means for any
purpose other than the enforcement of fundamental rights. A petition for
habeas corpus by any person under Article 226 necessarily involves a
question whether the detention is legal or illegal. An Executive action if
challenged to be ultra vires a statute cannot be challenged by any person
who is not aggrieved by any such ultra vires action.

102. Section 18 of the Act has been argued by the respondents to mean
that a malafide order of detention cannot be regarded as an order made
Under the Act. Section 18 has also been challenged to suffer from the
vice of excessive delegation. Section 18 has been amended by the words
"in respect of whom an order is made or purported to be made under
Section 3" in substitution of the words "detained under this Act". The
result is that no person in respect of whom and order is made or
purported to be made under Section 3 shall have any right to personal
liberty by virtue of natural law or common law, if any. It has been earlier
held that there is no natural law or common law right to habeas corpus.
The respondents rely on the decisions in Poona Municipal Corporation v.
D. N. Deodher MANU/SC/0229/1964 : [1964]8SCR178 , Kala Bhandar v.
Munc. Committee MANU/SC/0267/1965 : [1966]59ITR73(SC) , Indore
Municipality v. Niyatnatulla MANU/SC/0432/1969 : A. I. R. 1971 S. C. 97
and Joseph v. Joseph [1966] 3 All. E. R. 486 in support of the proposition
that the expression purports" means "has the effect of". The respondents
contend that Section 18 of the Act can apply only when a valid order of
detention is made. If the section be interpreted to include malafide orders
or orders without jurisdiction then it is said that such interpretation will
prevail upon the judicial power and violate Article 226.

103. The expression "purported to be done" occurs in Section 80 of the

CPC. The expression "purported to be made under Section 3 of the Act" in
Section 18 will include an executive act made by the District Magistrate
within the scope of ins authority as District Magistrate, even if the order is
made in breach of the section or is mala fide. (See Hari Singh v. The
Crown [1939] F. C. R 159 Bhagchand Dagadusa v. Secretary of State for
India L. R. 54 I. A, 338, Albert West Meads v. The King
MANU/PR/0018/1948, Anisminic v. Foreign Compensation etc. [1969] 1
All. E R. 208 and Dakshina Ranjan Ghosh v. Omar Chand Oswal I. L. R. 50
Cal., 992. As long as the District Magistrate acts within the scope of ins
authority as a District Magistrate an order passed by him is an order
made or purported to be made under Section 3 of the Act.

104. The section applies to any person in respect of whom an order has
been made or purported to be made. There is no question of excessive
delegation. Section 18 of the Act lays down the law. Section 18 of the Act
is only an illustration of an application of the Act by the officers
authorised by the Act.

105. Section 18 identifies the person to whom it applies and in what

cases it applies to such a person. The word "purport" covers acts alleged
to be malafide. The decisions to which reference has been made indicate
that the acts whatever their effect be are all acts made or purported to be
made under the Act.

106. A contention is advanced by the respondents that Section 18 of the

Act will apply only to post-detention challenge. This is wrong. Section 18
applies to all orders of detention.

107. Counsel on behalf of the respondents submitted that the High Courts
had only heard the matters on preliminary points and not on the area of
judicial scrutiny, and, therefore, this Court should not express any view
on the latter question. There are three principal grounds why this Court
should express views. First. The Bombay High Court (Nagpur Bench) has
read down Section 16A(9) of the Act. One of the appeals is from the
judgment of the Bombay High Court (Nagpur Bench). This judgment
directly raises the question of Section 16A(9) of the Act. Second. The
Additional Solicitor General made ins submissions on this part of the case
and all counsel for the respondents made their submissions in reply.
Considerable time was spent on hearing submissions on both sides. Time
of the Court is time of the nation. Third. It is only proper that when so
much time has been taken on these questions this Court should express
opinions and lay down areas for judicial scrutiny.

108. The respondents contend that if the Presidential Order does not bar
the challenge on the ground that the orders are malafide or that the
orders are not made in accordance with the Act the non-supply of
grounds will not affect the jurisdiction of the Court. It is said by the
respondents that the scope of judicial scrutiny is against orders. The
respondents submit that court has gone behind the orders of detention in
large number of cases.
109. The respondents submit as follows : It is open to the Court to judge
the legality of the orders. This the Court can do by going beyond the
order. Though satisfaction is recorded in the order and such recording of
satisfaction raises the presumption of legality of order the initial onus on a
detenu is only to the extent of creating "disquieting doubts" in the mind
of the Court. The doubts are that the orders are based on irrelevant non-
existing facts or on facts on which no reasonable person could be satisfied
in respect of matters set out in Section 3 of the Act. If such a prima facie
case is established the burden shifts and the detaining authority must
satisfy the court about the legality of detention and the detaining
authority must remove doubts on all aspects of legality which have been
put in issue. If the detaining authority for whatever reasons fails to satisfy
the court either by not filing an affidavit or not placing such facts which
may resolve the doubts about the legality of detention the court may
direct release of the detenus.

110. The respondents submit that all that they want is that if the detenus
challenge the orders to be malafide or to be not in compliance with the
statute and if the court does not have any "disquieting doubts" the court
will dismiss the petitions. If the court has any such doubt the court will
call for the return. On a return being made if the court is satisfied that the
return is an adequate answer the court will dismiss the petition. If the
court wants to look into the grounds the court will ask for the production
of the grounds and the court itself will look into the grounds but will not
show the grounds to the detenus. In short, the respondents submit that
the jurisdiction of the court to entertain the application should not be
taken away as a result of the Presidential Order.

111. The appellants submit that if Article 359 is not a bar at the threshold
and if the Court can entertain a petition, judicial review should be limited
within a narrow area. In the forefront 16A(9) of the Act is put because
that section forbids disclosure of grounds and infarction in the possession
of the detaining authority. The Nagpur Bench of the Bombay High Court
read down Section 16A(9) but the Additional Solicitor General submitted
that Section 16A(9) should not be read down because it enacts a rule of
evidence.

112. The Additional Solicitor General submitted as follows : The scrutiny

by courts will extend to examining first whether detention is in exercise or
purported exercise of law. That will be to find out whether there is a legal
foundation for detention. The second enquiry will be whether the law is
valid law. If it is a pre-emergency law the same can be tested as to
whether it was valid with reference to Articles 14, 19, 21 and 22. If it is
an emergency legislation the validity of law cannot be gone into first,
because of Article 358, and, second, because of the Presidential Order
under Article 359. The other matters which the court may examine are
whether the detaining authority is a competent authority under the law to
pass the order, whether the detenu has been properly identified, whether
the stated purpose is one which ostensibly conforms to law and whether
the procedural safeguards enacted by the law are followed.

113. With regard to grounds of detention it is said by the Additional

Solicitor General that if the grounds are furnished or are required to be
furnished the Court can examine whether such grounds ex-facie justify
reasonable apprehension of the detaining authority. Where the grounds
are not to be furnished, it is said, that this enquiry does not arise. The
Additional Solicitor General submits that judicial scrutiny cannot extend to
three matters--first, objective appraisal of the essential subjective
satisfaction of the detaining authority, second, examination of the
material and information before the detaining authority for the purpose of
testing the satisfaction of the authority, and, third, directing compulsory
production of the file relating to detenu or drawing and adverse inference
from the non-production thereof.

114. Material and information on which orders of preventive detention are

passed necessarily belong to a class of documents whose disclosure would
impair the proper functioning of public service and administration. The file
relating to a detention order must contain intelligence reports and like
information whose confidentiality is beyond reasonable question. This was
the view taken in the Liver-sidge case [1942] A. C. 206. See also Rogers
case [1973] A. C.1 388. If privilege were to be claimed in each case such
a claim would in terms of Sections 123 and 162 of the Evidence Act have
been invariably upheld. Article 22(6) also contemplates such claims on
behalf of the State. That is why instead of leaving it to individual decision
in each case or to the discretion of individual detaining authorities to
make a claim for privilege, the legislature has enacted Section 16A(9)
providing for a general exclusion from evidence of all such material as
would properly fall within the classification.

115. Section 16A cannot be said to be an amendment to Article 226. The

jurisdiction to issue writs is neither abrogated nor abridged. A claim of
privilege arises in regard to documents or information where a party to a
suit or proceeding is called upon to produce evidence. Section 16A(9)
enacts provisions analogous to a conclusive proof of presumption. Such a
provision is a genuine rule of evidence. It is in the nature" of an
Explanation to Sections 123 and 162 of the Evidence Act. Section 16A(9)
is a rule of evidence. therefore, when the detaining authority is bound by
Section 16A(9) and forbidden absolutely from disclosing such material no
question can arise for adverse inference against the authority. If a detenu
makes out a prime facie case and the court calls for a return, the affidavit
of the authority will be an answer. The Court cannot insist on the
production of the file or hold that the case of the detenu stands
unrebutted by reason of such non-disclosure. To hold otherwise would be
to induce reckless averments of malafides to force production of the file
which is forbidden by law.

116. Section 16A(9) cannot be read down implying an exception in favour

of disclosure to the Court as was suggested by the Bombay High Court
(Nagpur Bench). Such disclosure to the court alone and not to the detenu
will introduce something unknown to judicial procedure. This will bring in
an element of arbitrariness and preclude both parties from representing
their respective cases. Further, it would substitute or super-impose
satisfaction of the Court for that of the Executive. This Court has held that
the view of the detaining authority is not to be substituted by the view of
the court. (See State of Bombay v. Atma Ram Sridhar Vaidya
MANU/SC/0015/1951 : 1951CriLJ373 , Shibban Lal Sak-sena v. The State
of Uttar Pradesh and Ors. MANU/SC/0016/1953 : [1954]1SCR418 ,
Rameshwar Shaw v. District Magistrate, Burdwan and Anr.
MANU/SC/0041/1963 : 1964CriLJ257 , Jaichand Lal v. W. Bengal
MANU/SC/0051/1966 : [1966] Supp. S. C. R. 464, and Ram Manohar
Lohia's case (supra).

117. The theory of good return mentioned in the English decisions is

based on the language of Habeas Corpus Act and the Rules of the
Supreme Court of England. The practice of our Court is different. The
respondents relied on M. M. Damnoo v. J. & K. State
MANU/SC/0175/1972 : 1972CriLJ597 in support of the proposition that
the file was produced there and also contended that Section 16A(9) can
be struck down as happened in A, K. Gopalan's case (supra) where
Section 14 of the Preventive Detention Act was struck down. When A. K.
Gopalan's case (supra) was decided Article 22 was in force. Prevention of
court from seeing the grounds contravened Article 22. There was no
question of privilege. Section 14 of the Preventive Detention Act in A. K.
Gopalan's case (supra) offended Article 22. (See A. K. Gopalan's case
MANU/SC/0012/1950 : 1950CriLJ1383 .

118. In Damnoo's case (supra) there was no question of privilege. The file
was produced but there was no direction of the court to produce the file.
Second. There was no aspect of Article 359. Third. In Damnoo's case
(supra) the analogy of Section 14 of the Preventive Detention Act in
Gopalan's case was considered. No provision like Section 16A(9) was on
the scene. Fourth, The State did not rely on the proviso to Section 8 of
the relevant Act there to contend that the file could not be produced.
119. Section 16A(9) of the Act contains definite indications of implied
exclusion of judicial review on the allegations of malafide. It is not
possible for the court to adjudicate effectively on malafides. The reason
why Section 16A has been enacted is to provide for periodical review by
Government and that is the safeguard against any unjust or arbitrary
exercise of power.

120. It will be useless to attempt to examine the truth of the fact alleged
in the order in a case when the fact relates to the personal belief of the
relevant authority formed at least partly on grounds which he is not
bound to disclose. It is not competent for the court to decide whether the
impugned order of detention under Section 3(1) or the declaration under
Section 16A(2) and (3) of the Act during the emergency is a result of
malice or ill-will. The reason is that it is not at all possible for the court to
call for and to have a look at the grounds of the order of detention under
Section 3(1) or the declaration under Section 16A(2) and (3) of the Act
that induced the satisfaction in the mind of the detaining authority that it
was necessary to detain the person or to make a declaration against him.

121. The grounds of detention and any information or materials on which

the detention and the declaration were made are by Section 16A(9) of the
Act confidential and deemed to refer to matters of State and to be against
public interest to disclose. No one under the provisions of the Act and in
particular Section 16A(9) thereof shall communicate or disclose such
grounds, materials or information except as provided in Section 16A(5)
and (8) of the Act. Sub-sections (5) and (8) have no application in these
cases. The court cannot strike down the order as vitiated by malafide and
grant relief since it is not possible for the court without the examination of
such grounds, materials and information to decide whether the order of
detention is the result of malice or ill-will. When the court cannot give any
relief on that basis the contention of malafides is not only ineffective but
also untenable. (See Lawrence Joachim Joesph D 'Souza v. The State of
Bombay MANU/SC/0007/1956 : 1956CriLJ935

122. The provision for periodical review entrusted to the Government

under Section 16A(4) of the Act in the context of emergency provides a
.sufficient safeguard against the misuse of power of detention or arbitrary
malafide detention during the emergency. The Government is in full
possession of the grounds, materials and information relating to the
individual detentions while exercising the power of review.

123. The jurisdiction of the court in tunes of emergency in respect of

detention under the Act is restricted by the Act because the Government
is entrusted with the task of periodical review. Even if the generality of
the words used in Section 3(1) of the Act may not be taken to show an
intention to depart from the principle in ordinary times that the courts are
not deprived of the jurisdiction where bad faith is involved, there are
ample indications in the provisions of the Act, viz., Section 16A(2),
proviso to Section 16A(3), Section 16A(4), Section 16A(5), Section
16A(7)(ii) and Section 16A(9) of the Act to bar a challenge to the
detention on the basis of malafides. (See Smith v. East Elloe Rural District
Council and Ors. [1956] A.C. 736 and Ram Manohar Lohia's case (supra)
at 716, 732). This Court said that an action to decide the order on the
grounds of malafides does not lie because under the provisions no action
is maintainable for the purpose. This Court also referred to the decision in
the Liver-sidge case (supra) where the Court held that the jurisdiction of
the court was ousted in such way that even questions of bad faith could
not be raised.

124. The production of the order which is duly authenticated constitutes a

peremptory answer to the challenge. The onus of showing that the
detaining authority was not acting in good faith is on the detenu. This
burden cannot be discharged because of the difficulty of proving bad faith
in the exercise of subjective discretionary power vested in the
administration. De Smith in ins Judicial Review of Administrative Actions
1973 Edition at page 257 scq. has said that the reservation for the case of
bad faith in hardly more than a formality. Detenu will have to discharge
the impossible burden of proof that the detaining authority did not
genuinely believe he had reasonable cause.

125. In Lawrence Joachim Joseph D' Souza's. case (supra) malafide

exercise of power was untenable having regard to the grounds on . which
detention was based. In the context of emergency Section 3(1) of the Act
confers an unlimited discretion which cannot be examined by courts.. This
rule of construction of the phrases "is satisfied", "in the opinion of", "it
appears to be", "has reason to believe" adopted by courts in tunes of
national emergency will be rendered nugatory and ineffective if
allegations of malafides are gone into. A distinction is to be drawn
between purpose and motive so that where an exercise of power fulfils
the purpose for which power was given, it does not matter that he who
exercised it is influenced by an extraneous motive because when an act is
done which is authorised by the Legislature it is not possible to contest
that discretion. So long as the authority is empowered by law action
taken to realise that purpose is not malafide. when the order of detention
is on the face of it within the power conferred, the order is legal.

126. The width and amplitude of the power of detention under Section 3
of the Act is to be adjudged in the context of the emergency proclaimed
by the President. The Court cannot compel the detaining authority to give
the particulars of the grounds on which he had reasonable cause to
believe that it was necessary to exercise this control. An investigation into
facts or allegations of facts based on malafides is not permissible because
such a course will involve advertence to the grounds of detention and
materials constituting those grounds which is not competent in the
context of the emergency.

127. For the foregoing reasons the conclusions are as follows :--

First. In view of the Presidential Order dated 27 June, 1975 under

Clause (1) of Article 359 of our Constitution no person has locus
standi to move any writ petition under Article 226 before a High
Court for habeas corpus or any other writ or order or direction to
enforce any right to personal liberty of a person detained under
the Act on the grounds that the order of detention or the
continued detention is for any reason not under or in compliance
with the Act or is illegal or malafide.

Second. Article 21 is the sole repository of rights to life and

personal liberty against the State. Any claim to a writ of habeas
corpus is enforcement of Article 21 and, is, therefore, barred by
the Presidential Order.

Third. Section 16A(9) of the Act is valid. It is a rule of evidence

and it is not open either to the detenu or to the court to ask for
grounds of detention.

Fourth. It is not competent for any court to go into questions of

malafides of the order of detention or ultra vires character of the
order of detention or that the order was not passed on the
satisfaction of the detaining authority.

128. The appeals are accepted. The judgments of the High Courts are set
aside.

H.R. Khanna, J.

129. Law of preventive detention, of detention without trial is an

anathema to all those who love personal liberty. Such a law makes deep
inroads into basic human freedoms which we all cherish and which occupy
prime position among the higher values of life. It is, therefore not
surprising that those who have an abiding faith in the rule of law and
sanctity of personal liberty do not easily reconcile themselves with a law
under which persons can be detained for long periods without trial. The
proper forum for bringing to book those alleged to be guilty of the
infraction of law and commission of crime, according to them, is the court
of law where the correctness of the allegations can be gone into in the
light of the evidence adduced at the trial. The vesting of power of
detention without trial in the executive, they assert, has the effect of
making the same authority both the prosecutor as well as the judge and
is bound to result in arbitrariness.

130. Those who are entrusted with the task of administering the land
have another viewpoint. According to them, although they are conscious
of the value of human liberty, they cannot afford to be oblivious of the"
need of the security of the State or the maintenance of public order.
Personal liberty has a value if the security of the State is not jeopardised
and the maintenance of public order is not threatened. There can be the
administrator assert, no freedom to destroy freedom. Allegiance to ideals
of freedom cannot operate in vacuum. Danger lurks and serious
consequences can follow when thoughts become encysted in fine phrases
oblivious of political realities and the impact of real politik. No government
can afford to take risks in matters relating to the security of the State.
Liberty, they accordingly claim, has to be measured against community's
need for security against internal and external peril.

131. It is with a view to balancing the conflicting viewpoints that the

framers of the Constitution made express provisions for preventive
detention and at the same time inserted safeguards to prevent abuse of
those powers and to mitigate the rigour and harshness of those
provisions. The dilemma which faced the Constitution makers in balancing
the two conflicting viewpoints relating to liberty of the subject and the
security of the State was not, however, laid to rest for good with the
drafting of the Constitution. It has presented itself to this Court in one
form or the other ever since the Constitution came into force. A, K.
Gopalan's MANU/SC/0012/1950 : 1950CriLJ1383 was the first case
wherein a Bench of six Judges of this Court dealt with the matter. Another
Bench of seven Judges again dealt with the matted in 1973 in the case of
Shambu Nath Sarkar v. State of West Bengal and Ors.
MANU/SC/0163/1973 : [1974]1SCR1 . In between, a number of Benches
have dealt with the various facets of the question. One such facet has
now presented itself to this Constitution Bench.

132. The question posed before us is whether in view of the Presidential

order dated June 27, 1975 under Clause (1) of Article 359 of the
Constitution, any petition under Article 226 before a High Court for writ of
habeas corpus to enforce the right of personal liberty of a person detained
under the Maintenance of Internal Security Act, 1971 (Act 26 of 1971)
(hereinafter referred to as MISA) as amended is maintainable. A
consequential question which may be numbered as question No. 2 is, if
such a petition is maintainable, what is the scope or extent of judicial
scrutiny. The above questions arise in criminal appeals Nos. 279 of 1975,
355 and 356 of 1975, 1845-49 of 1975, 380 of 1975, 1926 of 1975, 389
of 1975, 3 of 1976, 41 of 1976 and 46 of 1976. These appeals have been
filed against the orders of Madhya Pradesh High Court, Allahabad High
Court, Karnataka High Court, Delhi High Court, Nagpur Bench of Bombay
High Court and Rajasthan High Court whereby the High Courts repelled
the preliminary objections relating to the maintainability of petitions
under Article 226 for writs of habeas corpus on account of 'Presidential
order dated June 27, 1975. On the second question, some of the High
Courts expressed the view that this was a matter which would be gone
into while dealing with individual cases on their merits. The other High
Courts went into the matter and expressed their view. This judgment
would dispose of all the appeals.

133. MISA was published on July 2, 1971. Section 2 of the Act contains
the definition clause. Section 3 grants powers to make orders for
detaining certain persons and reads as under:

3. (1) The Central Government of the State Government may,--

(a) if satisfied with respect to any person (including a

foreigner) that with a view to preventing him from acting
in any manner prejudicial to--

(i) the defence of India, the relations of India

with foreign powers, or the security of India, or

(ii) the security of the State or the maintenance

of public order, or

(iii) the maintenance of supplies and services

essential to the community, or

(b) if satisfied with respect to any foreigner that with a

view to regulating ins continued presence in India or with
a view to making arrangements for ins expulsion from
India,

it is necessary so to do,, make an order directing that

such person be detained.

(2) Any of the following officers, namely :--

(a) district magistrates,

(b) additional district magistrates specially empowered in

this behalf by the State Government,
 (c) Commissioners of Police, wherever they have been
appointed,

may, if satisfied as provided in Sub-clauses (ii) and (iii)

of Clause (a) of Sub-Section (1),, exercise the power
conferred by the said Sub-section.

(3) When any order is made under this section by an officer

mentioned in Sub-section (2), he shall forthwith report the fact to
the State Government to which he is subordinate together with
the grounds on which the order has been made and such other
particulars as in ins opinion have a bearing on the matter, and;
no such order shall remain in force for more than twelve days
after the making thereof unless in the meantime it has been
approved by the State Government:

Provided that where under Section 8 the grounds of

detention are communicated by the authority making.
the order after five days but not later than fifteen days
from the date of detention, this Sub-section shall apply
subject ,to the modification that for the words 'twelve
days', the words 'twenty-two days' shall be substituted.

(4) When any order is made or approved by the State

Government under this section, the State Government shall
Within seven days, report the fact to the Central Government
together with the grounds on which the order has been made and
such other particulars as in the opinion of the State Government
have a bearing on the necessity for the order.

Section 4 and 5 deal respectively with execution of detention orders and

the power to regulate place and conditions of detention. According to
Section 6, detention orders are not to be invalidated or inoperative on the
ground that the person to be detained is outside the limits of the
territorial jurisdiction of the Government or officer making the order' or
that the place of detention of such person is outside the said limits.
Section 8 requires that the grounds of order of detention should be
disclosed to persons affected by the order and he should be granted the
earliest opportunity of making a representation against the order. Section
9 deals with the Constitution of Advisory Boards. Section 10 makes
provision for reference to Advisory Boards. Section 11 prescribes the
procedure of Advisory Boards and section 12 requires that action should
be taken in accordance with the report of the Advisory Board. According
to section 13, the maximum period of detention shall be 12 months from
the date of detention. Section 14 confers power of revocation of detention
orders. Section 15 confers power upon the appropriate Government to
temporarily release the detained persons. Section 16 gives protection to
action taken in good faith. Section 17 provides for detention up to two
years in certain cases of foreigners. Section 18, which has subsequently
been re-numbered as Section 19, provides for the repeal of the
Maintenance of Internal Security Ordinance and the saving clause.

134. According to Clause (1) of Article 352 of the Constitution, if the

President is satisfied that a grave emergency exists whereby the security
of India or of any part of the territory thereof is threatened, whether by
war or external aggression or internal disturbance, he may, by
Proclamation, make a declaration to that effect. On December 3,, 1971
the President of India issued the following proclamation of emergency:

In exercise of the powers conferred by Clause (1) of Article 352

of the Constitution, I, V. V. Giri, President of India; by this
Proclamation declare that a grave emergency exists whereby the
security of India is threatened by external aggression.

V. V. Giri
President
Clause (1) of Article 359 of the Constitution reads as under:

Where a Proclamation of emergency is in operation, the President

may by order declare that the right to move any court for the
enforcement of such of the rights conferred by Part III as may be
mentioned in the order and all proceedings pending in any court
for the enforcement of the rights so mentioned shall remain
suspended for the period during which the Proclamation is in
force or for such shorter period as may be specified in the order.

On November 16, 1974 the President of India made the following order:

In exercise of the powers conferred by Clause (1) of article 359

of the Constitution, the President hereby declares that--

(a) the right to move any count with respect to orders of

detention which have already been made or which may
hereafter be made under Section 3(1) (c) of the
Maintenance of Internal Security Act, 1971 as amended
by Ordinance 11 of 1974, for the enforcement of the
rights conferred by Article 14, Article 21 and Clauses (4),
(5), (6) and (7) of Article 22 of the Constitution, and
 (b) all proceedings pending in any court for the
enforcement of any of the aforesaid rights with respect
of orders of detention made under the said Section
3(D(c)'

shall remain suspended for a period of six months from the date
of issue of this Order or the period during which the Proclamation
of emergency issued under Clause (1) of Article 352 of the
Constitution on the 3rd December, 1971, is in force, whichever
period expires earlier.'

2. This Order shall extend to the whole of the territory of India.

On June 20, 1975 the President of India amended the above order by
substituting twelve months" for "six months" in the order. On June 25,
1975 the President of India issued another proclamation of emergency
and the same reads as under:

PROCLAMATION OF EMERGENCY

In exercise of the powers conferred by Clause (1) of Article 352

of the Constitution, I Fakhruddin Ali Ahmed, President of India,
by this Proclamation declare that a grave emergency exists
whereby the security of India is threatened by internal
disturbance.

Sd/- F. A. Ahmed
President
New Delhi
the 25th June, 1975

On June 27, 1975 the President of India made the following order:

In exercise of the powers conferred by Clause (1) of Article 359

of the Constitution, the President hereby declares that the right
of any person (including a foreigner) to move any court for the
enforcement of the rights conferred by Article 14, Article 21 and
Article 22 of the Constitution and all proceedings pending in any
court for the enforce-men of the above mentioned rights shall
remain suspended for the period during which the Proclamation
of emergency made under Clause (1) of Article 352 of the
Constitution on the 3rd December, 1971 and on the 25th June,
1975 are both in force.

This Order shall extend to the whole of the territory of India

except the State of Jammu and Kashmir.
 This Order shall be in addition to and not in derogation of any
Order made before the date of this order under Clause (1) of
Article 359 of the Constitution.

On June 29, 1975 another order was issued by the President whereby the
words "except the State of Jammu & Kashmir" in the order dated June 27,
1975 were omitted. On September 25, 1975 another Presidential order
was issued as a result of which the last paragraph in the Presidential
order dated June 27, 1975 was omitted.

135. By Act 39 of 1975 Section 16A was introduced in MISA with effect
from June 29, 1975 and the same reads as under:

16A. (1) Notwithstanding anything contained in this Act or any

rules of natural justice, the provisions of this section shall have
effect during the period of operation of the Proclamation of
emergency issued under Clause (1) of Article 352 of the
Constitution on the 3rd day of December, 1971 or the
Proclamation of emergency issued under that clause on the 25th
day of June, 1975, or a period of twelve months from the 25th
day of June, 1975, whichever period is the shortest.

(2) The case of every person (including a foreigner) against

whom an order of detention was made under this Act on or after
the 25th day of June, 1975, but before the commencement of
this section, shall, unless such person is sooner released from
detention, be reviewed within fifteen days from such
commencement by the appropriate Government for the purpose
of determining whether the detention of such person under this
Act is necessary for dealing effectively with the emergency in
respect of which the Proclamations referred to in Sub-section (1)
have been issued ,hereinafter in this section referred to as the
emergency) and if, on such review, the appropriate Government
is satisfied that it is necessary to detain such person for
effectively dealing with the emergency, that Government may
make a declaration to that- effect and communicate a copy of the
declaration to the person concerned.

(3) When making an order of detention under this Act against

any person (including a foreigner) after the commencement of
this section, the Central Government or the State Government or,
as the case may be, the officer making the order of detention
shall consider whether the detention of such person under this
Act is necessary for dealing effectively with the emergency and if,
on such consideration, the Central Government or the State
Government or, as the case may be, the officer is satisfied that it
is necessary to detain such person for effectively dealing with the
emergency, that Government or officer may make a declaration
to that effect and communicate a copy of the declaration to the
person concerned:

Provided that where such declaration is made by an

officer, it shall be reviewed by the State Government to
which such officer is subordinate within fifteen days from
the date of making of the declaration and such
declaration shall cease to have effect unless it is
confirmed by the State Government, after such review,
within the said period of fifteen days.

(4) The question whether detention of any person in respect of

whom a declaration has been made under Sub-section (2) or
Sub-section (3) continues to be necessary for effectively dealing
with the emergency shall be reconsidered by the appropriate
Government within four months from the date of such declaration
and thereafter at intervals not exceeding four months and if, on
such re-consideration, it appears to the appropriate Government
that the detention of the person is no longer necessary for
effectively dealing with the emergency, that Government may
revoke the declaration.

(5) In making any review, consideration or reconsideration under

Sub-sections(2), (3) or (4), the appropriate Government or
officer may, if such Government or officer considers it to be
against public interest to do otherwise act on the basis of the
information and materials in its or ins possession without
disclosing the facts or giving an opportunity of making a
representation to the person concerned.

(6) In the case of every person detained under a detention order

to which the provisions of Sub-section (2) apply, being a person
the review of whose case is pending under that Sub-section or in
respect of whom a declaration has been made under that Sub-
section,--

(i) Section 8 to 12 shall not apply; and

(ii) Section 13 shah" apply subject to the modification

that the words and figures 'which has been confirmed
under Section 12' shall be omitted.
 (7) In the case of every person detained under a detention order
to which the provisions of Sub-section (3) apply' being a person
in respect of whom a declaration has been made under that Sub-
section,--

(i) Section 3 shall apply subject to the modification that

for Sub-sections (3) and (4) thereof,, the following Sub-
section shall be substituted, namely:--

(3) when order of detention is made by a State

Government or by an officer subordinate to it,
the State Government shall, within twenty days,
forward to the Central Government a report in
respect of the order;

(ii) Section 8 to 12 shall not apply; and

(iii) Section 13 shall apply subject to the modification

that the words and figures 'which has been confirmed
under Section 12' shall be omitted.

Act 39 of 1975 also inserted Section 18 with effect from June 25, 1975
and the same reads as under:

18. No person (including a foreigner) detained under this Act

shall have any right to personal liberty by virtue of natural law or
common law, if any.

136. By the Constitution (Thirty-eighth Amendment) Act, 1975 Clauses

(4) and (5) which read as under were added in Article 352 of the
Constitution:

(4) The power conferred on the President by this article shall

include the power to issue different Proclamation on different
grounds, being war or external aggression or internal disturbance
or imminent danger of war of external aggression or internal
disturbance, whether or not there is a Proclamation already
issued by the President under Clause (1) and such Proclamation
is in operation.

(5) Notwithstanding anything in this Constitution,--

(a) the satisfaction of the President mentioned in Clause

(1) and Clause (2) shall be final and conclusive and shall
not be questioned in any court on any ground;
 (b) subject to the provisions of Clause (2), neither the
Supreme Court nor any other court shall have
jurisdiction to entertain any question, on any ground,
regarding the validity of--

(i) a declaration made by Proclamation by the

President to the effect stated in Clause (1); or

(ii) the continued operation of such

Proclamation.

Following Clause (1A) was also added after Clause (1) of Article 359 and
the same reads as under:

(1A) While an order made under Clause (1) mentioning any of

the rights conferred by Part III is in operation, nothing in that
Part conferring those rights shall restrict the power of the State
as defined in the said Part to make any law or to take any
executive action which the State would but for the provisions
contained in that Part be competent to make or to take, but any
law so made shall, to the extent of the incompetence, cease to
have effect as soon as the order aforesaid ceases to operate,
except as respects things done or omitted to be done before the
law so ceases to have effect.

The Constitution (Thirty-ninth Amendment) Act, 1975 was published on

August 10, 1975 and inserted the Maintenance of Internal Security Act,
1971 as item 92 in the Ninth Schedule to the Constitution.

137. On October 17, 1975 Ordinance 16 of 1975 was issued making

further amendment in Section 16A of MISA and the same read as under:

(a) for Sub-section (5), the following Sub-section shall be

substituted, namely:--

(5) In making any review, consideration or re-

consideration under Sub-section (2), Sub-section (3) or
Sub-section (4), the appropriate Government or officer
may act on the basis of the information and materials in
its or ins possession without communicating or disclosing
any such information or materials to the person
concerned or affording him any opportunity of making
any representation against the making under Sub-
section (2), or the making or confirming under Sub-
section (3), or the non-revocation under Sub-section (4),
of the declaration in respect of him;
(b) in Sub-section (7), in Clause (i),--

(i) in the opening portion, for the words 'the following

Sub-section', the words 'the following' shall be
substituted;

(ii) in Sub-section (3), as substituted by that clause, for

the words 'forward to the Central Government a report in
respect of the order', the words 'report the fact to the
Central Government' shall be substituted;

(iii) after Sub-section (3) aforesaid, the following shall be

inserted, namely:

(4) At any time after the receipt of a report

under Sub-section (3), the Central Government
may require the State Government to furnish to
the Central Government the grounds on which
the order has been made and such other
particulars as, in the opinion of the State
Government, have a bearing on the necessity for
the order.;

(c) after Sub-section (7), the following Sub-sections shall be

inserted, namely:

(8) in the case of any person in respect of whom a

declaration has been made by a State Government under
Sub-section (2) or a declaration has been made by a
State Government or an officer subordinate to it or
confirmed by the State Government under Sub-section
(3), or a declaration has not been revoked by a State
Government under Sub-section (4), the Central
Government may, whenever it considers it necessary so
to do, require the State Government to furnish to the
Central Government the information and materials on
the basis of which such declaration has been made or
confirmed, or not revoked, as the case may be, and such
other information and materials as the Central
Government may deem necessary.

(9) Notwithstanding anything contained in any other law

or any rule having the force of law,--

(a) the grounds on which an order of detention

is made under Sub-section (1) of Section 3
 against any person in respect of whom a
declaration is made under Sub-section (2) or
Sub-section (3) and any information or
materials on which such grounds or a
declaration under Sub-section (2) or a
declaration or confirmation under Sub-section
(3) or the non-revocation under Sub-section (4)
of a declaration are based, shall be treated as
confidential and shall be deemed to refer to
matters of State and to be against the public
interest to disclose and save as otherwise
provided in this Act, no one shall communicate
or disclose any such ground, information or
material or any document containing such
ground, information or material;

(b) no person against whom an order of

detention is made under Sub-section (1) of
Section 3 shall be entitled to the communication
or disclosure of any such ground, information or
material as is referred to in Clause (a) or the
production to him of any document containing
such ground, information or material.

138. On November 16, 1975 Ordinance 22 of 1975 was issued making

certain amendments in MISA. By Section 2 of the Ordinance the words
"twelve days" and "twenty days" in Sub-section (3) of Section 3 of MISA
were substituted by the words "twenty days" and "twenty-five days"
respectively. In Section 14 of the principal Act following Sub-section was
substituted for the original Sub-section:

(2) The expiry or revocation of a detention order (hereafter in

this Sub-section referred to as the earlier detention order) shall
not bar the making of another detention order (hereafter in this
Sub-section referred to as the subsequent detention order) under
Section 3 against the same person:

Provided that in a case where no fresh facts have arisen

after the expiry or revocation of the earlier detention
order made against such person, the maximum period
for which such person, may be detained in pursuance of
the subsequent detention order shall, in no case, extend
beyond a period of twelve months from the date of
detention under the earlier detention order or until the
 expiry of the Defence and Internal Security of India Act,
1971, whichever is later.

Following Sub-section (2A) was also inserted in Section 16A of the

principal Act:

(2A) If the State Government makes a declaration under Sub-

section (2) that the detention of any person in respect of whom a
detention order is made by an officer subordinate to that
Government is necessary for dealing effectively with the
emergency, the State Government shall be deemed to have
approved such detention order and the provisions of Sub-section
(3) of Section 3, in so far as they relate to the approval of the
State Government, and of Sub-section (4) of that section, shall
not apply to such detention order.

The amendments made by the Ordinance were given retrospective effect

for the purpose of validating all acts done previously.

139. During the pendency of these appeals, the Maintenance of Internal

Security (Amendment) Act, 1976 (Act 14 of 1976) was published on
January 25, 1976. This amending Act incorporated and in some respects
modified the changes which had been brought about in the principal Act
by ordinance 16 of 1975 and ordinance 22 of 1975. Section 2 and 3 of the
amending Act incorporate the changes which had been introduced by
Sections 2 and 3 of Ordinance 22 of 1975. At the same "time sections 2
and 3 of the amending Act make it clear that substitution brought about
by those sections shall be with effect from June 29, 1975. Sections 4, 5
and 6 of the amending Act read as under:

4. In Section 16A of the principal Act,--

(a) after Sub-section (2), the following Sub-section shall

be inserted, and shall be deemed to have been inserted
with effect from the 29th day of June, 1975, namely:--

(2A) If the State Government makes a

declaration under Sub-section (2) that the
detention of any person in respect of whom a
detention order is made by an officer-
subordinate to that Government is necessary for
dealing effectively with the emergency, the
State Government shall be deemed to have
approved such detention order and the provision
of Sub-section (3) of Section 3, in so far as they
 relate to, the approval of the State Government,
and of Sub-section (4]I of 'that section, shall not
apply to such detention order.;

(b) for Sub-section (5), the following Sub-section shall

be substituted, and shall be deemed to have been
substituted with effect' from the 29th day of June, 1975,
namely:--

(5) In making any review, consideration or

reconsideration under Sub-section (2), Sub-
section (3) or Sub-section (4), the appropriate
Government or officer may act on the basis of
the information and materials in its .or ins
possession without communicating or disclosing
any such information or materials to the person
concerned or affording, him any, opportunity of
making any representation against the making
under Sub-section (2), or the making or
confirming under Sub-section (3), or the non-
revocation under Sub-section (4), of the
declaration in respect of him;

(c) in subjection (7), in Clause (i),--

(i) in the opening portion, for the words the

following Sub-section', the words 'the following'
shall be substituted; and shall be deemed to
have been substituted with effect from the 29th
day of June, 1975;

(ii) in Sub-section (3), as substituted by that

clause, for the words 'forward to the Central
Government a report in respect of the order', die
words 'report the fact to the Central
Government' shall be substituted, and shall be
deemed to have been substituted with effect
from the 29th day of June, 1975;

(iii) after Sub-section (3) aforesaid, the

following shall be inserted, and shall be deemed
to have been inserted with effect from the 17th
day of October, 1975 namely:--
 (4) At any time after the receipt of a report
under Sub-section (3), the Central Government
may require the State Government to furnish to
the Central Government the grounds on which
the order has been made and such other
particulars as, in the opinion of the State
Government, have a bearing on the necessity for
the order.

(d) after Sub-section (7),' the following Sub-sections

shall: be; inserted, and shall be, deemed to have been
inserted with effect from the 29th day of June, 1975;
namely--

(8) In the case of any person in respect of

whom a declaration has been made by a State
Government under Sub-section (2) or a
declaration has been made by a State
Government or an officer subordinate to it or
confirmed by the State Government under Sub-
section (3) , or a declaration has not been
revealed by a state Government under Sub-
section (4), the Central Government may,
whenever it considers it accessory so to do,
require the State Government to furnish to the
Central Government the information and
materials on the basis of which such declaration
has been made or confirmed, or not revoked as
the case may be, and such other information
and materials as the Central Government may
deem necessary.

(9) Notwithstanding anything contained in any

other law or any rule having the force of law,--

(a) the grounds on which an order of detention

is made or purported to be made under Section
3 against any person in respect of whom a
declaration is made under Sub-section (2) or
Sub-section (3) and any information or
materials on which such grounds or a
declaration under Sub-section (3) or the non-
revocation under Sub-section (4) of a
declaration are based, shall be treated as
confidential and shall be deemed to refer to
 matters of State and to be against the public
interest to disclose and save as otherwise
provided in this Act, no one shall communicate
or disclose any such ground, information or
material or any document containing such
ground, information or material;

(b) no person against whom an order of

detention is made or purported to be made
under Section 3 shall be entitled to the
communication or disclosure of any such
ground, information or material as is referred to
in Clause (a) or the production to him of any
document containing such ground, information
or material.

5. In Section 18 of the principal Act, for the words 'detained

under this Act', the words and figure 'in respect of whom an
order is made or purported to be made under Section 3 shall be
substituted, and shall be deemed to have been substituted with
effect from the 25th day of June, 1975.

6. Any act or thing done or purporting to have been done; before

the 16th day of November, 1975, under the principal Act in
respect of any person against whom an order of detention was
made under that Act on or after the 25th day of June, 1975 or m
respect of any such order of detention shall, for all purposes, be
deemed to be as valid and effective as if the amendments made
to the principal Act by Sections 2 and 3, and Clause (a) of
Section 4, of this Act had been in force at all material times.

140. During the pendency of these petitions under Article 226 of the
Constitution of India before the High Courts for issue of writs of habeas
corpus, it was contended on behalf of the Union of India and the States
that view of the Presidential order dated June 27, 1975 under Article 359
suspending the right of all persons to move any court for the enforcement
of the enforcement of the rights conferred by articles 14, 21 and 22 of the
Constitution, petitions for issue of writs of habeas corpus were not
maintainable. Particular stress Was laid upon the fact that the right to
move the court for enforcement of the right under Article 21 had been
suspended and such no petition for a writ of habeas corpus could be
preceded with. The above mentioned presidential order was stated to be
an absolute bar to the judicial security of the detention orders. This
contention did not find favour with the High Court and they held that
despite the said Presidential order the petitions were maintainable and
could be proceeded with. Although opinions were not unanimous on the
point as to whether the High Court should without examining on the point
as to whether the case go into the question of the area of the judicial
scrutiny and if so, what was the area of the judicial , all the nine High
Courts which dealt with the matter came to the conclusion that the
Presidential order did not create an absolute bar to the judicial scrutiny of
the validity of the detention. The nine High Court are:

(1) Delhi

(2) Karnataka

(3) Bombay .(Nagpur Bench)

(4) Allahabad

(5) Madras

(6) Rajasthan

(7) Madhya Pradesh

(8) Andhra Pradesh

(9) Punjab and Haryana.

141. In these appeals before us, learned Attorney-General on behalf of

the appellants has drawn our attention, to the difference in phraseology of
the Presidential order; dated June ,21, 1975 and the earlier Presidential
orders dated November 3, 1962 and November 16, 1974 and has urged
that in view of the absolute nature of the Presidential order of June 27,
1975, petition for a writ of habeas corpus is not maintainable.

142. There can be no doubt that the Presidential order dated June 27,
1975 has been worded differently compared to the earlier Presidential
orders which were issued under Clause (1) of Article 359 and that there
has been a departure from the pattern which used to be adopted while
issuing such orders. The Presidential order dated November 16, 1974 has
already been reproduced earlier. Presidential order dated November 3,
1962 issued under Clause (1) of Article 359 of the Constitution redd as
under:

ORDER

New Delhi the 3rd November, 1962

 G.S.R 1464--In exercise of the power 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 right 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 in 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.

On November 6, 1962, the rules framed under the Ordinance by the

Central Government were published. On November 11, 1962 the
Presidential order reproduced above was amended and for the words and
figure "Article 21", the words and figures "Articles 14 and 21" were
substituted. The Defence of India Ordinance was subsequently replaced
by the Defence of India Act and the rules framed under the Ordinance
were deemed to have been framed under the Act. Perusal of the above
Presidential order of 1962 shows that what was suspended was the right
of any person to move any court for-the enforcement of rights conferred
by Articles 14, 21 and 22. The suspension was, however, conditioned by
the circumstance that such person had been deprived of such rights under
the Defence of India Act or any rule or order made thereunder. It was
plain that in case a detention order was made or any other action was
taken not under the provisions of the Defence of India Act or any rule or
order made thereunder, the same could not enjoy the protection of the
Presidential order under Article 359. Another effect of the Presidential
order was that as long as the proclamation of emergency was in force,
the validity of the provisions of the Defence of India Act or the rules or
orders made thereunder could not be assailed on the ground of being
violative of Articles 14, 21 and 22. It is also clear that in view of Article
358, while a proclamation of emergency was in operation, nothing in
Article 19 could have restricted the power of the State to make any law or
to take any executive action which the State could but for the provisions
contained in Part III was competent to make or to take.

143. Likewise, under the Presidential order dated November 16, 1974
which has been already reproduced earlier, what was suspended was the
right to move any court with respect to an order of detention which might
have been made or which might be made thereafter under Section 3(1)
(c) of the Maintenance of Internal Security Act as amended for the
enforcement of rights conferred by Articles 14, 21 and Clause (4) to (7) of
Article 22 of the Constitution. Proceedings pending in any court for the
enforcement of any of the aforesaid rights with respect to orders of
detention made under Section 3(1)(c) too were suspended. It was plain
from the language of the Presidential order that there could be no
suspension of the right mentioned in the Presidential order if the
detention order could not be shown to have been made under Section
3(1)(c) of MISA because an order not under Section 3(1)(c) was outside
the Presidential order.

144. The Presidential order of 1962 under Article (1) of the Constitution
came to be considered by this Court in the case of Makhan Singh v. State,
of Punjab MANU/SC/0039/1963 : 1964CriLJ217 Gajenndragadkar, J. (as
he then was) speaking for out of the Bench of seven Judges of this Court
observed while dealing with the effect of the Presidential order on a
petition of habeas corpus:

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 ins detention order, the detenu is
pleading any right outside the rights specified in the order, ins
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 ins
detention is illegal for the reason that the mandatory provision of
the Act have been contravened. Such a plea is outside Article
359(1) and tile right of the detenu to move for ins 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 ins detention has been ordered
malafide. It is hardly necessary to emphasise that the exercise of
a power malafide is wholly outside the scope of the Act conferring
the power and can always be successfully challenged. It is true
that a mere allegation that the detention is malafide would not be
enough; the detenu will have to prove the malafides; But if the
malafides are alleged, the detenu cannot be precluded from
substantiating ins 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).

It was further observed:

It is only in regard to that class of cases falling under Section

491(1) (b) where the legality of the detention 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 inapplicable and proceedings
taken on behalf of the detenu with have to be tried in accordance
"with law. We ought to add that these categories of pleas have
been mentioned by us by way of illustrations, and so, they should
not be read as exhausting all the pleas which do not fall within
the purview of the Presidential order.

There is yet another ground on which the validity of the detention

may be open to challenge. If a detenu contends that the
operative provision of the law under which he is detained suffers
from the vice of excessive delegation and is, therefore, invalid,
the plea thus raised by the detenu cannot at the threshold be
said to be barred by the Presidential order. In terms, it is not a,
plea which is relatable to the fundamental right specified in the
said order. It is a plea which is independent of the said rights and
its validity must be examined.

In the case of State of Maharashtra v. Prabhakar Pandurang Sangzgiri and

Anr. MANU/SC/0089/1965 : 1966CriLJ311 Subba Rao J, (as he then was)
speaking for the Constitution bench of this Court observed:

Article 358 of the Constitution suspends the provisions of Article

19, of Part III of the Constitution during the period the
proclamation of emergency is in operation; and the order passed
by the President under Article 359 suspended the enforcement,
inter alia, of Article 21 during the period of the said emergency.
But the President's order was a conditional one. In effect it said
that the right to move the High Court or the Supreme Court
remained suspended if such a person had been deprived of ins
personal liberty under the Defiance of India Act, 1962, or any
rule or order made hereunder. If a person was deprived of his
personal liberty not under the Act or a rule or order made
thereunder but in contravention thereof, his right to move the
said Courts in that regard would not be suspended. The question,
therefore, in this case is whether the first respondent's liberty,
has been restricted in terms of the Defence of India Riles
whereunder he was detained. If it was in contravention of the
said Rules he would have the right to approach the High Court
under Article 226 of the Constitution.

Similar view was expressed in the case of Dr. Ram Manohar Lohia v. State
of Bihar and Ors. MANU/SC/0054/1965 : 1966CriLJ608 Sarkar J. (as be
then was) in that case observed that where a person was detained in
violation of the mandatory provisions of the Defence of India Act, his right
to move the court was not suspended. Hidayatuilah and Bachawat JJ.
referred to the fact that the Presidential order did not say that even if a
person; was proceeded against in breach of the Defence of India" Act or
the rules, he could not move the court or complain that the Act and the
Rules under colour of which some action was taken did not warrant it. The
Presidential order was held to have not intended to condone an
illegitimate enforcement of the Defence of India Act, Raghubar Dayal J.
held that the Court could go into the question as to whether the District
Magistrate exercised the power of detention under the Defence of India
Rules bonaflde and in accordance with the rules. MudhoBkar J. observed
that if a detenu contends that the order, though it purports to be under
Rule 30(1) of the Defence of India Rules, was not competently made, this
Court had a duty to enquire into the matter. Sarkar, Hidayatuilah,
Mudholkar and Bachawat JJ, on consideration of the material before them
found that as the detention order had been made with a view to present
the detenu from acting in a manner prejudicial to the maintenance of law
and older and not public order, as contemplated by Rule 30, the
detention, order was not in conformity with law. The petitioner in that
case was accordingly directed to be set at liberty.

145. The observations in the cases referred to-above show that the
validity of the detention orders could be assailed despite the Presidential
orders of 1962 and 1974 under Article 359 in case the right relied upon
was not one covered by these Presidential orders. The protection
.afforded by those Presidential of derswa net absolute, it was conditional
and confined to ruling out the challenge to detention orders and other
actions taken under the provisions mentioned in those Presidential orders
on the score of contravention of the Articles specified in those orders. If
the detention of a detenu was not in accordance with the previsions
mentioned in the Presidential -orders, the Presidential orders did not have
the, effect of affording protection to the detention order and it was
permissible to challenge the validity of the detention on the ground that it
had not been made under the specified provisions but in, contravention,
of those provisions.

146. We may now deal with the Presidential order dated June 27, 1975
with which we are concerned. Unlike the Presidential orders under Clause
(1) of Article 359 issued earlier, this Presidential order makes no
reference to any detention order made under any specified provision. It
seeks to impose a blanket suspension of the right of any person, including
a foreigner, to move any court for the enforcement of the rights conferred
by Articles 14, 21 and 22 of the Constitution and of all proceedings
pending to, any court for the, enforcement of the above mentioned rights
for tile period during which the proclamation of emergency is in force. The
observations which were made by this Court in the cases referred to
above in the context of the phraseology of the earlier Presidential orders
of 1962 and 1974, namely, the detention orders made under specified
provisions, cannot now be relied upon while construing the ambit of the
Presidential order o£ June 27, 1975.

147. The difference in phraseology 08 the Presidential order dated June

27, 1975 and that of the earlier Presidential orders would not, however,
justify the conclusion that because of the new Presidential order dated
June 27, 1975 a detention order need not comply with the requirements
of the law providing for preventive detention. Such a detention order
would still be liable to be challenged in a court on the ground that it does
not comply with the requirement of law for preventive detention if ground
for such challenge be permissible in spite of and consistently with the new
Presidential order. The effect of the change in phraseology would only be
that such of the observations which were made in the cases mentioned
above in the context of the language of the earlier Presidential orders
cannot now be relied upon. Reliance, however, can still be placed upon
the observations made in those cases which were not linked with the
phraseology of the earlier Presidential orders.

148. Question then arises as to what is the effect of the suspension of the
right of a person to move any court for the enforcement of rights
conferred by Articles 14, 21 and 22 of the Constitution, One obvious
result of the above is that no one can rely upon Articles 14, 21 and 22
with a view to seek relief from any court. According to the stand taken by
the learned Attorney General, the effect of the suspension of the right of
a person to move any court for the enforcement of the right conferred by
Article 21 is that even if the order for detention has been made- without
the authority of law, no redress can be sought from the court against
such detention order. Article 21 of the Constitution reads as under:

No person shall be deprived of ins life or personal liberty except

according to procedure established by law.

It is urged that Article 21 is the sole repository of one's right to life or

personal liberty. The moment the right to move any court for enforcement
of Article 21 is suspended, no one can, according to the submission,
complain to the court of deprivation of life or personal liberty for any
redress sought from the court on that score would be enforcement of
Article 21. Petition under Article 226 for the issue of a writ of habeas
corpus, it is contended by learned Attorney General, is essentially a
petition to enforce the right of personal liberty and as the right to move
any court for the enforcement of the right conferred by Article 21 is
suspended, no relief can be granted to the petitioner in such petition.
149. In order to assess the force of the above argument, it may be
necessary to give the background and the in story of Article 21. In the
original draft of the Indian Constitution, in the Article which now stands as
Article 21 the words used were "in accordance with due process of law"
instead of the words "according to procedure established by law." The
concept of expression "due process of law" or its equivalent "law of the
land" traces its lineage for back into the beginning of the 13th century
A.D. The famous 39th chapter of the Magna Carta provides that "no free
man shall be taken or imprisoned or disseized, or outlawed or exiled or in
any way destroyed; nor shall we go upon him nor send upon him but by
the lawful judgment of ins peers and by the law of the land." Magna Carta
as a charter of English liberty was confirmed by successive English
monarchs. It was in one of these confirmations (28 Ed, III, Chap. 3)
known as "Statute of Westminster of the liberties of London" that the
expression "due process of law" appears to have been used for the first
time. Neither of the expressions "due process of law" or "law of the land"
was explained or defined in any of the documents, but on the authority of
Sir Edward Coke it may be said that both the expressions have the same
meaning. In substance, they guaranteed that persons should not be
imprisoned without proper indictment and trial by peers, and that
property should not be seized except in proceedings conducted in due
form in which the owner or the person in possession should have an
opportunity to show cause why seizure should not be made. The
expression "due process of law" came to be a part of the US Constitution
by the Fifth Amendment which was adopted in 1791 and which provided
that "no person shall.... be deprived of life, liberty or property without
due process of law. Similar expression was used in the Fourteenth
Amendment in 1868. It has been said that few phrases in the law are so
elusive of exact apprehension as "due process of law." The United States
Supreme Court has always declined to give a comprehensive definition of
it and has preferred that its full meaning should be gradually ascertained
by the process) of inclusion and exclusion in the course of the decisions
as they arise. The expression "due process of law," as used in the US
Constitution, has been taken to impose a limitation upon the powers of
the Government, legislative as well as executive and judicial. Applied in
England as protection against executive usurpation and royal tyranny, in
America it became a bulwark against arbitrary legislation. "Due process of
law," according to Cooley, "means in each particular case such an exercise
of the powers: of Government as the settled maxims of law permit and
sanction, and under such safeguards for the protection of individual rights
as those maxims prescribe for the class of cases to which the one in
question belongs" (Constitutional Limitations, Vol. II, p. 741).

150. Till about the middle of the 19th Century, due process clause was
interpreted as a restriction upon procedure, and particularly the judicial
procedure, by which the Government, exercises its power. Principally It
related to the procedure by which persons were tried for crimes and
guaranteed to accused persons the right to have a fair trial in Compliance
with well established criminal proceedings. The same principle applied to
the machinery or ;, proceedings by which property rights were
adjudicated and by which the powers of eminent domain and taxation
were exercised. ; During this period it was not considered to have any
bearing on substantive law at all. Subsequently view came to be accepted
that the concept of due process of law protected rights of life, liberty and
property. This change in judicial thinking was influenced in a great
measure by the industrial development leading to accumulation of large
capital in the hands of industrialists and the emergence of a definite
labouring class. What constituted legitimate exercise of the powers of
legislation now came to be a judicial question and no statute was valid
unless it was reasonable in the opinion of the Court The US Supreme
Court laid stress upon the word "due" which occurs before and qualifies
the expression "process of law." "Owe" means "what is just and proper"
according to the circumstances of a particular case. The word introduces a
variable element in the application of the doctrine, for what is reasonable
in one set of circumstances may not be so in another set of
circumstances. The requirement of due process clause as a substantial
restriction on Government control is also now becoming a thing of the
past and the rule is being restricted more and more to its original
procedural aspect (see observations of Mukherjea J. in the case of A. K.
Gopdlan, (supra).

151. At the tune the Constitution was being drafted, the Constitutional
Adviser Mr. B. N. Rau had discussions with US Constitutional experts some
of whom expressed the opinion that power of review implied in due
process clause was not only undemocratic because it gave the power of
vetoing legislation to the judges, but also threw an unfair burden on the
judiciary. This view was communicated by Mr. Rau to the Drafting
Committee which thereupon substituted the words "except according to
procedure established by law" for the words "due process, of law" In
dropping the, words "due process Of' law" the framers of on Constitution
prevented the introduction of elements of Vagueness, uncertainty and
changeability which had grown round the due process doctrine to the
United States. The words "except according to procedure established by
law" were taken from Article 31 of the Japanese Constitution, according to
which "no person shall be deprived of life or liberty nor shall any criminal
liability be imposed, except according to procedure established by law.
The article is also somewhat similar to Article 4Q(4)(i) of Irish
Constitution, according to which no person shall be deprived of ins
personal liberty save in accordance with law." ft was laid down in
Gopalan's case by the majority that the word "law" has been used in
Article 21 in the sense of State-made law and not as an equivalent of law
in the abstract or general sense embodying the principles of natural
justice. "The procedure established by law" was held to mean the
procedure established by law made by the State, that is to say, the Union
Parliament or the legislatures of the1 States, Law, i£ was also observed
by Mukherjea J., meant a valid and binding law under the provisions of
the Constitution and not one infringing fundamental rights.

152. The effect of the suspension of the right to move any court for the
enforcement of the right conferred by Article 21, k my opinion, is that
when a petition is filed in a court, the court would have to proceed upon
the basis that no reliance can be placed upon that Article for obtaining
relief from the court daring the period of emergency. Question then arises
as to whether the rule that no one shall be deprived of ins life or personal
liberty without the authority of law stiff survives during the period: of
emergency despite the Presidential order suspending the right to move
any court for the enforcement of the-right contained in Article 21. The
answer to this question is linked with the answer to the question as to
whether Article 21 is, the sole repository of the right to life and personal
liberty. After giving the matter my earnest consideration,

I am of the opinion that Article 21 cannot be considered" to be the sole

repository of the right to life and; personal liberty. The right to life, and
personal: liberty is the most precious right of human beings in civilised
societies governed by the rule of law. Many modern constitutions
incorporate certain fundamental rights, including the one relating to
personal freedom. According to Blackstone, the absolute rights of
Englishmen were the rights of personal security, personal liberty and
private property. The American Declaration of Independence (1776)
states that all men are created equal, and among their inalienable right
are life, liberty, and the pursuit of happiness.
The Second Amendment to the US Constitution refers inter alia to security
of person, while the Fifth Amendment prohibits inter alia deprivation of
life and Bberty without due process of law. The different Declarations of
Human Rights and fundamental freedoms have all laid stress upon the
sanctity of life and liberty. they have also given expression in varying
words to the principle that no one shall be derived of his: life or liberty
without the authority of law The International Commission of Jurists,
which is affiliated of UNESCO, has been attempting with, considerable
success to give material content to ''the Rule-of Law," an expression used
in the Universal Declaration: of Human Rights. One of its most notable
achievement was the Declaration of Delhi, 1959. This resulted from a
Congress held m New Delhi attended by jurists from more than 50
countries and was based on a questionnaire circulated to 75,000: lawyers.
"Respect for the supreme value of human personality" was stated to be
the basis of all law (see page 21 of the Constitutional; and Administrative
Law by O. Hood Phillips, 3rd Ed.).

153. Freedom under law, it may be added, is not absolute freedom. It has
its own limitations in its own interest, and can properly be described as
regulated freedom. In the words of Ernest Barker, (i) the truth that every
man, ought to be free has for its other side the complementary and
consequential truth that no man can be absolutely free; that (ii) the need
of liberty for each is necessarily qualified and conditioned by the need of
liberty for all that (iii) liberty in the State or legal liberty, as never the
absolute liberty of all that (iv) liberty within the State is thus a relative
and regulated liberty; and that (v) a relative and regulated liberty;
actually, operative and enjoyed, is a liberty greater in amount than
absolute liberty could ever be self indeed such liberty could ever exist, or
even amount to anything more than nothing at all.

154. Rule of law is the antithesis of arbitrariness. Plato believed that if

philosophers were kings or kings philosophers government by will would
be intrinsically superior to government by law, and he so proclaimed in
ins Republic. Experience eventually, taught him that this ideal was not
obtainable and that if ordinary men were allowed to rule by will alone the
interests of the community would be scarified to these of the ruler.
Accordingly^ in the Laws he modified ins position and urged the
acceptance of the "second best", namely government under law. Since
the question of the relative merits of rule by law as against rule by will
has been often debated. In the aggregate the decision has been in .favour
of rule by law. On occasions, however, we have slipped back into
government by will only to return again, sadder and wiser men, to Plato's
"second best" when the hard facts of human nature demonstrated the
essential egotism of men and the truth of the dictum that all power
corrupts and absolute power corrupts absolutely. Bracton's dicta that if
the king has no bridle one ought to be put upon in, and that although the
king is under no man he is 'under God and the law Fortescue's insistence
that the realm of England is a reginem politicium et regale and hence
limited by law; Coke's observation that "Magna Carta is such a fellow that
he will have no sovereign"; these are but a few of the beacons lighting
the way to the triumph of the rule of law (see pages 3-6 of the Rule of
Law by H. Malcolm Macdonald and Ors.).

Rule of law is now the accepted norm of all civilised societies.

Even if there have been deviations from the rule of law, such deviations
have been covert and disguised for no government in a civilized country is
prepared to accept the ignominy of governing without the rule of law. As
observed on page 77 of Constitutional Law by Wade and Phillips, 8th Ed.,
the rule of law has come to be regarded as the mark of a free society.
Admittedly its content is different in different countries, nor is it to. be
secured exclusively through the ordinary courts.
But everywhere it is identified with the liberty of the individual. It seeks to
maintain a balance between the opposing notions of individual liberty and
public order. In every State the problem arises of reconciling human
rights with the requirements of public interest. Such harmonising can only
be attained by the existence of independent courts which can hold the
balance between citizen and State and compel Governments to conform
to the law.

155. Sanctity of life and liberty was not something new when the
Constitution was drafted. It represented a fact of higher values which
mankind began to cherish in its evolution from a state of tooth and claw
to a civilized existence. Likewise, the principle that no one shall be
deprived of ins life and liberty without the authority of law was not the
gift of the Constitution. It was a necessary corollary of the concept
relating to the sanctity of life and liberty; it existed and was in force
before the coming into force, of the Constitution. The idea about the
sanctity of life and liberty as well as the principle that no one shall be
deprived of his life and liberty without the authority of law are essentially
two facets of the same concept. This concept grew and acquired
dimensions in response to the inner urges and nobler impulses with the
march of civilisation. Great writers and teachers, philosophers and
political thinkers nourished and helped in the efflorescence of the concept
by rousing the conscience of mankind and by making it conscious of the
necessity of the concept as necessary social discipline in self-interest and
for orderly existence. According even to the theory of social compact
many aspects of which have now been discredited, individuals have
surrendered a part of their theoretically unlimited freedom in return or
the blessings of the government. Those blessings include governance in
accordance with certain norms in the matter of life and liberty of the
citizens. Such norms take the shape of the rule of law. Respect for law,
we must bear in mind, has a mutual relationship with respect for
government. Erosion of the respect for law, it has accordingly been said,
affects the respect for the government. Government under the law
means, as observed by Macdonald, that the power to govern shall be
exercised only, under conditions laid down in constitutions and laws
approved by either the people or their representatives. Law thus emerges
as a norm limiting the application of power by the government over the
citizen or by citizens over their fellows. Theoretically all men are equal
before the law and are equally bound by it regardless of their status,
class, office or authority. At the same time that the law enforces duties it
also protects rights, even against the sovereign. Government under law
thus seeks the establishment of an ordered community in which the
individual, aware of ins rights and duties, comprehends the area of
activity within which, as a responsible and intelligent person, he may
freely order ins life, Secure from interference from either the government
or other individuals (see Rule of Law, page 6). To quote further from
Professor Macdonald:

It is clear enough that high echelon administrators are

understandably impatient with the restraints imposed upon them
by the traditional concept of the rule of law as developed by
Dicey. Administrators deal with the implementation of highly
technical and complex matters involving the immediate interests
of many citizens. To accomplish this they are granted wide
discretion in the use of administrative power to effectuate broad
policies laid down by the legislatOrs. It is natural, that they
should desire to have the conflicts which arise as the result Of
the exercise of their discretion adjudicated by tribunals composed
of experts acquainted with the details of the matters at issue,
rather than by judges trained only in the law. Hence their
resistance to judicial review of administrative 'findings of fact' as
opposed to 'findings of law'. The very things which a court of law
prizes--rules of evidence, common law procedures, even due
process--frequently appear to the administrators as obscurantist
devices employed by those who oppose the very principle of the
policy he is attempting to effectuate. Often, secretly if not openly,
the administrator considers ins policy to be the incarnation of the
best interests of the people, or at least of their best interests if
they really understood them, and hence considers himself as
arrayed on the side of progress and light against the dark forces
of reaction.

Thus our 'wonderland of bureaucracy', as Beck has called it, has

sought autonomy from the traditional rule of courts and law. If it
should succeed we should then indeed be confronted with a vital
segment of govern mental power which would have escaped from
legal control and become arbitrary in its acts. To prevent this we
have subjected the acts of administrators to challenge in the
courts on the basis of ultra vires, and provided for judicial review
of administrative tribunals' rending of law.

156. To use the words of Justice Brandeis Olmstead v. United States, 277
U. S. 438(1928) with some modification, experience should, teach us to
be most on our guard to protect liberty when the Government's purposes
are beneficent. Men born to freedom are naturally alert to repel invasion-
of their liberty by evil-minded persons. Greatest danger to liberty lies in
insidious encroachment by men of zeal, well-meaning but lacking in due
deference for the rule of few.
157. Even in the absence of Article 21 in the. Constitution, the State has
got no power to deprive a person of ins life or liberty without the
authority of law. This is the essential postulate and basic assumption of
the rule of law and not of men in all civilised nations. Without such
sanctity of life and liberty, the distinction between a lawless society and
one governed by laws would cease to have any meaning. The principle
that no one shall be deprived of his life or liberty without the authority of
law is rooted in, the consideration that life, and liberty are priceless
possessions which cannot be made the plaything of individual whim and
caprice and that any act which has the effect of tampering with life and
liberty must receive sustenance from and sanction of the laws of the land.
Article 21 incorporates an essential aspect of that principle and makes it
part of the fundamental rights guaranteed in Part III of the Constitution.
It does not, however, follow from the above that if Article' 21 had not
been drafted and inserted in Part III, in that event it would have been
permissible for the State to deprive a person of his life or liberty without
the authority of law. No case has been cited before us to show that before
the coming into force of the Constitution or in countries under Rule of law
where there is no provision corresponding to Article 21, a claim was ever
sustained by the courts that the State can deprive a person of ins life or
liberty without the authority of law.
In fact, any suggestion to such a claim Was un-equivocally repelled. In
the case of James Sbmmersett [1772], 16 Cr. pract.289 Lord Mansfield
dealt with a case of a negro named Sommersett,: who was being taken in
a ships to Jamaica for sale in a slave market. When the ships-anchored at
London port, a habeas corpus petition was presented by some Englishmen
who were moved by the yelling and cries of Sommersett. In opposition to
the petition the slave trader took the plea that there was no law which
prohibited slavery. Lord Mansfield while repelling this objection made the
following observation in respect of slavery which is one of the worst forms
of deprivation of personal freedom:

It is so odious that nothing can be suffered to support it but

positive law: whatever inconveniences, therefore, may follow
from this decision, I cannot' say this case is allowed or approved
by the law of England; and therefore the black must be
discharged.

In other case, Fabnqas v. Mostyn 1 Cowp.,161 Lord Mansfield observed on

page 173:

To lay down in an English court of Justice that a Governor acting,

by virtue of Letters Patent, under the Great Seal, is accountable
only to God and his own conscience; that he is absolutely
despotic? and can spoil plunder, and affect His Majesty's subjects,
 both in their liberty and property, with impunity, is a doctrine that
cannot be: maintained.

The above observations were relied upon in the matter of Ammer Khan 6
Bengal Law Reports 292. I may also refer to the observations of Lord
Atkin in the case of Eshiuqbavi Eteko v. Officer Administering the
Government of Nigeria MANU/PR/0159/1931 : AIR 1931 P.C. 248:

In accordance with British jurisprudence, no member of the

executive can interfere with the liberty or property of a British
subject except on the condition that he can support the legality of
ins action before a Court of Justice. And it is the tradition of
British Justice that Judges should net shrink from deciding such
issues in the face of the executive.

The above rule laid down in Eleko's case was followed by the High Courts
in India before the coming into force of the Constitution in Prabkakar
Kesheo Tare and Ors. v. Emperor AIR 1943 Nag. 26. Vimlabai Deshpande
v. Emperor MANU/NA/0092/1944 : A.I.R. 1945 Nag. 8, Htendranath
Ghosh v. The Chief Secretary to the Government of Bengal I. L. R. 60
CaL. 364 and in re : Banwari Lal Roy and Ors. 48 C W.N. 766. The rule
laid down in Eleko's case was also followed by the Constitution Beaches of
this Court after the coming force of the Constitution in the cases of Bidi
Supply Co. v. The Union of India and Ors. MANU/SC/0040/1956 :
[1956]29ITR717(SC) and Basheshar Nath v. The Commissioner of Income
Tax, Delhi & Rajasthan and Anr. [1959] (1) Supp. S. C. R. 528 .

158. I am unable to subscribe to the view that when right to enforce the
right under Article 21 is suspended, the result would be that there would
be no remedy against deprivation of a person's life or liberty by the State
even though such deprivation is without the authority of law or even in
flagrant violation of the provisions of law. The right not to be deprived of
one's life or liberty without the authority of law was not the creation of
the Constitution. Such right existed before the Constitution came into
force. The fact that the framers of the Constitution made an aspect of
such right a part of the fundamental rights did not have the effect of
exterminating the independent identity of such right and of making Article
21 to be the sole repository of that right. Its real effect was to ensure that
a law under which a person can be deprived of ins life or personal liberty
should prescribe a procedure for such deprivation or, according to the
dictum laid down by Mukherjea, J. in Gopalan's case, such law should be
a valid law not violative of fundamental rights guaranteed by Part III of
the Constitution.
Recognition as fundamental right of one aspect of the pre-Constitutional
right cannot have the effect of making things less favourable so far as the
sanctity of life and personal liberty is concerned .compared to the position
if an aspect of such right had not been recognised as fundamental right
because, of the vulnerability of fundamental rights accruing from Article
359.
I am also unable to agree that in view of the Presidential Order in the
matter of sanctity of life and liberty, things would be worse off compared
to the state of law as it existed before the coining into force of the
Constitution.

159. The case of Dhirubha Devisingh Gohil v. The. State of Bombay

MANU/SC/0032/1954 : [1955]1SCR691 upon which reliance has been
placed by learned Attorney General cannot be of much assistance to him.
In that case this. Court held that the validity of the Borhbay Taluqdari
Tenure Abolition Act, 1949 cannot be questioned on the ground that it
takes, away or abridges the fundamental rights conferred by the
Constitution of India in view of the fact that that Act had been inserted in
the Ninth Schedule of the Constitution. This Court also repelled the
contention that the said Act was violative of Section 229 of the
Government of India Act, 1935 because, in the opinion of the Court, the
right secured by Section 229 was lifted into the formal category of a
fundamental right. The principle laid down in that case cannot be, invoked
in a case like the present wherein the area covered by the right existing
since before the Constitution is wider, than the area covered by the
fundamental right and the fundamental right deals with only an aspect of
such pre-existing right. Moreover, the correctness of the view taken in the
above case, in my opinion, is open to question in view of the later
decision of Makhan Singh (supra) decided by a Bench of seven Judges
wherein it has been observed on page 821 that after the coming into
force of the Constitution, a detenu has two remedies, one under Article
226 or Article 32 of the Constitution and another under Section 491 of the
CrPC. Makhan Singh's case, as discussed elsewhere, shows that the
remedy under an earlier statutory provision would not get obliterated
because of the identical remedy by a subsequent Constitutional provision
and that the two can co-exist without losing their independent identity.

160. Preventive detention, though not strictly punishment, is akin to

punishment, because of the evil consequences of being deprived of one's
liberty. No one under our laws can be deprived of ins life or liberty without
the authority of law. This would be evident from the fact that if a person
without the authority of law takes another person's life, he would
normally be guilty of the offence of culpable homicide. Likewise, if a
person deprives another of ins liberty by confining him, he would in the
absence of any valid justification, be guilty of wrongful confinement. It is
for that reason that courts have insisted upon the authority of law for a
public servant to take away someone's life or liberty. An executioner
carrying out the sentence of death imposed by the court would not
commit the offence of homicide, because he is executing the condemned
man in obedience to a warrant issued by a court haying jurisdiction in
accordance with the law of the land. Likewise, a jailor confining a person
sentenced to imprisonment is not guilty of the offence of wrongful
confinement. The principle that no one shall be deprived of his life or
liberty without the authority of law stems not merely from the basic
assumption in every civilised society governed by the rule of law of the
sanctity of life and liberty, it flows equally from the fact that under out
penal laws no one is empowered to deprive a person of ins life or liberty
without the authority of law.

161. The fact that penal laws of India answer to the description of the
word "law", which has been used in Article 21 would not militate against
the inference that Article 21 is not the sole repository of the right to life or
personal liberty and that the principle that no one shall be deprived of ins
life or personal liberty without the authority of law flows from the penal
laws of India. Nor is it the effect of Article 21 that penal laws get merged
in Article 21 because of the fact that they constitute "law" as mentioned
in Article 21, for were it so the suspension of the right to move a court for
enforcement of fundamental right contained in Article 21 would also result
in suspension of the right to move any court for enforcement of penal .
laws.

162. It has been pointed out above that even before the coming into force
of the Constitution, the position under the common law both in England
and in India was that the State could not deprive a person of ins life and
liberty without the authority of law. The same was the position under the
penal laws of India. It was an offence under the Indian Penal Code, as
already mentioned, to deprive a person of ins life or liberty unless such a
course was sanctioned by the laws of the land. An action was also
maintainable under the law of torts for wrongful confinement in case any
person was deprived of ins personal liberty without the authority of law.
In addition to that, we had Section 491 of the CrPC which provided the
remedy of habeas corpus against detention without the authority of law.
Such laws continued to remain in force in view of Article 372 after the
coming into force of the Constitution. According to that article,
notwithstanding the repeal by this Constitution of the enactments referred
to in Article 395 but subject to the other provisions of this Constitution, all
the law in force in the territory of India immediately before the
commencement of this Constitution shall continue in force therein until
altered or repealed or amended by a competent legislature or other
competent authority. The law in force, as observed by the majority of he
Constitution Bench in the case of Director of Rationing and Distribution v.
The Corporation of Calcutta and Ors. MANU/SC/0061/1960 :
1960CriLJ1684 , include not only the statutory law but also custom or
usage haying the force of law as also the common law of England which,
was adopted as the law of the country before the coming into force of the
Constitution. The position thus seems to be firmly established that at the
time, the Constitution came into force, the legal position was that no one
could be deprived of ins life or liberty without the-authority of law.

163. It is difficult to accede to the contention that because of Article 21 of

the Constitution, the law which was already in force that no one could be
deprived of ins life or liberty without the authority of law was obliterated
and ceased to remain in force. No rule of construction interpretation
warrants such an inference. Section 491 of the CrPC continued to remain
an integral part of that Code despite the fact that the High Courts were
vested with the power of issuing writs of habeas corpus under Article 226.
No submission was ever advanced on the score that the said provision
had become a dead letter of enforceable because of the fact that Article
226 was made a part of the Constitution, Indeed, in the case of Makhan
Singh (supra) Gajendragadkar J. speaking for the majority stated that
after the coming into force of the Constitution, a party could avail of
either the remedy of Section 491 of the CrPC or that of Article 226 of the
Constitution. The above observations clearly go to show that
constitutional recognition of the remedy of writ of habeas corpus did not
obliterate or abrogate the statutory remedy of writ of habeas corpus.
Section 491 of the CrPC continued to be part of that Code till that Code
was replaced by the new Code. Although the remedy of writ of habeas
corpus is not now available under the new CrPC, 1973, the same remedy
is still available under Article 226 of the Constitution.

164. Our attention has been invited to Section 18 of the maintenance of

Internal Security Act as amended. According to that section, no person,
including a foreigner, in respect of whom an order is made or purported to
be made under Section 3 shall have any right to personal liberty by virtue
of natural law or common law, if any. This Section would not, in my
opinion, detract from my conclusion that Article 21 is not the sole
repository of the right to personal liberty. It has been pointed out above
that the principle that no one shall be deprived of ins life and personal
liberty without the authority of laws follows not merely from common law,
it flows equally from statutory law like the penal law in force in India. The
above principle, as would appear from what has been discussed
elsewhere, is also an essential facet of the rule of law. Section 18,
therefore, cannot be of much assistance to the appellants. I am also
unable to subscribe to the view that Section 18 would have the effect of
enlarging the ambit of the power of the detaining authority for the
purpose of passing an order for detention. There has been, it needs to be
emphasised, no amendment of Section 3 of the Act. Section 18 cannot be
construed to mean that even if an order for detention is made on grounds
not warranted by Section 3 of the Act, it shall be taken to be an order
under Section 3 of the Act. Apart from the fact that such an inference is
not permissible on the language of Section 18, the acceptance of this
view would also render the validity of Section 18 open to question on the
ground that it suffers from the vice of excessive delegation, of legislative
power. The legislature is bound to lay down the legislative policy by
prescribing the circumstances in which an order for detention can be
made. It is not permissible for the legislature to confer, a power of
detention without laying down guidelines and prescribing the
circumstances in which such order should be made. To do so would be
tantamount to abdication of legislatitve function for in such an event it
would be open to the detaining authority to detain a person on any
ground whatsoever.

165. I agree with the learned Attorney General that if we are to accept ins
argument about the scope of the Presidential order of June 27, 1975, in
that event we have to accept it in its entirety and go the whole hog; there
is no half way house in between. So let us examine the consequences of
the acceptance of the above argument. This would mean that if any
official, even a head constable of police, capriciously or maliciously,
arrests a person and detains him indefinitely without any authority of law,
the aggrieved person would not be able to seek any relief from the courts
against such detention during the period of emergency. This would also
mean that it would not be necessary to enact any law on the subject and
even in the absence of any such law, if any official for reasons which have
nothing to do with the security of State or maintenance of public order,
but because of personal animosity, arrests and puts behind the bar any
person or a whole group or family of persons, the aggrieved person or
persons would not be able to seek any redress from a court of law. The
same would be the position in case of threat of deprivation or even actual
deprivation of life of a person because Article 21 refers to both
deprivation of life as well as personal liberty. Whether such things actually
come to pass is not the question before us; it is enough to state that all
these are permissible consequences from the acceptance of the
contention that Article 21 is the sole repository of the right to life and
personal liberty and that consequent upon the issue of the Presidential
order, no one can approach any court and seek relief during the period of
emergency against deprivation of life or personal liberty. In order words,
the position would be that so far as executive officers are concerned, in
matters relating to life and personal liberty of citizens, they would not be
governed by any law, they would not be answerable to any court and they
would be wielding more or less despotic powers.
166. To take another illustration. Supposing the Presidential order under
Article 359(1) were to mention Article 21 but not Article 22. The
acceptance of the above submission advanced on behalf of the appellants
would mean that if the State does not release a detenu despite the
opinion of the Advisory Board that there is no sufficient cause for ins
detention and thus keeps him in detention in flagrant violation of the
provisions of Article 22, no habeas corpus petition would be maintainable
and this would be so even though Article 22 itself is a fundamental right.

167. The right to move a court for enforcement of a right under Article 19
has now been suspended by the President under an order issued under
Article 359(1). The effect of that, on a parity of reasoning advanced on
behalf of the appellant would be, that no one can file a suit during the
period of emergency against the State for recovery of property or money
(which is a form of property) because such a suit, except in some
contingencies, would be a suit to enforce the right contained in Article 19.

168. Not much argument is needed to show that if two constructions of

Presidential order were possible, one leading to startling results and the
other not leading to such results, the court should lean in favour of such
construction as would not lead to such results.

169. Equally well established is the rule of construction that if there be a

conflict between the municipal law on one side and the international law
or the provisions of any treaty obligations on the other, the courts would
give effect to municipal law. If, however, two constructions of the
municipal law are possible, the court should lean in favour of adopting
such construction as would make the provisions of the municipal law to be
in harmony with the international law or treaty obligations. Every statute,
according to this rule, is interpreted, so far as its language permits, so as
not to be inconsistent with the committee of nations or the established
rules of international law, and the court will avoid a construction which
would give rise to such inconsistency unless compelled to adopt it by plain
and unambiguous language. But if the language of the statute is clear, it
must be followed notwithstanding the conflict between municipal and
international law which results (see page 183 of Maxwell on the
Interpretation of Statutes, Twelfth Edition.) As observed by Oppenheim's
International law, although municipal courts must apply Municipal Law
even if it conflicts with the law of Nations, there is a presumption against
the existence of such a conflict. As the Law of Nations is based upon the
common consent of the different States, it is improbable that an
enlightened State would intentionally enact a rule conflicting with the Law
of Nations. A rule of Municipal Law, which ostensibly seems to conflict
with the Law of Nations, must, therefore, if possible, always be so
interpreted as to avoid such conflict (see Vol. I, pages 45-46), Lord
Denning gave expression to similar view in the case of Corocraft Ltd. v.
Pan American Airways Inc. [1969] 1 All E. R. 80 when he observed:

The Warsaw Convention is an international convention which is

binding in international law on all the countries who have ratified
it: and it is the duty of these courts to construe our legislation so
as to be in conformity with international law and not in conflict
with it.

The rule about the construction of municipal law also holds good" when
construing the provisions of the Constitution as would appear from
International Law by Fenwick, Third Edition, page 90, wherein is
observed:

But while in the case of a direct conflict between national and

international law, the rule of national law will of necessity take
priority until changed to conform to the international obligations
of the state, there are numerous cases in which the provisions of
the national Constitution of the provisions of a particular
legislative act are not so explicit but that they may be interpreted
so as to enable the executive and the judicial agencies of the
state to act in-accordance with the obligations (of international
law.

According to Article 51 our Constitution, the State shall endeavor to inter

alia foster respect for international law and treaty obligations in the
dealings of organised peoples with one another. Relying open that article,
Sikri CJ. observed in the case of Kesavananda Blwrathi v. State of Kerala
MANU/SC/0114/1972 : 1972CriLJ1526:

it seems to me that, in view of Article 51 of the directive

principles, this Court must interpret language of the Constitution,
if mot intractable, which is after all a municipal law, in the light of
the United Nations Charter and the solemn declaration subscribed
to by India.

Articles 8 and 9 of the Universal Declaration of Human Rights in respect of

which resolution was passed by the United Nations and was supported by
India read as under:

ARTICLE 8

Everyone has the right to an effective remedy by the competent

national tribunals for acts violating the fundamental rights
granted him by the Constitution or by law.
 ARTICLE 9

No one shall be subjected to arbitrary arrest, detention or exile.

170. While dealing with the Presidential order under Article 359(1), we
should adopt such a construction as would, if possible, not bring it in
conflict with the above Articles 8 and 9. From what has been discussed
elsewhere, it is plain that such a construction is not only possible, it is
also preeminently reasonable. The Presidential order, therefore, should be
so construed as not to warrant arbitrary arrest or to bar right to an
effective remedy by competent national tribunals for acts violating basic
right of personal liberty granted by law.

171. It has been argued that suspending the right of a person to move
any court for the enforcement of right to life and personal liberty is done
under a constitutional provision and therefore it cannot be said that the
resulting situation would mean the absence of the rule of law. This
argument, in my opinion, cannot stand close scrutiny for it tries to equate
illusion of the rule of law with the reality of rule of law. Supposing a law is
made that in the matter of the protection of life and liberty, the
administrative officers would not be governed by any law and that it
would be permissible for them to deprive a person of life and liberty
without any authority of law. In one sense, it might in that event be
argued that even if lives of hundreds of persons are taken capriciously
and maliciously without the authority of law, it is enforcement of the
above enacted law. As observed by Friedman on page 500 of Law in
Changing Society, 2nd Ed., in a purely formal sense, any system of norm
based on a hierarchy of orders, even the organised mass murders of Nazi
regime qualify as law. This argument cannot however, disguise the reality
of the matter that hundreds of innocent lives have been taken because of
the absence of rule of law. A state of negation of rule of law would not
cease to be such a state because of the fact that such a state of negation
of rule of law has been brought about by a statute. Absence of rule of law
would nevertheless be absence of rule of law even though it is brought
about by a law to repeal all laws. In the words of Wade, Government
under the rule of law demands proper legal limits on the exercise of
power. This does not mean merely that acts of authority must be justified
by law, for if the law is wide enough it can justify a dictatorship based on
the tyrannical but perfectly legal principle quod principal placuit legis
habet vigorem. The rule of law requires something further. Powers must
first be approved by Parliament, and must then be granted by Parliament
within definable limits (see Administrative Law, Third Edition, page 46). It
is no doubt true that Dicey's concept of rule of law has been criticised by
subsequent writers since it equates the rule of law with the absence not
only of arbitrary but even of wide discretionary power. The following
reformulation of Dicey's ideas as applicable to modern welfare state given
by H.W. Jones eliminates the equation of arbitrary and wide discretionary
powers:

There are, I believe, ideas of universal validity reflected in Dicey's

'three meanings' of the rule of law.....(1) in a decent society it is
unthinkable that government, or any officer of government,
possesses arbitrary power- over the person or the interests of the
individual; (2) all members of society, private persons and
governmental officials alike, must be equally responsible before
the law; and (3) effective judicial-remedies are more important
than abstract constitutional declarations in securing the rights of
the individual against encroachment by the State" (see Law in a
Changing Society by Friedmann, 2nd Ed., page 501).

172. One of the essential attributes of the rule of law is that executive
action to the prejudice of or detrimental to the right of an individual must
have the sanction of some law. This principle has now been well settled in
a chain of authorities of this Court.

173. In the case of Rai Sahib Ram Jawaya Kapur and Ors. v. The State of
Punjab MANU/SC/0011/1955 : [1955]2SCR225 Mukherjea C.J. speaking
for the Constitution Bench of this Court observed:

Specific legislation may indeed be necessary if the Government

require certain powers in addition to what they possess under
ordinary law, in order to carry on the particular trade or business.
Thus when it is necessary to encroach upon private rights in
order to enable the Government to carry on, their business, a
specific legislation sanctioning such course would have to be
passed.

174. The above attribute of the rule of law has been specially highlighted
in the decision of this Court1 in the case of State of Madhya Pradesh and
Anr. v. Thakur Bharat Singh MANU/SC/0043/1967 : [1967]2SCR454 . In
that case the State Government made an order under Section 3 of the
Madhya Pradesh Public Security Act, 1959, directing that the respondent
(i) shall not be in any place in Raipur District, (ii) shall immediately
proceed to and reside in a named town, and (iii) shall report daily to a
police station in that town. The respondent challenged the order by a writ
petition under Articles 226 and 227 of the Constitution on the ground
inter alia, that Section 3 infringed the fundamental rights guaranteed
under Article 19 of the Constitution. The High Court declared Clauses (ii)
and (iii) of the order invalid on the ground that Clauses (b) and (c) of
Section 3 (i) of the Madhya Pradesh Public Security Act on which they
were based contravened Article 19. On appeal this Court held that Section
3 (i) (b) violated Article 19 and as it was a pre-emergency enactment, it
must be deemed to be void when enacted. Section 3 (i) (b) was further
held not to have revived as a result of the proclamation of emergency by
the President. Counsel for the State submitted in the alternative that even
if Section 3 (i) (b) was void, Article 358 protected action, both legislative
and executive, taken after proclamation of emergency, and therefore any
executive action taken by the State would not be liable to be challenged
on the ground that it infringed the fundamental freedoms under Article
19; This contention was repelled. Shah J. (as he then was) speaking for
the Court observed:

All executive action which operates to the prejudice of any person

must have the authority of law to support it, and the terms of
Article 358 do not detract from that rule. Article 358 expressly
authorises the State to take legislative or executive action
provided such action was competent for the State to make or
take, but for the provisions contained in Part III of the
Constitution. Article 358 does not purport to invest the State with
arbitrary authority to take action to the prejudice of citizens and
others: it merely provides that so long as the proclamation of
emergency subsists laws may be enacted, and executive action
may be taken in pursuance of lawful authority, which if the
provisions of Article 19 were operative would have been invalid.
Our federal structure is founded on certain fundamental
principles: (1) the sovereignty of the people with limited
Government authority i. e. the Government must be conducted in
accordance with the will of the majority of the people. The people
govern themselves through their representatives, whereas the
official agencies of the executive Government possess only such
powers as have been conferred upon them by the people; (2)
There is distribution of powers between the three organs of the
State-legislative, executive and judicial-each organ having some
check direct or indirect on the other: and (3) the rule of law
which includes judicial review of arbitrary executive actions. As
pointed out by Dicey in ins 'Introduction to the study of the Law
of the Constitution', 10th Edn., at p. 202 the expression 'rule of
law' has three meanings, or may be regarded from three different
points of view. 'It means in the first place, the absolute
supremacy or predominance of regular law as opposed to the
influence of arbitrary power, and excludes the existence of
arbitrariness, of prerogative or even of wide discretionary
authority on the part of government.' At p. 188 Dicey points out:
 In almost every continental community the executive
exercises far wider discretionary authority in the matter
of arrest, of temporary imprisonment, of expulsion from
its territory, and the like, than is either legally claimed or
in fact exerted by the government in England : and a
study of European polities now and again reminds
English readers that wherever there is discretion there is
room for arbitrariness, and that in a republic no less than
under a monarchy discretionary authority on the part of
the government must mean insecurity for legal freedom
ion the part of its subjects.' We have adopted under our
Constitution not the Continental system but the British
system under which the rule of law prevails. Every act
done by the Government or by its officers must, if it is to
operate to the prejudice of any person, be supported by
some legislative authority.

175. In Chief Settlement Commissioner, Rehabilitation Department,

Punjab and Ors. etc. v. Om Parkash and Ors. MANU/SC/0138/1968 :
[1968]3SCR655 a Division Bench of this Court observed:

In our constitutional system, the central and most characteristic

feature is the concept of the rule of law which means, in the
present context, the authority of the law courts to test all
administrative action by the standard of legality.. The
administrative or executive action that does not meet the
standard will be set aside if the aggrieved person brings the
appropriate action in the competent court.

176. In District Collector of Hyderabad and Ors. v. M/s. Ibrahim & Co. etc.
MANU/SC/0070/1970 : [1970]3SCR498 the respondents who were
recognized dealers in sugar were prevented by an executive order from
carrying on the business. The question which actually arose for decision
before this Court was whether the said order was protected under Articles
358 and 359 because of the declaration of state of emergency by the
president. Shah j. speaking for Bench of six Judges of this Court
observed:

But the executive order immune from attack is only that order
which the State was competent, but for the provisions contained
in Article 19, to make. Executive action of the State Government
which is otherwise invalid is not immune from attack, merely
because a proclamation of emergency is in operation when it is
taken. Since the order of the State Government was plainly
contrary to the statutory provisions contained in the Andhra
 Pradesh Sugar Dealers Licensing Order and the Sugar Control
order, it was not protected under under Article 358 of the
Constitution.

Nor had it the protection under Article 259.

177. In Bennett Coleman & Co. and Ors. v. Union of India

MANU/SC/0038/1972 : [1973]2SCR757 Ray J. (as he then was) speaking
for the majority of the Constitution Bench jelled upon Thakur Bharat
Singh and M/s. Ibrahim & Co. cases (supra) and observed:

Executive action which is unconstitutional is not immune during

the proclamation of emergency. During the proclamation of
emergency Article 19 is suspended. But it would not authorise
the taking of detrimental executive action during the emergency
affecting the fundamental rights in Article 19 without any
legislative authority or in purported exercise of power conferred
by any per-emergency law which was invalid when enacted.

178. In Shree Meenakshi Mills Ltd. v. Union of India MANU/SC/0064/1973

: [1974]2SCR398 this Court dealt with petitions challenging the validity of
the fixation of price of cotton yarns under an executive order. Objection
was raised to the maintainability of the petitions on the score of
proclamation of emergency. This objection was repelled and reliance was
placed on the decision of the Court in the case of Bennett Coleman & Co.

179. In Naraindas Indurkhya v. The State of Madhya Pradesh

MANU/SC/0066/1974 : [1974]3SCR624 the Constitution Bench of this
Court to which three of us (Ray C. J, Khanna and Bhagwati JJ.) were
parties placed reliance on the decisions in the cases of Ram Jawaya Kapur,
Thakur Bharat Singh and Bennett Coleman & Co. (surpa)

180. These authorities clearly highlight the principle that executive

authorities cannot under the rule of law take any action to the prejudice
of an individual unless such action is authorised by law. A fortiori it would
follow that under the rule of law it is not permissible to deprive a person
of ins life or personal liberty without the authority of law.

181. It may be appropriate at this age to refer to other cases in which

stress has been laid on rule of law by this Court.

182. Wanchoo J. in the case of Director of Rationing and Distribution v.

The Corporation of Calcutta and Ors. MANU/SC/0061/1960 :
1960CriLJ1684 stated that in our country the rule of law prevails and our
Constitution has guaranteed it by the provisions contained in Part III
thereof as well as other provisions in other Parts.
183. In Bishan Das and Ors. v. The State of Punjab and Ors.
MANU/SC/0348/1961 : [1962]2SCR69 S. K. Das J. speaking for the
Constitution Bench of this Court deprecated action taken by the State and
its officers on the ground that it was destructive of the basic principles of
the rule of law.

184. In G. Sadanandan vi. State of Kerala and Anr. (supra)

Gajendragadkar CJ. speaking for the Constitution bench observed that the
paramount requirement of the Constitution was that even during
emergency the freedom of Indian citizens would not be taken away
without the existence' of justifying necessity specified by the Defence of
India Rules.

185. In S. G. Jaisinghani v. Union of India and Ors. MANU/SC/0361/1967

: [1967]65ITR34(SC) , Ramaswami J. speaking for the Constitution Bench
of this Court observed as under:

In this context it is important to emphasise that the absence of

arbitrary power is the first essential of the rule of law upon which
our whole constitutional system is based. In a system governed
by rule of law, discretion, when conferred upon executive
authorities, must be confined within clearly defined limits. The
rule of law from this point of view means that decisions should be
made by the application of known principles and rules and, in
general, such decisions should be predictable and the citizen
should know where he is. If a decision is taken without any
principle or without any rule it is unpredictable and such a
decision is the antithesis of a decision taken in accordance with
the rule of law. (See Dicey--'Law of the Constitution'--Tenth Edn.,
Introduction ex). 'Law has reached its finest moments', stated
Douglas, J. in United States v. Wunderlick 342 U. S. 98, 'when it
has freed man from the unlimited discretion of some ruler...
Where discretion is absolute, man has always suffered'. It is in
this sense that the rule of law may be said to be sworn enemy of
caprice. Discretion, as Lord Mansfield stated it in classic terms in
the case of John. Wilkes (1770) 4 Burr. 2528 at 2539, 'means
sound discretion guided by law. It must be governed by rule, not
by humour : It must not be arbitrary, vague and fanciful.

186. In the case of Shrimati Indira Nehru Gandhi v. Shri Raj Naraia
MANU/SC/0304/1975 : [1976]2SCR347 both Ray CJ. and Chandrachud J.
laid stress on the rule of Jaw in our constitutional scheme.

187. It would not, in my opinion, be correct to consider rule of law as a

vague or nebulous concept because of its description as an unruly horse
by Ivor Jennings. Indeed, according to Jennings, the rule of law demands
in the first place that the powers of the Executive should not only be
derived from law, but that they should be limited by law. Whatever might
be the position in peripheral cases, there are certain aspects which
constitute the very essence of the rule of law. Absence of arbitrariness
and the need of the authority of law for official acts affecting prejudicially
rights of individuals is one of those aspects. The power of the courts to
grant relief against arbitrariness or absence of authority of law in the
matter of the liberty of the subject may now well be taken to be a normal
feature of the rule of law. To quote from Halsbury's Laws of England,
Third Edition, Vol. 7, para 416, the so-called liberties of the subject are
really implications drawn from the two principles that the subject may say
or do what he pleases, provided he does not transgress substantive law,
or infringe the legal rights of others, whereas public authorities including
the Crown) may do nothing but what they are authorised to do by some
rule of common law or statute. The essence of rule of law., according to
Prof. Goodhart, is that public officers are governed by law, which limits
their powers. It means Government under law--the supremacy of law
over the Government, as distinct from Government by law--the mere
supremacy of law in society generally--which would apply also to
totalitarian states (See page 42 of constitutional and Administrative Law
by Hood Phillips, Third Edition).

188. I may mention that there has been an amendment of Article 359
inasmuch as Clause (1A) has been added in that article. The effect of the
insertion of that clause in Article 359 is that while an order made under
Clause (1) mentioning any of the rights conferred by Part III is in
operation, nothing in that Part conferring those rights shall restrict the
power of the State to make any law or to take any executive action which
the State would but for the provisions contained in that Part be competent
to make or to take, but any law so made shall, to the extent of the in
competency, cease to have effect as soon as the order aforesaid ceases to
operate, except as respects thing done or omitted to be done before the
law so ceases to have effect. Clause (1A) thus protects laws and
executive actions from any attack on validity on the score of being
violative of the fundamental rights mentioned in the Presidential order in
the same way as Article 358 protects the laws and executive actions from
being challenged on the ground of being violative of Article 19 during the
period of emergency. If the existence of Article 358 did not have the
effect of dispensing with the necessity for an executive action operating to
the prejudice of the right of a citizen of the authority of law, the same
must necessarily be the position after the insertion of Clause (1A) in
Article 359. It is significant that the language of Clause (1A) of Article 359
in material respect is substantially the same as that of Article 358. The
language of Clause (1A) of Article 359 makes it clear that the protection
which is afforded by that clause is to such law or executive action as the
State would but for the provisions contained in Part III of the Constitution
be competent to make or take. The word "competent" has a significance
and it is apparent that despite the Presidential order under Article 359(1),
in the case of executive action the competence of the State to take such
action would have to be established. Such competence would, however,
be judged ignoring the restriction placed by the provisions of Part III of
the Constitution. To put it in other words, Clause (1A) of Article 359 does
not' dispense with the necessity of competence to make law or take
executive action. The only effect of that clause is that during the period of
emergency, the restriction placed upon the competence by fundamental
rights would not be there. But it would still be necessary to establish the
competence dehors the restrictions of the fundamental rights.

189. The matter can also be looked at from another angle. Before any
public authority can deprive a person of ins life or personal liberty, two
requirements are to be satisfied:

(1) Power must be conferred by law upon such authority to

deprive a person of ins life or liberty; and

(2) Law must also prescribe the procedure for the exercise of
such power.

Suspension of the right to move any court for the enforcement of the
right under Article 21 can at the best impinge upon the second
requirement; it cannot affect the first requirement which is a cardinal
principle of the rule of law. I am conscious of the fact that though Article
21 refers to procedure established by law, there are observations in
(Gopalan's case that the Article would also cover substantive law for
affording protection to life and liberty. What Article 21 lays down is that
no person shall be deprived of ins life or personal liberty except according
to procedure established by law. Procedure about the exercise of power of
depriving a person of ins life or personal liberty necessarily presupposes
that the substantive power of depriving a person of ins life or personal
liberty has been vested in an authority and that such power exists.
Without the existence of such substantive power, no question can arise
about the procedure for the exercise of that power. It has, therefore, been
held that though there is no reference to substantive power in Article 21,
the said Article would cover both the existence of the substantive power
of depriving a person of ins life and personal liberty as well as the
procedure for the exercise of that power. The question with which we are
concerned is as to what is the effect of the suspension of the right to
move a court for the enforcement of the right contained in Article 21. The
effect, it may possibly be argued, is that consequent upon such
suspension, if a person is deprived of ins life or personal liberty under a
law not satisfying the second requirement indicated above, he cannot
seek judicial redress on that score. Would it, however, follow from the
suspension of such right that no judicial remedy would be available if a
person is deprived by an authority of ins life or personal liberty even
though such an authority has not been vested with the substantive power
of deprivation of life and personal liberty. The answer to this question in
my opinion, should plainly be in the negative. The suspension of the right
to move a court for the enforcement of the right contained in Article 21
cannot have the effect of debarring an aggrieved person from
approaching the courts with the complaint regarding deprivation of life or
personal liberty by an authority on the score that no power has been
vested in the authority to deprive a person of life or liberty. The
presupposition of the existence of substantive power to deprive a person
of ins life or personal liberty in Article 21 even though that Article only
mentions the procedure, would not necessarily point to the conclusion
that in the event of the suspension of the right to move any court for the
enforcement of Article 21, the suspension would also dispense with the
necessity of the existence of the substantive power. The coexistence of
substantive power and; procedure established by law for depriving a
person of ins life and liberty which is implicit in Article 21 would not lead
to the result that even if there is suspension of the right regarding
procedure, suspension would also operate upon the necessity of
substantive power. What is true of a proposition need not be true of the
converse of that proposition. The suspension of the right to move any
court for the enforcement of the right contained in Article 21 may have
the effect of dispensing with the necessity of prescribing procedure for the
exercise of substantive power to deprive a person of ins life or personal
liberty, it can in no case have the effect of permitting an authority to
deprive a person of ins life or personal liberty without the existence of
substantive power. The close bond which is there between the existence
of substantive power of depriving a person of Ms life or personal liberty
and the procedure for the exercise of that power, if the right contained in
Article 21 were in operation, would not necessarily hold good if that right
were suspended because the removal of compulsion about the
prescription of procedure for the exercise of the substantive power would
not do away with the compulsion regarding the existence of that power.

190. It is significant that there is a difference in the language of Article 21

and that of Article 31(1) wherein the framers of the Constitution said that
no one shall be deprived of ins property save by the authority of law. In
considering the effect of Presidential order suspending the right of a
person to move any court for enforcement of right guaranteed by Article
21, we should not treat the words "except according to procedure
established by law" to be synonymous with "save by authority of law".
191. The President can in exercise o£ powers conferred by Article 359(1)
suspend when the proclamation of emergency is in operation, the right/to
move any court for the enforcement of such of the fundamental rights as
may be mentioned in the order. On the plain language of; Article 359(1),
the President has no power to suspend the right to move any court for the
enforcement of rights which are not fundamental rights conferred by Part
III of the Constitution. Rights created by statutes are not fundamental
rights conferred by Part III of the Constitution and as such enforcement of
such statutory rights cannot be suspended under Article 359(1). Likewise,
Article 359(1) does not deal with obligations and liabilities which flow
from statutory provisions, and it would follow that an order under Article
359(1) cannot affect those obligations and liabilities arising out of
statutory provisions. Nor can a Presidential order under Article 359(1)
nullify or suspend the operation of any statute enacted by a competent
legislature. Any redress sought from a court of law on the score of breach
of statutory provisions would be outside the purview of Article 359(1) and
the Presidential order made hereunder. The Presidential order cannot put
the detenu in a worse position than that in which he would be if Article 21
were repealed. It cannot be disputed that if Article 21 were repealed, a
detenu would not be barred from obtaining relief under a statute in case
there is violation of statutory4 provisions. Likewise, in the event of repeal
of Article 21, a detenu can rightly claim in a court of law that he cannot
be deprived of has life or personal liberty without the authority of law.
Article 359(1) ousts the jurisdiction of the court only in respect of matters
specified therein during the period of emergency. So far as matters not
mentioned in Article 359(1) and the Presidential order thereunder are
concerned, the jurisdiction of the court is not ousted. A provision which
has the effect of ousting the jurisdiction of the courts should be construed
strictly. No inference of the ouster of the jurisdiction of the court can be
drawn unless such inference is warranted by the clear language of the
provision ousting such jurisdiction. I may in this context refer to the
observations of the Constitution Bench of this Court in the case of K.
Anandan Nambiar and Anr. v. Chief Secretary, Government of Madras and
Ors. Gajendragadkar J. speaking for the Constitution Bench observed:

In construing the effect of the Presidential order, it is necessary

to bear in mind the general rule of construction that where an
order purports to suspend the fundamental rights guaranteed to
the citizens by the Constitution, the said order must be strictly
construed in favour of the citizens' fundamental rights.

192. I am also unable to accede to the argument that though the position
under law may be that no one can be deprived of ins right to life or
personal liberty without the authority of law, the remedy to enforce the
right to life or personal liberty is no longer available during the period of
emergency because of the suspension of right to move any court for
enforcement of right conferred by Article 21. The basic assumption of this
argument is that Article 21 is the sole repository of right to life and
personal liberty. Such an assumption, as already stated above, is not well
founded. This apart, a Presidential order under Article 359(1) cannot have
the effect of suspending the right to enforce rights flowing from statutes,
nor can it bar access to the courts of persons seeking redress on the
score of contravention of statutory provisions. Statutory provisions are
enacted to be complied with and it is not permissible to contravene them.
Statutory provisions cannot be treated as mere pious exhortations or
words of advice which may be abjured or disobeyed with impunity. Nor is
compliance with statutory provisions optional or at the sufferance of the
official concerned. It is the presence of legal sanctions which distinguishes
positive law from other systems of rules and norms. To be a legal system
a set of norms must furnish sanctions for some of its precepts. A legal
sanction is usually thought of as a harmful consequence to induce
compliance with law. Non-compliance with statutory provisions entails
certain legal consequences. The Presidential order cannot stand in the
way of the courts giving effect to those consequences. To put it
differently, the executive authorities exercising power under a statute
have to act in conformity with its provisions and within the limits set out
therein. When a statute deals with matters affecting prejudicially the
rights of individuals, the ambit of the power of the authorities acting
under the statute would be circumscribed by its provisions, and it would
not be permissible to invoke some indefinite general powers of the
executive. As observed by Lord Atkinson in the case of Attorney General
v. De Keyser's Royal Hotel Ltd. [1920] A. C. 508, the constitutional
principle is that when the power of the Executive to interfere with the
property or liberty of subjects has been placed under Parliamentary
control, and directly regulated by statute, the Executive no longer derives
its authority from the Royal Prerogative of the Crown but from Parliament,
and that in exercising such authority the Executive is bound to observe
the restrictions which Parliament has imposed in favour of the subject. It
is also not the result of the Presidential order, as discussed elsewhere,
that because of the suspension of the right to move any court for
enforcement of right under Article 21, the remedy of a writ of habeas
corpus ceases to be available against the State. The Presidential order
would not preclude a person from challenging the validity of a law or
order on grounds other than violation of Articles 14, 19, 21 and 22. It
may be pertinent to refer to a decision of this Court in the case of
Jaichand Loll Sethia v. State of West Bengal [1966] Su. S .C. R. 464
wherein the Constitution Bench of this Court observed after referring to
the case of Makhan Singh (supra):
 It was pointed out that during the pendency of the Presidential
order the validity of the Ordinance or any rule or order made
thereunder cannot be questioned on the ground that it
contravenes Articles. 14, 21 and 22. But this limitation cannot
preclude a citizen from challenging the validity of the Ordinance
or any rule or order made thereunder on any other ground. If the
appellant seeks to challenge the validity of the Ordinance, rule or
order made thereunder on any ground other than the
contravention of Articles 14., 21 and 22, the Presidential order
cannot come into operation. It is not also open to the appellant to
challenge the order on the ground of contravention of Article 19,
because as soon as a Proclamation of emergency is issued by the
President under Article 358 the provision of Article 19 are
automatically suspended. But the appellant can challenge the
validity of the order on a ground other than those covered by
Article 358, or the Presidential order issued under Article 359(1).
Such a challenge is outside the purview of the Presidential order.
For instance, a citizen will not be deprived of the right to move an
appropriate Court for a writ of habeas corpus on the ground that
ins detention has been ordered mala fide. -Similarly, it will be
open to the citizen to challenge the order of detention on the
ground that any of the grounds given in the order of detention is
irrelevant and there is no real and proximate connection between
the ground given and the object which the legislature has in
view. It may be stated in this context that a mala fide exercise of
power does not necessarily imply any moral turpitude as a matter
of law. It only means that the statutory power is exercised for
purposes foreign to those for which it is in law intended. In other
words, the power conferred by the statute has been utilized for
some indirect purpose not connected with the object of the
statute or the mischief it seeks to remedy.

Similar view was expressed in the case of Durgadas Shirali v. Union of

India and Ors. MANU/SC/0092/1965 : 1966CriLJ812 In G. Sadanandan v.
State of Kerala and Anr. MANU/SC/0076/1966 : 1966CriLJ1533 the
Constitution Bench of this Court speaking through Gajendragadkar CJ.
struck down a detention order on the ground that it was mala fide.

193. Our founding fathers made Article 226 which confers power on the
High Court to issue inter alia writes in the nature of habeas corpus an
integral part of the Constitution. They were aware that under the US
Constitution in accordance with Article 1 Section IX the privilege of the
writ of habeas corpus could be suspended when in cases of rebellion or
invasion the public safety may require it. Despite that our founding
fathers made no provision in our Constitution for suspending the power of
the High Courts under Article 226 to issue writs in the nature of habeas
corpus during the period of emergency. They had perhaps in view the
precedent of England where there had been no suspension of writ of
habeas corpus since 1881 and even during the course of First and Second
World Wars. It would, in my opinion, be not permissible to bring about the
result of suspension of habeas corpus by a strained' construction of the
Presidential order under Article 359(1) even though Article 226 continues
to remain in force during the period of emergency.

194. The writ of habeas corpus ad subjiciendum, which is commonly

known as the writ of habeas corpus, is a process for securing the liberty
of the subject by affording an effective means or immediate release from
unlawful or unjustifiable detention, whether in prison or in private
custody. By it the High Court and the judges of that Court, at the instance
of a subject aggrieved, command the production of that subject, and
inquire into the cause of ins imprisonment. If there is no legal justification
for the detention, the party is ordered to be released. Release on habeas
corpus is not, however, an acquittal, nor may the writ be used as a means
of appeal (see Halsbury's Laws of England,, Vol. 11, Third Edition, page
24).

195. In Greene v. Secretary of State for Home Affairs [1942] A.C. 284
Lord Wright observed:

It is clear that the writ of habeas corpus deals with the machinery
of justice, not the substantive law, except in so far as it can be
said that the right to have the writ is itself part of substantive
law. It is essentially a procedural writ, the object of which is to
enforce a legal right .... the inestimable value of the proceedings
is that it is the most efficient mode ever devised by any system
of law to end unlawful detainments and to secure a speedy
release where the circumstances and the law so required.

196. Writ of habeas corpus was described as under by Lord Birkenhead in

the case of Secretary of State for Home Affairs v. O'Brien [1923] A.C. 603
(609):

It is perhaps the most important writ known to the constitutional,

law of England, affording as it does a swift and imperative
remedy in all cases of illegal restraint or confinement. It is of
immemorial antiquity, an instance of its use occurring in the
thirty third year of Edward I. It has through the ages been
jealously maintained by courts of law as a check upon the illegal
usurpation of power by the executive at the cost of the liege.
197. The existence of the power of the courts to issue a writ of habeas
corpus is regarded as one of the most important characteristic of
democratic states under the rule of law. The significance of the writ for
the moral health of the society has been acknowledged by all jurists.
Hallam described it as the "principal bulwark of English liberty". The
uniqueness) of habeas corpus in the procedural armory of our law cannot
be too often emphasised. It differs from all others remethes in that it is
available to bring into question the legality of a person's restraint and to
require justification for such detention. Of course, this does not mean that
prison doors may readily be opened. It does mean that explanation may
be exacted why they should remain closed. It is not the boasting of empty
rhetoric that has treated the writ of habeas corpus as the basic safeguard
of freedom. The great writ of habeas corpus has been for centuries
esteemed the best and sufficient defence of personal freedom (see
Human Rights & Fundamental Freedoms by Jagdish Swarup, page 60).

198. As Article 226 is an integral part of the Constitution, the power of

the High Court to enquire in proceedings for a writ of habeas corpus into
the legality of the detention of persons cannot,, in my opinion, be denied.
Although the Indian Constitution, as mentioned by Mukherjea CJ. in the
case of Ram Jawaya Kapur (supra), has not recognised the doctrine of
separation of powers in its absolute rigidity, the functions of the different
parts or branches of the Government have been sufficiently differentiated
and consequently it can very well be said that our Constitution does not
contemplate assumption* by one organ or part of the State, of functions
that essentially belong to another. The executive can exercise the powers
of departmental or subordinate legislation when such powers are
delegated to it by the legislature. It can also, when so empowered
exercise judicial functions in a limited way. The executive however, can
never go against the provisions of the Constitution or of any law. To quota
the words of Dr. Ambedkar in the Constituent Assembly:

Every Constitution, so far as it relates to what we call parliament

democracy, requires three different, organs of the State, the
executive, the judiciary and the legislature. I have not anywhere
found in any Constitution a provision saying that the executive
shall obey the legislature, nor have I found anywhere in any
Constitution a provision that the executive shall obey the
judiciary. Nowhere is- such a provision to be found. That is
because it is generally understood that the provisions of the
Constitution are binding upon the different organs of the State.
Consequently, it is to be presumed that those who work the
Constitution, those who compose the Legislature and those who
compose the executive and the judiciary know their functions,
their limitations and their duties. It is therefore to be expected
 that if the executive is honest in working the Constitution, then
the executive is bound to obey the Legislature without any kind
of compulsory obligation laid down in the Constitution.

Similarly, if the executive is honest in working the Constitution, it

must act in accordance with the judicial decisions given by the
Supreme Court. therefore my submission is that this is a matter
of one organ of the State acting within its own limitations and
obeying the supremacy of the other I organs of the State. In so
far as the Constitution gives a supremacy to that is a matter of
constitutional obligation which is implicit in the Constitution itself.

It was further observed by him:

No constitutional Government can function in any country unless

any particular constitutional authority remembers) the fact that
its authority is limited by the Constitution and that if there is any
authority created by the Constitution which has to decided
between that particular authority and any other authority, then
the decision of that authority shall be binding upon any other
organ. That is the sanction which this Constitution gives in order
to see that the President shall follow the advice of ins Ministers,
that the executive shall not exceed in its executive authority the
law made by Parliament and that the executive shall not give its
own interpretation of the law which is in conflict with the
interpretation of the judicial organ created by the Constitution.

Article 226 of the Constitution confers power upon the High Courts of
issuing appropriate writs in case it is found that the executive orders are
not in conformity with the provisions of the Constitution and the laws of
the land. Judicial scrutiny of executive orders with a view to ensure that
they are not violative of the provisions of the Constitution and the laws of
the land being an integral part of our constitutional scheme, it is not
permissible to exclude judicial scrutiny except to the extent such
exclusion is warranted by the provisions of the Constitution and the laws
made in accordance with those provisions.

199. There is, as already mentioned, a clear demarcation of the spheres

of function and power in our Constitution. The acceptance of the
contention advanced on behalf of the appellants would mean that during
the period of emergency, the courts would be reduced to the position of
being helpless spectators even if glaring and blatant instances of
deprivation of life and personal liberty in contravention of the statute are
brought to their notice. It would also mean that whatever may be the law
passed by the legislature, in the matter of life and personal liberty of the
citizens, the executive during the period of emergency would not be
bound by it and would be at liberty to ignore and contravene it. It is
obvious that the acceptance of the contention would result in a kind of
supremacy of the executive over the legislative and judicial organs of the
State, and thus bring about a constitutional imbalance which perhaps was
never in the contemplation of the framers of the Constitution. The fact
that the government which controls the executive has to enjoy the
confidence of the legislature does not detract from the above conclusion.
The executive under our constitutional scheme is not merely to enjoy the
confidence of the majority in the legislature, it is also bound to carry out
the legislative intent as manifested by the statutes passed by the
legislature. The Constitution further contemplates that the function of
deciding whether the executive has acted in accordance with the
legislative intent should be performed by the courts.

200. The cases before us raise questions of utmost importance and

gravity, questions which impinge not only upon the scope of the different
constitutional provisions, but have impact also upon the basic values
affecting life, liberty and the rule of law. More is at stake in these cases
than the liberty of a few individuals or the correct construction of the
wording of an order. What is at stake is the rule of law. If it could be the
boast of a great English judge (Lord Mansfield in the case of James
Sommersett) that the air of England is too pure for a slave to breathe,
cannot we also say with justifiable pride that this sacred land shall not
suffer eclipse of the rule of law and that the Constitution and the laws of
India do not permit life and liberty to be at the mercy of absolute power
of the executive, a power against which there can be no redress in courts
of law, even if it chooses to act contrary to law or in an arbitrary and
capricious manner. The question is not whether there can be curtailment
of personal liberty when there is threat to the security of the State. I have
no doubt that there can be such curtailment, even on an extensive scale,
in the face of such threat. The question is whether the laws speaking
through the authority of the courts shall be absolutely silenced and
rendered mute because of such threat.

201. No one can deny the power of the State to assume vast powers of
detention in the interest of the security of the State. It may indeed be
necessary to do so to meat the peril facing the nation. The considerations
of security of the State must have a primacy and be kept in the forefront
compared to which the interests of the individuals cart only take a
secondary place. The motto has to be "Who lives, if the country these".
Extraordinary powers are always assumed by the government in all
countries in times of emergency because of the extraordinary nature of
the emergency. The exercise of the power of detention, it is well-settled,,
depends upon the subjective satisfaction of the detaining authority and
the courts can neither act as courts of appeal over the decisions of the
detaining authority nor can they substitute their own opinion for that of
the authority regarding the necessity of detention. There is no antithesis
between the power of the State to detain a person without trial under a
law of preventive detention and the power of the court to examine the
legality of such detention. As observed by Lord Atkin in Rex v. Haluday
[1917] A.C. 260 while dealing with the argument that the Defence of
Realm Consolidation Act of 1914 and the regulation made under it
deprived the subject of ins right under the several Habeas Corpus Acts,,
that is an entire misconception. 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. To quote the words of
Lord Macmillan in the case of Liversidge v. Anderson [1942] A.C. 206.

It is important to have in mind that the regulation in question is a

war measure. This is not to say that the Court sought to adopt in
war time canons of construction different from those they follow
in peace time. The fact that the nation is at war is no justification
for any relaxation of the vigilance of the Courts in seeing that the
law is duly " observed, especially in a matter so fundamental as
the liberty of the subject. Rather the contrary.

In dealing with an application for a writ of habeas corpus, the court only
ensure that the detaining authorities act in accordance with the law of
preventive detention.

The impact upon the individual of the massive and comprehensive powers
of preventive detention with which the administrative officers are armed
has to be cushioned with legal safeguards against arbitrary deprivation of
personal liberty if the premises of the rule of law is not to lose its content
and become meaningless.
The chances of an innocent person being detained under a law providing
for preventive detention on the subjective satisfaction of an
administrative authority are much greater compared to the possibility of
an innocent person being convicted at trial in a court of law. It would be
apposite in this context to refer to the observations of Professor Alan M.
Dershowite:

The available evidence suggest that our system of deter mining

past guilt results in erroneous conviction of relatively few
innocent people. We really do seem to practice what we preach
about preferring the acquittal of guilty men over the conviction of
innocent men.
 But the indications are that any system of predicting future
crimes would result in a vastly larger number of erroneous
confinements--that is, confinements of persons predicted to
engage in violent crime who would not, in fact, do so. Indeed, all
the experience with predicting violent conduct suggests that in
order to spot a significant proportion of future violent criminals,
we would have to reverse the traditional maxim of the criminal
law and adopt a philosophy that it is 'better to confine ten people
who would not commit predicted crimes, than to release one who
would.

(see p. 313 Crime, Law and Society by Goldstein and Gold-stein)

.

It would, therefore, seem to be a matter of melancholy reflection if the

courts were to stay their hand and countenance laxity or condone lapses
in relation to compliance with requirements prescribed by law for
preventive detention.

202. In England there was no suspension of the power of the courts to

issue a writ of habeas corpus during the First World War and the Second
World War. In India also there was no absolute bar" to approaching the
courts during the Sino-Indian hostilities of 1962 and the Indo-Pak wars of
1965 and 1971. It has not been suggested that because of the existence
of the powers of the court to issue writs of habeas corpus war efforts
were in any way prejudicially affected. The United Nations' Economic and
Social Council endorsed the general agreement reached at the Baguio
Seminar that "the writ of habeas corpus or similar remedy of access to
the courts to test to legality and bona-fides of the exercise of the
emergency powers should never be denied to the citizen". It drew
attention to the following passage from the report of the seminar ; "All
members recognised that in times of emergency it might be necessary to
restrict temporarily the freedom of the individual. But they were firmly of
the view that, whatever temporary restrictive measures might be
necessary, recourse to the courts through the right of habeas corpus or
other similar remedy should never be suspended. Rather the legislature
could, if necessary,, subject to well defined procedures safeguarding
human dignity, authorise the temporary detention of persons for reasons
specified in the law. By that means 'the executive can act as emergency
may require but the ultimate judicial protection of individual liberty is
preserved. Members hold strongly that it is a fundamental principle that
the individual should never be deprived of the means of testing the
legality of ins arrest or custody by recourse to judicial process even in
times of emergency. If that principle is departed from, the liberty of the
individual is immediately put in great peril".
203. I am, therefore, of the view that there is no sufficient ground to
interfere with the view taken by all the nine High Courts which went into
the matter, that the Presidential order of June 27, 1975 did not affect the
maintainability of the habeas corpus petitions to question the legality of
the detention orders and that such petitions could be proceeded with
despite that order.

204. We may now deal with the second question regarding the scope and
extent of judicial scrutiny in petitions for writ of habeas corpus relating to
persons detained under MISA. For this purpose it would be appropriate to
first deal with the position under the above law so far as cases not
covered by Section 16A are concerned.

205. According to Section 3(1) of MISA, the authorities specified in the

Sub-section may if satisfied with respect to any person (including a
foreigner) that with a view to preventing him from acting in any manner
prejudicial to (i) the defence of India, the relations of India with foreigner
powers, or the security of India, or (ii) the security of the State or the
maintenance of public order, or (iii) the maintenance of supplies and
services essential to the community, it is necessary so to do make an
order that such person be detained. The words "if satisfied" indicate that
the satisfaction of the authority concerned is a condition precedent to the
making of a detention order. Unless therefore the authority concerned is
satisfied on the material before it that it is necessary to detain a person
with a view to prevent him from indulging in any of the specified
prejudicial activities, it has no power to make an order for ins detention.
Section 3 also contains an implied injunction that the said authority shall
not detain a person under that Section for reasons other than those
specified therein. Although the satisfaction contemplated by the Sub-
section is the subjective satisfaction of the authority concerned, it is
necessary that it should be arrived at in an objective manner. It is
consequently essential that the facts on the basis of which file authority
concerned reaches the conclusion that it is necessary to detain a person
should have a rational nexus or probative value and be germane to the
object for which such detention is allowed under Section 3(1) of MISA. In
case the facts which are taken into account are extraneous, not germane
or do not have any live link or reasonable connection with the object for
which the detention order can be made, the order would be liable to be
quashed. Even if one out of the many grounds on which a detention order
is based is not germane or legally not tenable, the detention order would
be quashed because it is difficult to predicate that the detaining authority
would have come to the requisite satisfaction even in the absence of that
ground. It is plainly not possible to estimate as to how far the irrelevant
or untenable ground operated on the mind of the appropriate authority
and contributed to the creation of the satisfaction on the basis of which
the detention order was made. To say that the other ground which still
remains is quite sufficient to sustain the order would be to substitute an
objective judicial test for the subjective decision of the executive authority
which is against the legislative policy underlying the statute.

206. A law of preventive detention is not punitive but precautionary and

preventive. The power of detention under such law is based on
circumstance of suspicion and not on proof of allegations is required at a
regular trial for the commission of an offence. Such a power is exercised
because of apprehension of future prejudicial activity on the part of the
person ordered to be detained judged in the light of ins past conduct and
propensity. The order for preventive detention in such cases postulates
prior restraint so that the mischief apprehended at the hands of the
person ordered to be detained might not materialise. The consequences
of waiting and declining to take action against that person till the mischief
is actually done would quite often be disastrous and the nation may in
some cases have to pay a heavy price for such abstention. The quantum
of material available regarding the conduct and propensity of a person
may not be sufficient to warrant ins conviction in a court of law for an
offence and yet if the material is germane to the object for which
detention order can legally be made and the detaining authority is
satisfied in view of that material regarding the necessity of making a
detention order, such order-made by that authority would be upheld as
being in accordance with law. It is also not difficult to visualise a situation
wherein serious, crimes are committed in broad daylight and yet the
witnesses to the, crime are so much terrified and awestricken that they
dare not depose against the culprits in a court of law. In such cases also
because of the difficulty of securing the conviction of the culprits, the
courts have upheld the detention orders, if the activities of the culprits
are of such a nature as has a nexus with the object for which detention
order can be made. In a petition for a writ of habeas corpus the courts do
not normally question the veracity and sufficiency of the material on the
basis of which the authority concerned arrives at the conclusion regarding
the necessity of detention. In case the detenu challenges the correctness,
or 'truth of the allegations on the basis of which the detention order is
made, he should normally do so by means of representation
contemplated by Clause (5) of Article 22. It is legitimate to expect that
the authority concerned and the advisory board when the matter comes
up before them shall take into account the stand taken by the detenu
regarding those allegations. It would be also their function to give
consideration to any fresh material which may be produced before them
regarding the truth and correctness of those allegations. In a habeas
corpus petition, if it becomes apparent on the record from, the admission
made by the detaining authority in the return or some other evidentiary
material of unquestioned authenticity and probative value that some of
the alleged facts upon the basis of which detention order is made are
non-existent, the court would be well justified in quashing the detention
order. A court apart from that cannot go behind the truth of the alleged
facts. If the material is germane to the object for which detention is
legally permissible and an order for detention is made on the basis of that
material, the courts cannot sit as a court of appeal and substitute their
own opinion for that of the authority concerned and hold that the
authority concerned should not have arrived at the conclusion regarding
the necessity of detention. At the same time, it is necessary that the
authority concerned before deciding to detain a person should apply its
mind to the facts before it in a fair and reasonable manner. If the
conclusion arrived at is so unreasonable that no reasonable authority
could ever come to it, the legitimate inference would be that the authority
concerned did not apply its mind to the relevant facts and did not
honestly arrive at the conclusion. To use the words of Lord Halsbury in
Shrape v. Wakefield [1891] A.C. 172:

...when it is said that something is to be done within the

discretion of the authorities that something is to be done
according to the rules of reason and justice, not according to
private opinion .... according to law and not humour. It is to be,
not arbitrary, vague, fanciful, but legal and regular.

Likewise, if there were no grounds, as observed by Lord Morton in Ross v.

Papadopollos [1958] 2 All. E..R. 23, or which the authority concerned
could be satisfied, the court might infer either that the authority did not
honestly form that view or that in forming it, the authority could not have
applied its mind to the relevant facts. The courts would also interfere if
the power of detention is exercised malafide, not in good faith or for an
ulterior purpose. It would follow from the above that if the power of
detention is exercised for an improper purpose, i.e., a purpose not
contemplated by the statute, the order for detention would be quashed.

207. Between malice in fact and malice in law, as observed by Viscount

Haldane L.C. in the case of Shearer v. Shields [1914] A. C. 808, there is a
broad distinction which is not peculiar to any particular system of
jurisprudence. A person who inflicts an injury upon another person in
contravention of the law is not allowed to say that he did so with an
innocent mind; he is taken to know the law, and he must act within the
law. He may, therefore, be guilty of malice in law, although, so far as the
state of ins mind is concerned, he acts ignorantly, and in that sense
innocently. Malice in fact is quite a different thing; it means an actual
malicious intention on the part of the person who has done the wrongful
act, and it may be, in proceedings based on wrongs independent of
contract, a very material ingredient in the question of whether a valid
cause of action can be stated. The above principle was applied by this
Court in detention matters in Bhut Nath v. State of West Bengal
MANU/SC/0412/1974 : 1974CriLJ690 .

208. Normally, it is the past conduct or antecedent history of a person

which shows a propensity or a tendency to act in a particular manner. The
past conduct or antecedent history of a person can, therefore, be
appropriately taken into account in making a detention order. It is indeed
largely from the past events showing tendencies or inclinations of a
person that an inference can be drawn that he is likely in the future to act
in a particular manner. In order to justify such an, inference, it is
necessary that such past conduct or antecedent history should ordinarily
be proximate in point of time. It would, for instance, be normally
irrational to take into account the conduct an activities of a person which
took place ten years, before the date of ins detention and say that even
though after the said incident took place* nothing is known against the
person indicating ins tendency to act in a prejudicial manner, even so on
the strength of the said incident which is ten years old, the authority is
satisfied that ins detention is necessary. It is both inexpedient and
undesirable to lay down an inflexible test as to how far distant the past
conduct or the antecedent history should be for reasonably and rationally
justifying the conclusion that the person concerned if not detained may
indulge in prejudicial activities. The nature of the activity would have also
a bearing in deciding the question of proximity. If, for example, a person
who has links with a particular' foreign power is known to have indulged
in subversive activities when hostilities broke out with that foreign power
and hostilities again break out with that foreign power after ten years, the
authorities concerned, if satisfied on the basis of the past activities that it
is necessary to detain him with a view to preventing him from acting; in a
manner prejudicial to the security of India, might well pass a detention
order in respect of that person. The fact that in such a case there is a
time lag of ten years between the activities of the said person and the
making of the detention order would not vitiate such an order. Likewise, a
remote prejudicial activity may be so similar to a recent prejudicial
activity as may give rise to an inference that the two are a part of chain
of prejudicial activities indicative of a particular inclination. In such an
event the remote activity taken along with the recent activity would retain
its relevance and reliance upon it would not introduce an infirmity. If,
however, in a given case and in the context of the nature of activity the
time lag between the prejudicial activity of a detenu and the detention
order made because of that activity is ex facie long, the detaining
authority should explain the delay in the making of the detention order
with a view to show that there was proximity between the prejudicial
activity and the) detention order. If the detaining authority fails to do so,
in spite of an opportunity having been afforded to it, a serious infirmity
would creep into the detention order (see Rameshwar Singh v. District.
Magistrate Burdwan and Anr. MANU/SC/0041/1963 : 1964CriLJ257 and
Sk. Abdul Munnaf v. State of West Bengal MANU/SC/0210/1974 :
1974CriLJ1233 .

209. One other requirement of a valid order of detention is that the

grounds of detention which are communicated to the detenu should not
be vague so that he may not be handicapped in making an effective
representation against the detention order. Both Article 22(5) of the
Constitution and Section 8(1) of MISA refer to such representation and
provide that the detaining authority shall as soon as may be, and in any
case not later than the prescribed period, communicate to the person
detained the grounds on which the detention order has been made "and
shall afford him the earliest opportunity of making representation against
the order". In view of the Presidential order suspending the right of a
person to move any court for enforcement of specified fundamental
rights, including the one under Article 22(5), it may with plausibility be
argued that the vagueness of grounds of detention would not warrant the
quashing of such detention order during the pendency of the Presidential
order on the score of violation of Article 22(5). The Presidential order
would, however, not stand in the way of the court quashing the detention
order on the score of the infirmity of the vagueness of grounds of
detention because of the contravention of Section 8(1) of MISA.

210. Every law providing for preventive detention contains certain

procedural safeguards. It is imperative that there should be strict
compliance with the requirements of those procedural safeguards to
sustain the validity of detention. Detention without trial results in serious
inroads into personal liberty of an individual. In such cases it is essential
to ensure that there is no deviation from the procedural safeguards
provided by the statute. In the matter of even a criminal trial, it is
procedure that spells out much of the difference between the rule of law
and the rule by whim and caprice. The need for strict adherence to strict
procedural safeguards is much greater when we are dealing with
preventive detention which postulates detention of a person even though
he is not found guilty of the commission of an offence. To condone or
allow relaxation in the matter of compliance with procedural requirements
would necessarily have the effect of practically doing away with even the
slender safeguards provided by the legislature against the arbitrary use of
the provisions relating to preventive detention. The history of personal
liberty,, we must bear in mind, is largely the history of insistence upon
procedure. I am, therefore, of the view that it would be wholly
inappropriate to countenance any laxity in the matter of strict compliance
with procedural requirements prescribed for preventive detention. The
observations made in the case of Kishori Mohan v. State of West Bengal
A. I. R. 1974 S. C. 1749 have relevance. It was observed by this Court in
that case:

The Act confers extraordinary power on the executive to detain a

person without recourse to the ordinary laws of the land and to
trial by courts. Obviously, such power places the personal liberty
of such a person in extreme peril against which he is provided
with a limited right of challenge only. There can, therefore, be no
doubt that such a law has to be strictly construed. Equally also,
the power conferred by such a law has to be exercised with
extreme care and scrupulously within the bounds laid down in
such a law.

211. Question then arises as to how far are the recitals in the order of
detention binding upon the court, and upon whom and to what extent
does the onus lie in a petition for a writ of habeas corpus relating to a
detained person. In this respect I find that in the case of King Emperor v.
Sibnath Banerji 71 I. A. 241 the Judicial Committee, speaking through
Lord Thankerton,, approved the following observation of the learned Chief
Justice of the Federal Court:

It is quite a different thing to question the accuracy of a recital

contained in a duly authenticated order, particularly where the
recital purports to state as a fact the carrying out of what I
regard as a condition necessary to the valid making of that order.
In the normal case the existence of such a recital in a duly
authenticated order will, in the absence of any evidence as to its
accuracy, be accepted by a court as establishing that the
necessary condition was fulfilled. The presence of the recital in
the order will place a difficult burden on the detenu to produce
admissible evidence sufficient to establish even a prima facie
case that the recital is not accurate.

The matter was considered by this Court by the Constitution Bench of this
Court in- the case of G. Sadanandan v. State of Kerala and Anr. (supra)
and it was observed' as under:

After all, the detention of a citizen in every case is the result of

the subjective satisfaction of the appropriate authority; and so, if
a prima facie case is made by the petitioner that ins detention is
either mala fide, or is the result of the casual approach adopted
by the appropriate authority, the appropriate authority should
place before the Court sufficient material in the form of proper
affidavit made by a duly authorised person to show that the
allegations made by the petitioner about the casual character of
 the decision' or its mala fides, are not well-founded. The failure of
respondent No. 1 to place any such material before us in the
present proceedings leaves us no alternative but to accept the
plea made by the petitioner that the order of detention against
him on the 20th October, 1965,, and more particularly, ins
continued detention after the 24th October, 1965, are totally
invalid and unjustified.

The initial burden is on the detenu to show that ins detention is mala fide
or not in accordance with law. If the detenu makes out a prima facie case,
the burden shifts on the State and it becomes essential for the State to
file a good return. Once substantial disquieting doubts are raised by the
detenu in the mind of the court regarding the validity of ins detention, it
would be the bounden duty of the State to dispel those doubts by placing
sufficient material before the court with a view to satisfy it about the
validity of the detention. In case the detenu fails to discharge the initial
burden, ins petition for writ of habeas corpus would be dismissed. Even if
the detenu discharges the initial burden and makes out a prima facie case
against the validity of ins detention, but the State files a good return and
adduces sufficient material before the court to show that ins detention is
valid, the detenu's petition would be dismissed. In case, however,, the
detenu discharges the initial burden and makes out a prima facie case
against the validity of ins detention and the State fails to file a good
return and does not place sufficient material on the record to show that
the detention is valid, a serious infirmity would creep into the State case
as might justify interference by the court and release of the detenu. More
than that, it is not necessary to say for everything in the final analysis
would depend upon the individual facts of the case.

212. We may now turn to the newly added Section 16A of MISA. This
Section was inserted by Section 6 of Act 39 of 1975 with effect from June
29, 1975. Subsequently, there was a further amendment of Section 16A
by Act 14 of 1976 which was published on January 25, 1976. According to
Sub-section (1) of Section 16A, the provisions of the Section would have
effect notwithstanding anything contained in MISA or any rules of natural
justice during the period of emergency proclaimed on December 3, 1971
and June 25, 1975 or a period of 12 months from June 25,, 1975
whichever period was the shortest. Sub-sections (2) and (3) provides for
the making of a declaration to that effect by the authorities concerned if
they are so satisfied on consideration that it is necessary to detain a
person for effectively dealing with the emergency. Sub-section (2) deals
with cases of persons against whom orders of detention were made under
the Act on or after June 25, 1975 but before the combine into force of this
section, viz., June 29, 1975, while Sub-section (3) deals with cases of
detention in respect of persons against whom orders for detention were
made after the coming into force of the section. The proviso to Sub-
section (3) provides for review and the necessity of confirmation within
fifteen days of the declaration by the State Government in case such
declaration is made by an officer subordinate to the State Government.
Sub-section (2A) provides for deemed approval of a detention order made
by an officer subordinate to the State Government in case the State
Government makes a declaration that the detention of the person ordered
to be detained is necessary for dealing effectively with the emergency.
Sub-section (4) provides for reconsideration at intervals not exceeding
four months of the necessity of detention of a person in respect of whom
a declaration is made under Sub-section (2) or (3). According to Sub-
section (5), in making any review, consideration or reconsideration under
Sub-sections (2), (3) or (4), the appropriate Government or officer may
act on the basis of the information and materials in its or ins possession
without communicating or disclosing any such information or materials to
the person concerned or affording him any opportunity of making any
representation against the making under Sub-section (2)M or the making
or confirming under Sub-section (3), or the non-revocation under Sub-
section (4), of the declaration in respect of him. Sub-sections (6) and (7)
provide inter alia that Sections 8 to 12 shall not apply in the case of a
person detained under a detention order to which the provisions of Sub-
sections (2) and (3) apply. Sub-section (8) authorises the Central
Government whenever it considers it necessary so to do to require the
State Government to furnish to the Central Government the information
and materials on the basis of which declaration has/ been made or
confirmed' or not revoked and such other information and materials as
the Central Government may deem necessary.

213. It would appear from what has been stated above that once a
declaration is made with respect to a detenu under Sub-sections (2). or
(3) of Section 16A of MISA, the provisions of Sections 8 to 12 of MISA
would not apply to such a detenu. The result would be that the grounds of
the order of detention would not be disclosed to the person affected by
the order. There would also be no reference of the case of such a person
to the Advisory Board.

214. We may now turn to Sub-section (9) of Section 16A. According to

this Sub-section, notwithstanding anything contained in any other law or
any rule haying the force of, law, the grounds on which an order of
detention is made or purported to be made under Sections against any
person in respect of whom a declaration is made under Sub-section (2) or
Sub-section (3) and any information or materials on which such grounds
or a declaration under Sub-section (2) or a declaration or confirmation
under Sub-section (3) or the non-revocation under Sub-section (4) of a
declaration are based, shall be treated as confidential, and shall be
deemed to refer to matters of State and to be against the public interest
to disclose and save as otherwise provide-ed in this Act, no one shall
communicate or disclose any such ground information or material or any
document containing such ground information or material. According to
Clause (b) of Sub-section (9) no person against whom an order of
detention is made or purported to be made under Section 3 shall be
entitled to the communication or disclosure of any such ground,
information or material as is referred to in Clause (a) or the production to
him of any document containing such ground, information or material.

215. So far as the impact of Section 16A(9) is concerned on the extent of

the power of judicial scrutiny in writs of habeas corpus relating to persons
detained under MISA, I am of the view that the matter should not be
gone into in these appeals for the following reasons.

216. Out of the nine High Courts which dealt with the question of
maintainability of petitions for writs of habeas corpus, only two, namely,
Rajasthan High Court and Nagpur Bench of Bombay High Court have gone
into this aspect, while the other seven have not expressed any view in the
matter. Both Rajasthan High Court and Nagpur Bench of the Bombay High
Court have upheld the validity of; Section 16A(9). While Rajasthan High
Court has not read down the provisions of Section 16A(9), the Nagpur
Bench of the Bombay High Court has expressed the view that it would be
permissible for the High Court to call for and peruse the grounds in
certain circumstances. The Nagpur Bench, it may be pointed out, dealt
with the provisions of Section 16 A(9), as they then existed before its
amendment by Act 14 of 1976.

217. Before; us arguments have been addressed on behalf of the

respondents challenging the validity of Section 16A(9) on the ground that
it is violative of Article 226 inasmuch as it prevents, the High Court from
effectively exercising the jurisdiction under that Article to issue writs of
habeas corpus. In my opinion, it would not be permissible in these
appeals against orders disposing of preliminary objection to decide the
question of validity of Section 16A(9). It is manifest that any decision on
the question of the validity of Section 16A(9) would result either in
upholding the validity of the provision or in; striking it down. The latter
course is out of question for it would be plainly impermissible to strike
down the provision in appeal by the State when the validity of such
provision has been upheld by the High Court. Likewise, it would be
impermissible in these appeals to record a finding that the ambit of
judicial scrutiny is greater than that found by the High Court even though
this Court on consideration of the relevant provisions comes to that
conclusion. There is no appeal before us by the detenu-respondents. This
Court in appeal by the State cannot enlarge the area of the unfavorable
decision qua the State and make its position worse compared to what it
was before the filing of the appeal. Procedural propriety in matters
relating to appeals forbids such a course. The appeals before us are
primarily against the orders of the High Court disposing of the preliminary
objections relating to the maintainability of petitions under Article 226 for
writs of habeas corpus in view of the Presidential order. The question of
extent of judicial scrutiny in the light of Section 16A should, in ray
opinion, be gone into when the whole matter is at large before us and we
are not inhibited by procedural and other constraints from going into
certain aspects which have a vital bearing. It is primarily for the High
Courts before which the matters are pending to decide the question of
area of judicial scrutiny in the light of Section 16A(9), as amended by Act
14 of 1976. A course which has the effect of bypassing the High Courts
and making this Court in appeals from orders on preliminary objection to
decide the matter even before tile matter has been considered by the
High Court in the light of Section 16A, as amended by Act 14 of 1976,,
should, in my opinion, be avoided.

218. The observations on pages 658 and 659 in the case of K. Synthetics
Ltd. v. J. K. Synthetics Mazdoor Union MANU/SC/0495/1971 :
(1972)IILLJ552SC can be of no assistance in this case because what has
been laid down there is that the respondent can support an award of an
Industrial Tribunal on a ground not adopted by the Tribunal so long as in
the final result the amount awarded is not exceeded. The observations in
that case do not warrant the enlargement of the area of unfavourable
decision against an appellant in the absence of an appeal by the
respondent. Nor does that decision justify adoption of a course which
might conceivably lead to such result. Likewise, no assistance can be
derived from Clause (3) of Article 132 of the Constitution because of the
fact that the appeal against the order of the Rajasthan High Court has
been filed in pursuance of a certificate of fitness granted under that
article. The only point on which the Rajasthan High Court has decided
against the appellant is regarding the maintainability of the petition under
Article 226. The effect of Article 132(3) would only be that it would be
permissible to assail the order of the High Court on the question of
maintainability of the petition under Article 226 not only on the ground
relating to the question of law as to the interpretation of the Constitution
mentioned in the order granting the certificate but also with the leave of
this Court on other grounds. It is, however, not the effect of Article
132(3) that if the High Court in the impugned order decides two distinct
preliminary issues, one in favour of one party and the other in favour of
the opposite party, this Court in an appeal by only one party against that
order of the High Court can also go into the correctness of the issue which
has been decided in favour of the appellant. The fact that the respondents
in these appeals have as a matter of abundant caution addressed
arguments on sub-section (9) of Section 16A, so that the submissions of
the appellants on that point may not remain unanswered, would not
justify departure from the principle that this Court cannot, in the absence
of an appeal by the respondent, adopt a course which might conceivably
enlarge the area of unfavourable decision against the appellant.

219. I am, therefore, of the view that the appropriate occasion for going
into the question of the constitutional validity of Section 16A(9) of MISA
and its impact on the power and extent of judicial scrutiny in writs of
habeas corpus would' be when the State or detenu, whosoever is
aggrieved, comes up in appeal against the final judgment in any of the
petitions pending in the High Courts. The whole matter would then be at
large before us and we would not be inhibited by procedural and other
constraints referred to above. It would not, in my opinion, be permissible
or proper to short circuit the whole thing and decide the matter by
bypassing the High Courts who are seized of the matter.

220. I may now summaries my conclusions:

(1) Article 21 cannot be considered to be the sole repository of

the right to life and personal liberty.

(2) Even in the absence of Article 21 in the Constitution, the

State has got no power to deprive a person of ins life or personal
liberty without the authority of law. That is the essential
postulate and basic assumption of the rule of law in every
civilised society.

(3) According to law in force in India before the coming into force
of the Constitution, no one could be deprived of Ms life or
personal liberty without the authority of law. Such a law
continued to be in force after the coming into force of the
Constitution, in view of Article 372 of the Constitution.

(4) Startling consequences would follow from the acceptance of

the contention that consequent upon, the issue of the Presidential
order in question no one can seek relief from courts during the
period of emergency against deprivation of life and personal
liberty. If two constructions of the Presidential order were
possible, the court should lean in favour of a view which does not
result in such consequences. The construction which does not
result in such consequences is not only possible, it is also
preeminently reasonable.
(5) In a long chain of authorities this Court has laid stress upon
the prevalence of the rule of law in the country, according to
which the executive cannot take action prejudicial to the right of
an individual without the authority of law. There is no valid
reason to depart from the rule laid down in those decisions,,
some of which were given by Benches larger than the Bench
dealing with these appeals.

(6) According to Article 21, no one can be deprived of ins life or

personal liberty except in accordance with procedure established
by law. Procedure for the exercise of power of depriving a person
of ins life or personal liberty necessarily postulates the existence
of the substantive power. When Article 21 is in force, law relating
to deprivation of life and personal liberty must provide both for
the substantive power as well as the procedure for the exercise
of such power. When right to move any court for enforcement of
right guaranteed by Article 21 is suspended, it would have the
effect of dispensing with the necessity of prescribing procedure
for the exercise of substantive power to deprive a person of ins
life or personal liberty, it cannot have the effect of permitting an
authority to deprive a person of ins life or personal liberty without
the existence of such substantive power.

(7) A Presidential order under Article 359(1) can suspend during

the period of emergency only the right to move any court for
enforcement of the fundamental rights mentioned in the Order.
Rights created by statutes being not fundamental rights can be
enforced during the period of emergency despite the Presidential
order. Obligations and liabilities flowing from statutory provisions
likewise remain unaffected by the Presidential order. Any redress
sought from a court of law on the score of breach of statutory
provisions would be outside the purview of Article 359(1) and the
Presidential order made thereunder.

(8) Article 226 under which the High Courts can issue writs of
habeas corpus is an integral part of the Constitution. No power
has been conferred upon any authority in the Constitution for
suspending the power of the High Court to issue writs in the
nature of habeas corpus during the period of emergency. Such a
result cannot be brought about by putting some particular
construction on the Presidential order in question.

(9) There is no antithesis between the power of the State to

detain a person without trial under a law of preventive detention
and the power of the court to examine the legality of such
 detention. In exercising such power the courts only ensure that
the detaining authority acts in accordance with the law providing
for preventive detention.

(10) There is no sufficient ground to interfere with the view taken

by all the nine High Courts which went into the matter that the
Presidential order dated June 27, 1975 did not affect the
maintainability of the habeas corpus petitions to question the
legality of the detention orders.

(11) The principles which should be followed by the courts in

dealing with petitions for writs of habeas corpus to challenge the
legality of detention are well-established.

(12) The appropriate occasion for this Court to go into the

constitutional validity of Section 16A(9) of MISA and its impact
on the power and extent of judicial scrutiny in writs of habeas
corpus would be when the State or a detenu, whosoever is
aggrieved, comes up in appeal against the final judgment in any
of the petitions pending in the High Courts. The whole matter
would then be at large before this Court and it would not be
inhibited by procedural and other con straits. It would not be
permissible or proper for this Court to short circuit the whole
thing and decide the matter by by-passing the High Courts who
are seized of the matter.

221. Before I part with the case, I may observe that the conscious ness
that the view expressed by me is at variance with that of the majority of
my learned brethren has not stood in the way of my ex pressing the
same. I am aware of the desirability of unanimity, if possible. Unanimity
obtained without sacrifice of conviction comments the decision to public
confidence. Unanimity which is merely formal and which is recorded at
the expense of strong conflicting views is not desirable in a court of last
resort. As observed by Chief Justice Hughes Prophets' with Honor by Alan
Earth 1974 Ed. p. 3-6 judges are not there simply to decide cases, but to
decide them as they think they should be decided, and while if may be
regrettable that they cannot always agree, it is better that their
independence should be maintained and recognized than that unanimity
should be secured through its sacrifice, A dissent in a court of last resort
to use ins words, is an appeal to the brooding spirit of the law. to the
intelligence of a future day, when a later decision may possibly correct the
error into which the dissenting judge believes the court to have been
betrayed.

222. The appeals are disposed of accordingly.

-------------------------------------------------

M. Hameedullah Beg, J.

223. The two principal questions placed before us for determination in

these appeals from decisions given by various High Courts, on certain
preliminary objections to the maintainability and hearing of Habeas
Corpus petitions, under Article 226 of our Constitution, have been stated
as follows by the Attorney General of India:

1. Whether, in view of the Presidential Order dated June 27,

1975, under Clause (1) of Article 359, any writ petition is
maintainable under Article 226, before a High Court for Habeas
Corpus to enforce the right to personal liberty of a person
detained under the Maintenance of Internal Security Act on the
ground that the order of detention or the continued detention is,
for any reason, not under or in compliance with Maintenance of
Internal Security Act ?

2. If such a petition is maintainable, what is the scope or extent

of judicial scrutiny, particularly, in view of the aforesaid
Presidential Order which covers, inter alia, Clause (5) of Article
22, and also in view of Sub-section (9) of Section 16A of the
Maintenance of Internal Security Act?

224. If the only reason on which a detention is assailed, could be that the
provisions of the Maintenance of Internal Security Act 26 of 1971
(hereinafter referred to as 'the Act') have not been complied with, there
could be little difficulty in holding, having regard to the natural and
obvious meaning of the suspension of "the right to move any Court for
the enforcement" of the fundamental right to personal liberty, protected
by Article 21 of the Constitution, that this right, with whatever it evolved
from; or embraced, could not be the basis for any claim to its
enforcement during the emergency. All that would then remain to
consider would be the exact point at which and the form in which the
order of the Court denying the petitioner an enforcement of the right
could be passed. The last part of the first question, however, also brings
into the area of discussion the case where a petitioner alleges that "for
any reason" ins detention falls completely outside the Act. Detenues
allege not merely infraction of some provision of the Act, under which a
detention is ordered, but, more often, that the detention is for extraneous
reasons falling either entirely or partially outside the Act. "Mala fides" is
almost invariably alleged presumably on the assumption that almost
everything the detenue considers either wrong or erroneous or improper
must be "mala fide".
225. Arguments addressed to us on behalf of the detenues have raised a
host of hypothetical questions, such as : What would be the position if the
order of detention, on the face of it, either falls outside the provisions of
the Act or is made mala fide ? Would a detention order, by any
Government servant without even an ostensible or purported statutory
authority to support it, not stand on the same footing as a detention by a
private person? Would remedy against detention which may be patently
illegal, without need for any real investigation into facts at all also be
barred ? Could remedy by way of a writ of Habeas Corpus against any
illegal detention by any one in this country, under any circumstances, be
held to be suspended during the emergency ? The next steps in the
argument on behalf of detenues consisted of attempts to show that there
could be no distinction in principle, between an order which is, prima
facie, ultra vires or made mala fide and one which can be shown to be
that only if the facts and circumstances surrounding a detention were fully
investigated in a Court. Processes of reasoning, based on hypothetical
cases put forward for consideration by us, by learned Counsel for the
detenus seek, by stages to so expand the area of maintainability and
investigation on claims for writs of Habeas Corpus in the High Courts that,
if we accept them, the result would be that Article 359 of the Constitution
and the Presidential orders of 1975 made under it would become entirely
meaningless and in fructuous.

226. It seems to me that the two questions set out above, could very well
be compressed into a single question : To what extent, if at all, can a,
High Court be moved to assert a right to personal liberty, by means of a
petition under Article 226 for a writ of Habeas Corpus during the
operation of the Presidential order of 27th June, 1975 ?

227. Speaking for myself, I am extremely reluctant to embark on a

consideration and decision of any "pure" question of law. In cases coming
up before Courts, no question of law can be "pure" in the sense that it has
no bearing on the facts of a particular case to which it must necessarily
be related. Neither Article 136 nor Article 226 of the Constitution is meant
for the exercise of an advisory jurisdiction. Attempts to lay down the law
in an abstract form, unrelated to the facts of particular cases, not only do
not appertain to the kind of jurisdiction exercised by this Court or by the
High Courts under the provisions mentioned above, but may result in
misapplications of the law declared by Courts to situations for which they
were not intended at all.

228. Learned Counsel for the detenus have tried to induce us to answer
many questions which may arise in purely hypothetical situations some of
which seem to me to be far removed from the realms of reality. We
cannot assume that those who exercise powers of detention are bound to
do so, as a rule, as though they were demented repots--without any
regard for law, justice, reason, or honesty of purpose, solely for achieving
objects other than those which are really meant to be served by the Act.
Both sides, however, desire that we should answer questions indicated
above on the assumption that the provisions of law contained in the Act
have been infringed, in some way, by the detaining authorities in a
particular case. They want us to indicate degrees of transgression of the
provisions, of the Act, if any, which can justify interference by the High
Courts in Habeas Corpus proceedings. As the facts of no particular case
are before us. we can only answer the questions before us with the help,
where necessary, of appropriate hypothetical examples.

229. The learned Attorney General has, very frankly and honestly,
submitted that there was no need to bestow upon actions of the detaining
authorities the protections given to them only for the duration of the
emergency proclaimed under Article 352(1) of the Constitution, if the
President did not really intend to confer certain immunities from judicial
scrutiny and interference upon detentions by executive authorities, even if
some of them were contrary to the letter of the law, so that certain over-
riding interests of national security and independence may not be
jeopardized. The Attorney General's submission is that the risks of misuse
of powers by the detaining officers and authorities, which are certainly
there, must be presumed to have been over-ridden by the higher claims
of national security which the proclamation of emergency denotes. It was
pointed out that a citizen, or other person who may have been unfairly or
illegally detained due to some unfortunate misapprehension or error, does
not loose ins remedy altogether. Only ins right to move a Court for the
enforcement of any of the rights conferred by Part III .of the Constitution
would be suspended for the time being. He could always approach higher
Governmental authorities. All of them could not be so unreasonable as to
deny redress in a case of genuine injustice.

230. The propositions thus stated appear to be so reasonable and are so

well founded, as I shall endeavour to show later, in the course of this
judgment, in the Constitutional and legal history and the case law of other
countries, during periods of emergency, from whose constitutions what
has been described as the "ancient writ of Habeas Corpus" has been
taken and transplanted into our Constitution that it may seem somewhat
surprising that their correctness should be doubted or denied at all. The
propositions have, however, not only been vehemently assailed but the
attacks upon them were sought to be supported by attempts to engraft
theories upon our Constitution which, if accepted, will destroy the basic
principle of the supremacy of the written Constitution which I attempted,
in Smt. Indira Nehru Gandhi v. Shri Raj Narain MANU/SC/0304/1975 :
[1976]2SCR347 to explain at some length.
231. If the clear and unequivocal language of Article 359(1) of our
Constitution is the bed-rock on which the Attorney General's arguments
to sustain the preliminary objections to the maintainability of Habeas
Corpus petitions during the emergency rest, learned Counsel for the
detenus have put forward theories of a nebulous natural law and a
common law which, on close scrutiny, appear to me to resolve themselves
into what, according to the notions of learned Counsel for the detenus,
the law ought to be. Strenuous attempts have been made to dress up
these notions in the impressive garb of the "Rule of Law" which evokes
the genuine and our and respectful devotion of lawyers and public spirited
citizens. But, the mere veneration of a caption, without an understanding
of what it really denoted in the past and what it means or should mean
today, is another name for obfuscation of thought.

232. Even in England, the reputed home of the Rule of Law, the rather
loose, general, and in exact meaning given to the term by Dicey to
describe and glorify certain assumedly special characteristics of the
English Constitution, have given place to more realistic, critical, and
scientific views of the "Rule of Law" and what Dicey meant by it. Sir Ivor
Jennings, in "The; Law and the Constitution" (3rd Edn. p. 296) pointed
out:

Dicey honestly tried (in The Law of the Constitution, not in ins
polemical works) to analyse, but, like most, he saw the
Constitution through ins own spectacles, and ins vision was not
exact. The growth of the new functions of the State has made
much of ins analysis irrelevant. Moreover, the argument "from
history or, what is the same thing, from the Constitution must be
used with discretion. To say that a new policy is 'unconstitutional'
is merely to say that it is contrary to tradition, and it must always
be considered whether the tradition is relevant to new
circumstances. Even if the rule of law as Dicey expounded it had
been exact, it would not be a sufficient argument to say of any
proposal, as the Committee on Ministers' Powers said on a minor
point, that it was contrary to the rule of law.

233. Those who glibly talk of the Rule of Law, as expounded by Dicey,
forget that Prof. Dicey had made a very gallant and effective (I would not
like to use here a colloquial expression, "desperate", to describe it)
attempt to repel the correctness of what he called "the dark saying" of de
Tocqueville that the largely conventional "English Constitution has no real
existence 'ellen existe point)" (See : page 22 of the Dicey's "Introduction
to the Study of the Law of the Constitution"--10th Edn.). He was at pains
to show that the Constitutional Law of England did exist. It lived and
functioned not only in the hearts and minds of Englishmen, also reflected
in Parliament, but through the force of healthy conventions and highly
disciplined habits of life and thought of the British people. These
conventions and habits had, behind them, the sanction not only of a
powerful and intelligent public opinion but also of the control by the
Houses of Parliament, wrested from the Crown in the course of instoric
constitutional struggles, over the finances of the nation. Dicey
distinguished this peculiarly British Constitutional Law from "political
ethics" which, according to him, was "mis-called Constitution Law". It was
not, he pointed out, like: International law, the "vanishing point" of law.

234. Dicey succeeded, at least so far as his statement of the Rule of Law
is concerned, in doing nothing more than indicating, under this heading,
certain common guiding principles for Courts as well as Legislators to
follow when they needed these. Hence, he said that the Rule of law and
the legal Sovereignty of Parliament were allies in England. According to
him, both these principles so operated as to always support and
strengthen each other. This idealistic rosy optimism, reflecting the Whig
tradition of minimum interference with individual freedoms and
representing the Constitutional jurisprudence of the hey-day of a laissez
faire British economic prosperity, was destined to be displaced by the
more "down to the earth" pragmatism of the Twentieth Century Britain,
attempting to meet economic difficulties and distress through socialistic
planning and to build a welfare State by making laws which appeared to
those brought up on the traditional postulates of Dicey's Rule of Law to
deny the validity of its basic assumptions.

235. The first of these assumptions or meanings was that any deprivation
of personal liberty or property must not only be for a "distinct breach of
law" but ''established in the ordinary legal manner before the ordinary
Courts of the land". He contrasted this "with every system of government
based on the exercise by persons in authority of wide, arbitrary, or
discretionary powers of constraint". He concluded, from what he regarded
as a basic feature of the British Constitution, that all modes of dispensing
justice, through specialised administrative authorities and bodies, must
necessarily be autocratic and unfair. He compared the British system with
the one under which Voltaire, in 1717, was "sent to the Bastille for a
poem which he had not written, of which he did not know the author, and
with the sentiments of which he did not agree". The second assumption of
Dicey's Rule of Law was : "Every man, whatever be his rank or condition,
is subject to the ordinary law of the realm and amenable to the
jurisdiction of the ordinary tribunals". He overlooked the not infrequent
injustice caused in England of his time, due to want of adequate remedies
against the servants of the Crown, by applications of the maxim : "The
King can do no wrong". He wrote "With us every official, from the Prime
Minister down to a constable or a collector of taxes, is under the same
responsibility for every act done without legal justification as any other
citizen". The third assumption on which Dicey's Rule of Law rested was
what he called "the predominance of the legal spirit" which he described
"as a special attribute of English Institutions". He explained:

We may say that the Constitution is pervaded by the rule of law

on the ground that the general principles of the Constitution was
for example the right to personal liberty, or the right of public
meeting) are with us the result of judicial decisions determining
the rights of private persons in particular cases brought before
the Courts; whereas under many foreign constitutions the
security (such as it is) given to the rights of individuals results, or
appears to result from the general principles of the constitution.

Dicey observed:

There is in the English Constitution an absence of these

declarations or definitions of rights so dear to foreign
constitutionalists. Such principles, moreover, as you can discover
in the English Constitution are, like all maxims established by
judicial legislation, mere generalisations drawn either from the
decisions or dicta of judges, or from statutes which, being passed
to meet special grievances, bear a close resemblance to judicial
decisions, and are in effect judgments pronounced by the High
Court of Parliament. To put what is really the same thing in a
somewhat different shape, the relation of the rights of individuals
to the principles of the Constitution is not quite the same in
countries like Belgium, where the Constitution is the result of a
legislative act, as' it is in England, where the Constitution itself is
based upon legal decisions.

236. Thus, Dicey depicted the British Parliament, while performing even
its legislative functions, as if it was a Court following the path shown by
judges filled with the spirit of law and with meticulous concern for all the
canons of justice. He concluded : "Our Constitution, in short, is a Judge-
made Constitution and it bears on its face all the features, good and bad,
of judge made law".

237. Dicey thought that the difference between the unwritten British
Constitution and a written Constitution, such as that of Belgium, was not
merely a formal one, but revealed entirely differing approaches to basic
freedoms. He observed:

The matter to be noted is, that where the right to individual

freedom is a result deduced from the principles of the
 constitution, the idea readily occurs that the right is capable of
being suspended or taken away. Where, on the other hand, the
right to individual freedom is part of the Constitution because it is
inherent in the ordinary law of the land, the right is one which
can hardly be destroyed without a thorough revolution in the
institutions and manners of the nation.

238. After making the distinction mentioned above, Dicey deals with "the
so-called suspension of the Habeas Corpus Act". He said that it bears "a
certain similarity to what is called in foreign countries 'suspending the
constitutional guarantees'".. He euphemistically, explained:

But, after all, a statute suspending the Habeas Corpus Act falls
very far short of what its popular name seems to imply; and
though a serious measure enough, is not, in reality, more than a
suspension of one particular remedy for the. protection of
personal freedom. The Habeas Corpus Act may be suspended and
yet Englishmen may enjoy almost all the rights of citizens. The
Constitution being based on the rule of law, the suspension of the
constitution, as far as such a thing can be conceived possible,
would mean with us nothing less than a revolution.

239. If Dicey, bewitched by the beauties of an unwritten British

Constitution could have been shocked by any modern transgressions of
the basic principles of his "Rule of Law"--in the Introduction to later
editions of his book, Dicey modified his earlier views, to some extent,
about the nature and purposes of "Droit Administratif", accepted the
inevitability of change, and noticed the logical consequences of what he
himself had described, in his "Law and Opinion in England", as the
Collectivist or Socialistic trend--he would have been even more shocked
by the proposition that the cherished principles of his Rule of Law could
override the statute law which the British Parliament could make and
unmake in the exercise, of what Dicey called the "Sovereignty of
Parliament". The truth is that Dicey did not, at first, visualise the
possibility of any conflict between the Rule of Law and the principles of
Parliamentary Sovereignty in England. And, correctly understood and
applied, there should not be serious conflict between them. But, are
principles always correctly understood and applied ?

240. Jennings critically commented upon Dicey's views (See : "The Law
and the Constitution" 3rd Edn. p. 294) as follows:

The rules which in foreign countries naturally form part of a

constitutional code "mostly do not exist in England, for the
recognised (or legal) supremacy of Parliament prevents any
 fundamental distribution of powers and forbids the existence of
fundamental rights. The supremacy of Parliament is the
Constitution. It, is recognised as fundamental law just as a
written Constitution is recognised as fundamental law. Various
Public authorities--the Crown, the Houses of Parliament, the
courts, the administrative authorities--have powers and duties.
Most of them are determined by statute. Some are traditional,
and so are 'determined' by the common law. The powers of
administrative authorities in respect of 'fundamental liberties' are
mainly contained in statutes. But even if they were not, I do not
understand how it is correct to say that "the rules are the
consequence of the rights of individuals and not their source. The
powers of the Crown and of other administrative authorities are
limited by the rights of individuals; or the rights of individuals are
limited by the powers of the administration. Both statements are
correct; and both powers and rights come from the law--from the
rules.

241. Thus, Jennings pointed out that what was material was the existence
of rules, as a part of Constitutional law, and not their sources or forms.
He tried to show that the basic rule being the supremacy of Statutory law
that was "The Constitution" in Britain. No other rule could compete with it
or stand in its way or be a substitute for it. Dicey, on the other hand,
believed that the difference in sources and forms of rules made a great
difference in approach and outlook. But, Dicey also treated the judge-
made Rule of Law and the rights "guaranteed" by a written Constitution
as alternatives or different modes of protecting same species of rights. He
never dreamt of looking upon them both as simultaneously existing and
available under a written Constitution in addition to what such a
Constitution contained.

242. Dicey, indicated the basic distinction between the Constitutional

position in England,, with an unwritten Constitution where the supremacy
of Parliament prevailed, and that in the United States of America, with a
written Constitution which was supreme. But, despite the differences in
the logical consequences of an unwritten constitution, in a country so
largely governed by its conventions and disciplined habits of life and
thought as Dicey's England, and those of the written Constitution of the
U.S.A.., one common feature, shared by both English and American
systems, was the large amount of judicial Constitutional law making
which took place in both countries.

243. In Britain, although the Parliament is the supreme law-giver, yet, as

Dicey pointed out, there was, out of respect for the judicial function and
the Rule of Law, an acceptance of judge made law as the constitutional
law of the land which the Parliament could alter, whenever it liked, but did
not think of altering presumably because it served very well, the needs of
British people who took pride in their judge-made law. Of course, if
Parliament did make a law on any subject-- and it has made some laws
on Constitutional matters also--the Courts could not think of questioning
the validity of the law so made.

244. In America, not only was the doctrine of judicial review of legislation,
established by Marshall, C. J., in Marbury v. Madison (1803)-(1 Cranch
137), but the "due process" clauses, introduced by the 5th amendment
(1791) and by the 14th amendment (1868) of the American Constitution,
became the most prolific sources of judicial law-making. They gave to the
American Courts an amplitude of power to indulge in what is called
"judicial legislation" which our Constitution makers, after considerable
debate, deliberately eschewed by using the expression "procedure
established by law" instead of the "due process of law". Willis, adverting
to the very skeletal character of the American Constitution, said:

Our original Constitution was not an anchor but a rudder. The

Constitution of one period has not been the Constitution of
another period. As one period has succeeded another, the
Constitution has become larger and larger.

245. In A. K. Gopalan v. The State of Madras MANU/SC/0012/1950 :

1950CriLJ1383 , the earliest case in which a comprehensive discussion of
fundamental guaranteed freedoms in our Constitution took place, Kania,
C. J., after referring to observations of Munro, of James Russell Lowell, of
Willis, and of Cooley, on the American Constitution, noted about the
nature of our Constitution (at p. 109):

The Constitution itself provides in minute details the legislative

powers of the Parliament and the State Legislatures. The same
feature is noticeable in the case of the judiciary, finance, trade,
commerce and services. It is thus quite detailed and the whole of
it has to be read with the same sanctity, without giving undue
weight to Part III or Article 246, except to the extent one is
legitimately and clearly limited by the other.

246. The position in this country is clearly one in which the fundamental
law found in the Constitution is paramount. The Constitution provides the
test for the validity of all other laws. It seeks to determine the spheres of
executive and legislative and judicial powers with meticulous care and
precision. The judicial function, though wider in range when interpreting
or applying other Articles of the Constitution, particularly Articles 14 and
19, the enforcement of which is also suspended during the current
emergency, is especially constricted by the elaborate provisions of Articles
21 and 22, which deal with personal liberty and preventive detention. The
wider the sweep of the provisions of Article 21 and 22 the more drastic
must be the effect of suspending their enforcement. After all, suspension
does not and cannot mean retention under a disguise.

247. The only Rule of Law which can be recognised by Courts of our
country is what is deducible from our Constitution itself. The Constitution
is, for us, the embodiment of the highest "positive law" as well as the
reflection of all the rules of natural or ethical or common law lying behind
it which can be recognised by Courts. It seems to me to be legally quite
impossible to successfully appeal to some spirit of the Constitution or to
any law anterior to or supposed to lie behind the Constitution to frustrate
the objects of the express provisions of the Constitution. I am not aware
of any Rule of Law or reason which could enable us to do that. What we
are asked to do seems nothing short of building some imaginary parts of
a Constitution, supposed to lie behind our existing Constitution, which
could take the place of those parts of our Constitution whose enforcement
is suspended and then to enforce the substitutes.
And, we were asked by some learned Counsel, though not by all, to
perform this ambitious task of judicial Constitution making without even
using the crutches of implied imperatives of our Constitutional provisions
as though we had some plenary legislative Constituent powers.
Fortunately, Judges in this country have no such powers. And, those who
are meant to so function as to keep the other authorities and organs of
State within the limits of their powers cannot themselves usurp powers
they do not possess. That is the path of descent into the arena of political
controversy which is so damaging for the preservation of the impartiality
and prestige of the judicial function. We cannot, therefore, satisfy those
who may feel the urge, as Omar Khayyam did "to shatter" what they
regard as "this sorry scheme of things entire" and to "remould" it nearer
their "heart's desire". I think we must make it clear that the spirit of law
or the Rule of Law, which we recognise, cannot, however ominously
around like some disembodied ghost serving as a substitute for the living
Constitution we actually have. It has to be found always within and
operating in harmony with and never outside or in conflict with what our
Constitution enjoins. All that we can do is to faithfully explain what the
Constitution and its spirit mean. We cannot alter or twist these.

248. The distinction made above between law as it exists and as it has to
be recognised and enforced by the State's judicial organs, and "the law",
if we may call it that at all, which could only constitute some rules of
ethics but could not been forced at all, whatever may be its moral worth,
was thus stated by John Codman Hurd in ins "Law of Freedom and
Bondage in the United States" (Negro Universities Press, New York (Vol. I,
at p. 3):

Now, jurisprudence is taken to be the science of a rule not merely

existing, but one which is actually operative or enforced in or by
the will of society or the state. The Science of what rule ought to
be made operative by the will of the state is a different thing; it
is a science of rules regarded only as existing, whether operative
in civil society--that is enforced--or not.

A rule made operative by the authority of society, or of the state,

is a rule identified with the expressed will of society or of the
State. The will of the state, indicated in some form of expression,
is the law, the subject of jurisprudence, and no natural rule which
may exist, forms a part of the law unless identified with the will
of the state so indicated. What the state wills is the conterminous
measure of law, no preexisting rule is the measure of that will.

249. John Codman Hurd went on to point out that judicial authorities
constituted by the State can only carry out the mandates of the positive
law which, for purposes of enforcement, must be deemed to embody all
the pre-existing enforceable natural and ethical values.

250. Enforceability, as an attribute of a legal right, and the power of the

judicial organs of the State to enforce the right, are exclusively for the
State, as the legal instrument of Society, to confer or take away in the
legally authorised manner. It follows from these basic premises of our
Constitutional jurisprudence that Courts cannot, during a constitutionally
enjoined period of suspension of the enforceability of Fundamental Rights
through Courts, enforce what may even be a "fundamental right" sought
to be protected by Part III of the Constitution. The Attorney General has,
very fairly and rightly, repeatedly pointed out that no substantive right,
whether declared fundamental or not, except the procedural rights
converted into substantive ones by Article 32, could be suspended. Even
the enforcement in general, of all such rights is not suspended. Only the
enforcement of specified rights through Courts is suspended for the time
being.

251. The enforceability of a right by a constitutionally appointed judicial

organ has necessarily to depend upon the fulfilment of two conditions :
firstly, its recognition by or under the Constitution as a right; and,
secondly, possession of the power of its enforcement by the judicial
organs. Now, if a right is established, on facts, as a right, it will certainly
satisfy the first condition. But, if the right is unenforceable, because the
power-of its enforcement by Courts is constitutionally suspended or
inhibited, for the duration of the emergency, its mere recognition or
declaration by Courts, either as a right or as a fundamental right, could
not possibly help a petitioner to secure ins personal liberty. Article 226 of
the Constitution is not meant for futile and unenforceable declarations of
right. The whole purpose of a writ of Habeas Corpus is to enforce a right
to personal freedom after the declaration of a detention as illegal when it
is so found upon investigation.

252. It may be that many moral and natural obligations exist outside the
Constitution and even outside any positive law--this is not denied by the
learned Attorney General at all--but, their existence is not really relevant
for purposes of petitions for writs of Habeas Corpus which lie only to
enforce legally enforceable rights. Neither the existence nor the
possibilities of denials of any rights by the detaining officers of the State,
due to fragilities of human nature and errors of judgment, are denied by
the Attorney General. All that is denied is the correctness of the assertion
that they are enforceable, during the period of emergency, through
Courts, if they fall within the purview of rights whose enforcement is
suspended.

253. The result of the few very general observations made above by me,
before examining, in greater depth, any of the very large number of
connected questions and side issues raised--I doubt whether it is
necessary or of much use, in view of my opinion on the preliminary issue
of enforceability, to consider all of them even if it were possible for me to
do so--may be summarised as follows:

Dicey's Rule of Law, with special meanings given to it, was meant
to prove the existence and peculiarities of the unmodified English
Constitutional Law. According to Dicey himself, these features
either did not exist elsewhere or were the very objectives of
.provisions of written Constitutions of other countries. On Dicey's
very exposition, no ordinary Judge-made law or common law
could survive in opposition to statutory law in England, or, in
conflict with a written Constitution where there was one.
Enforceability of rights, whether they are constitutional or
common law or statutory, in constitutionally prescribed ways by
constitutionally appointed judicial organs, is governed solely by
the terms of the written instrument in a Constitution such as
ours. The scope for judicial law making on the subject of
enforcement of the right to personal freedom was deliberately
restricted by our Constitution makers. In any case, it is difficult to
see any such scope when "enforcement" itself is suspended. All
we can do is to determine the effect of this suspension. We have
now to consider in greater detail: What is it the enforcement of
 which is suspended and what, if anything,, remains to be
enforced ?

254. In this country, the procedure for the deprivation as well as

enforcement of a right to personal freedom is governed partly by the
Constitution and partly by ordinarily statutes. Both fall within the purview
of "procedure". Article 21 of the Constitution guarantees, though the
guarantee is negatively framed, that "no person shall be deprived of ins
life or personal liberty except according to procedure established by law".
If an enforcement of this negatively framed right is suspended, a
deprivation contrary to the prescribed procedure is not legalised. The
suspension of enforcement does not either authorise or direct any
authority to violate the procedure. It has to be clearly understood that
what is suspended is really the procedure for the enforcement of a right
through Courts which could be said to flow from the infringement of a
statutory procedure. If the enforcement of a right to be free, resulting
derivatively from both the Constitutional and statutory provisions, based
on an infraction of the procedure, which is statutory in cases of preventive
detention, is suspended, it seems to me to be impossible to lay down that
it becomes enforceable when that part of the procedure which is
mandatory is violated but remains unenforceable so long as the part of
the procedure infringed is directory. Such a view would, in my opinion,
introduced a distinction which is neither warranted by the language of
Article 359 of the Constitution nor by that of the Presidential Orders of
1975. If the claim to assert the right is one based on violation of
procedure, the degree of violation may affect the question whether the
right to be free is established at all, but, it should not, logically speaking,
affect the result where the enforcement of the right, even in a case in
which it has become apparent, is suspended.

255. The question, however, which has been most vehemently argued is :
Does Article 21 exhaust every kind of protection given to rights to
personal freedom ? Another way in which this question was put is : Is
Article 21 of the Constitution "the sole repository" of the substantive as
well as procedural rights embraced by the expression "personal liberty" ?
One of the contentions before us was that Article 21 does not go beyond
the procedural protection to persons who may be deprived of personal
liberty.

256. Mr. Jethmalani, learned Counsel appearing for one of the detenues,
contended that personal freedom was a by-product of the removal of
constraints or hindrances to the positive freedom of action of the
individual. The contention seemed to be that procedure for deprivation of
personal liberty being one of the ways of imposing positive constraints,
the removal of a negative procedural protection could not dispense with
the necessity to establish a right of the detaining authority under some
positive or statutory law to deprive a person detained of ins liberty
whether the authority concerned followed the right procedure or not in
doing so. The argument is that proof of a just and reasonable cause,
falling within the objects of the Act so as to create a liability to be
detained, must precede the adoption of any procedure to detain a person
under the Act. A "satisfaction" that one of the grounds of detention,
prescribed by Section 3 of the Act, is there, was thus said to be a
"condition precedent" to the exercise of jurisdiction to detain. This
argument obviously proceeded on a restricted meaning given to the
"procedure established by law". It is very difficult to see why the
satisfaction, required by Section 3 of the Act, is not really part of
"procedure established by law".

257. There is, however, an even more formidable difficulty in the way of
this argument. If, as it is undeniable, the procedure under Article 226 is
the direct procedural protection, which is suspended by the terms of the
Presidential Order, read with Article 359, Article 226 will not be available
to the detenue at all, for the time being, for showing absence of the
required "satisfaction", as a condition precedent to a valid detention order
under Section 3 of the Act. If the "right to move any Court" can be
suspended-- Article 359 is very clear on the point--there remains no right,
for the time being, to an inquiry into conditions which may enable a party
to secure release in assertion of rights guaranteed either by Article 21 or
by other Articles whose "enforcement" is suspended. Indeed, the clear
object of such a suspension seems to me to be that Courts should not
undertake inquiries into the violations of the alleged right.

258. If the fundamental rights in Part III of the Constitution are not
suspended, as they obviously are not, but only their enforcement can be
and is suspended what is really affected is the power conferred on Courts
by Articles 32 and 226 of the Constitution. The power of the Courts is the
direct and effective protection of the rights sought to be secured indirectly
by Article 21, and perhaps less indirectly, by some other Articles and
laws. Indeed, it is the basic protection because other protections operate
through it and depend on it. If this is curtailed temporarily, the other
affected protections become automatically inoperative or ineffective so far
as Courts are concerned.

259. It is no answer to say that the Constitutional power of High Courts

cannot be affected by a Presidential order under Article 359 which is as
much a part of the Constitution as Article 226. Both Articles were there
from the commencement of the Constitution. 1 do not see how it can be
reasonably urged that our Constitution makers did not visualise and
intend that the Presidential order under Article 359 must, for the duration
of the emergency, necessarily limit the powers of High Courts under
Article 226 albeit indirectly by suspending rights to enforcement of
fundamental rights.

260. It is also not possible for a detenue to fall back upon the last part of
Article 226 of the Constitution which enables the use of powers given by
this Article "for any other purpose". Sq long as that purpose is
enforcement of a right which is covered by Articles 14 or 19 or 21 or 22
either separately or conjointly, as the enforcement of each of these is now
suspended, the inhibition will be there. Moreover, we have no case before
us in which a detenu asks for an order for any purpose other than the one
which can only be served by the issue of a writ of Habeas Corpus. Each
detenu asks for that relief and for no other kind of writ or order.
therefore, there is no need to consider "any other purpose".

261. It is true that some of the learned Counsel for the detenus have
strongly relied upon "any other purpose", occurring at the end of Article
226, for enabling the High Court to undertake an investigation suo motu
into the question whether the executive is performing its duties. Other
Counsel have submitted that such an enquiry suo motu can be
undertaken by this Court or by a High Court in exercise of powers to issue
writs of Habeas Corpus quite apart from the enforcement of the right of a
detenu to any writ or order. As I have indicated earlier, I am not prepared
to answer purely hypothetical questions, except within certain limits, that
is to say, only so far as it is necessary for the purposes of illustrating my
point of view. I do not think that the powers of Courts remain unaffected
by the suspension of rights or locus standi of detenus. A Court cannot, in
exercise of any supposed • inherent or implied or unspecified power,
purport to enforce or in substance enforce a right the enforcement of
which is suspended. To permit such circumvention of the suspension is to
authorise doing indirectly what law does not allow to be done directly.
Assuming, for purposes of argument, that there is some unspecified
residue of judicial power in Courts of Record in this country, without
deciding what it could be, as that question does not really arise in cases
before us, there must be undeniable facts and circumstances of some
very grave, extraordinary, and exceptional character to justify the use of
such powers, if they exist at all, either by this Court or by the High
Courts. So long as the powers of Government are exercised by the chosen
representatives of the people, their exercise is presumed to be of the
people and for the people. It has to be borne in mind that the validity of
the declaration of emergency under Article 352 has neither been nor can
it be constitutionally challenged in view of Article 352(5) of the
Constitution. And, the validity of Presidential Orders of 1975 under Article
359 has not been questioned.
262. So far, I have only indicated the nature of the problems before us
and my general approach to them. Before specifically answering
questions, stated at the outset, I will deal, as briefly as possible, under
the following Six main heads, with such of the very large number of
points raised and authorities cited before us as appear to me to be really
necessary for answering the questions calling for our decision:

(A) "Rights conferred by Part III" of our Constitution from the

point of view of Personal Freedom.

(B) Power to issue writs of Habeaus Corpus and other powers of

High Courts under article 226 of the constitution.

(C) The objects of the Maintenance of Internal Security Act ('the

Act') and the amendments of it.

(D) The purpose and meaning of emergency provisions,

particularly Article 359 of our Constitution.

(E) The effect of the Presidential orders, particularly the order of

27th June, 1975, on the rights of Detenus.

(F) The Rule of Law, as found in our Constitution, and how it

operates during the emergency.

(A) "Rights conferred by Part III" from the point of view of personal
freedom.

263. It is somewhat difficult to reconcile the language of ^a purported

conferment of rights upon themselves by citizens of India with their
political sovereignty. The language of the preamble to the Constitution
recites that it is they who were establishing the legally Sovereign
Democratic Republic with the objects given there. Of course, some rights
are "conferred" even on non-citizens, but that does not remove the
semantic difficulty which gave rise to some argument before us. It seems
to me that if, as this Court has already explained earlier (e.g. by me in
Shrimati Indira Nehru Gandhi's case (supra), the Constitution, given unto
themselves by the people, is legally supreme, it will not be difficult to
assign its proper meaning to the term "conferred". I do not find the
theory unacceptable that there was a notional surrender by the people of
India of control over their several or individual rights to a sovereign
Republic by means of a legally supreme Constitution to which we owe
allegiance. It only means that we recognise that the Constitution is
supreme and can confer rights and powers. We have to look to it alone
and not outside it for finding out the manner in which and the limits
subject to which individual citizens can exercise their separate freedoms.
There has to be necessarily, as a result of such a process of Constitution
making, a notional surrender of individual freedom so as to convert the
possibility of "licence" to all, which ends in the exploitation and
oppression of the many weak by the few strong, into the actuality of a
freedom for all regulated by law or under the law applicable to all. This
seems to me to be a satisfactory explanation of the language of
conferment used with reference to rights.

264. Apart from the explanation given above, of the language of

conferment, the meaning of placing some rights in Part III, whatever be
the language in which this was done, is surely to select certain rights as
most essential for ensuring the fulness of lives of citizens.

The whole object of guaranteed fundamental rights is to make those basic

aspects of human freedom, embothed in fundamental rights, more secure
than others not so selected. In thus recognising and declaring certain
basic aspects; of rights as fundamental by the Constitution of the country,
the purpose was to protect them against undue encroachments upon
them, by the legislative, or executive, and, sometimes even judicial (e.g.
Article 20) organs of the State. The encroachments must remain within
permissible limits and must take place only in prescribed modes. The
intention could never be to preserve something concurrently in the field of
Natural Law or Common Law. It was to exclude all other control or to
make the Constitution the sole repository of ultimate control over those
aspects of human freedom which were guaranteed there.

265. I have already referred to Dicey's attempt to show that one of the
meanings of the Rule of Law in England was that the law made by the
ordinary Courts served purposes sought to be achieved in other countries
by means of written Constitutions. This meant that one of the two
systems governs the whole field of fundamental rights but not both. This
very idea is thus put by Keir & Lawson in "Cases in Constitutional Law
(5th Edn. p. 11) :"

The judges seem to have, in their minds an ideal constitution,

comprising those fundamental rules of common law which seem
essential to the liberties of the subject and the proper
government of the country. These rules cannot be repealed but
by direct and unequivocal enactment. In the absence of express
words or necessary intendment, statutes will be applied subject
to them. They do not override the statute, but are treated, as it
were, as implied terms of the statute. Here may be found many
of those fundamental rights of man which are directly and
absolutely safeguarded in the American Constitution or the
Declaration des droits de I homme.
266. In the passage quoted above, Rules of Natural Justice, which are
impliedly read into statutes from the nature of functions imposed upon
statutory authorities or bodies, are placed on the same footing as
"fundamental fights of men which are directly and absolutely
safeguarded" by written Constitutions. There is, however, a distinction
between these two types of basic rights. The implied rules of natural
justice do not, as has been repeatedly pointed put by us, over-ride the
express terms of a statute. They are only implied because- the functions
which the statute imposes are presumed to be meant to the exercised in
accordance with these rules. Hence, they are treated as though they were
parts of enacted law. This Court has repeatedly applied this principle (see
: e.g. State of Orissa v. Dr. (Miss) Binapani Dei and Ors.
MANU/SC/0332/1967 : (1967)IILLJ266SC

267. The principles of natural justice which are so implied must always
hang, if one may so put it, on pegs of statutory provisions or necessarily
follows from them. They can also be said sometimes to be implied as
necessary parts of the protection of equality and equal protection of laws
conferred by Article 14 of the Constitution where one of the pillars of
Dicey's principles of the Rule of Law is found embodied. Sometimes, they
may be implied and read into legislation dealing with rights protected by
Article 19 of the Constitution. They could, at times, be so implied because
restrictions on rights conferred by Article 19 of the Constitution have to
be reasonable.
Statutory provisions creating certain types of functions may become
unreasonable, and, therefore, void unless rules of natural justice were
impliedly annexed to them. And, the well known method of construction is
: "ut res magis valeat guam pereat"--to prefer the construction which
upholds rather than the one which invalidates. Thus, rules of natural
justice, even when they are read into statutory provisions, have no
independent existence. They are annexed to statutory duties or
fundamental rights so long as they are not expressly excluded. Their
express exclusion by statute may, when the enforcement of fundamental
rights is not suspended, affect the validity of a statute: But, that is so
because of the requirements of Articles 14 and 19 of the Constitution and
not because they are outside the Constitution altogether.

268. It is also very difficult for me to understand what is meant by such

"Common Law" rights as could co-exist and compete with constitutional
provisions or take their place when the constitutional provisions become
unenforceable or temporarily inoperative. The whole concept of such
alleged Common Law is based on an utter misconception of what
"Common Law" means. The origin of Common Law in England is to be
found in the work done by the King's Judges, who, through their judicial
pronouncements, gave to the people of that country a law common to the
whole country in the place of the peculiar or conflicting local customs. Let
me quote here from a recent book by Prof. George W. Keeton on "English
Law--The Judicial Contribution" (at p. 68-69), about what Judges
appointed by Henry the II of Anjou did:

It is in his reign that something recognisable as a Common Law

begins to emerge. It is an amalgam of Anglo-Saxon and Danish
customs and Norman laws governing military tenures, both of
which are about to be transformed by several mighty agencies--
the ever-expanding body of original writs, of which Glanville
wrote; the assizes which Henry introduced; and finally, by the
activities of his judges, whether at Westminster or on Circuit. It is
significant that although for some centuries to come, English law
was to remain remarkably rich in local customs, we no longer
hear, after Henry's reign, of the laws of Mercia, Wessex and
Northum-bria, but of a Common Law of England--that is to say,
the law of the king's courts, about which treatises of the calibre
of Bracton and Fleta would be written almost exactly a century
later, and as the concluding words of Pollock and Maitland's great
work remind us, they and their judicial colleagues were building,
not for England alone but for king-less common-wealths on the
other shore of the Atlantic Ocean'--and now, one can perhaps
add, for many other commonwealths, too. This we owe
ultimately, not to a Norman Conqueror, nor even to a
distinguished line of Saxon , kings, but to a bow-legged and
unprepossessing prince of Anjou, of restless energy and great
constancy of purpose who built, perhaps, a good deal better than
even he knew.

269. Such were the origins of the Common Law in England. It is true that
Common Law did try to dig its tentacles into Constitutional Law as well.
Chief Justice Coke not only denied to King James the 1st the power to
administer justice directly and personally, but he went so far as to claim
for the King's Courts the power to proclaim an Act of Parliament invalid, in
Dr. Bonham's case, if it sought to violate a principle of natural law. Such
claims, however, were soon abandoned by Common Law Courts.

270 It is interesting to recall that, after ins dismissal, by King James the
1st, in 1616, Sir Edward Coke entered politics and became a Member of
the House of Commons in Liskeard. He led a group which resisted Royal
claims. He was the principal advocate of the Petition of Rights which
Parliament compelled a reluctant King of England to accept in 1628.
Courts of justice, unable to withstand Royal onslaughts on their authority,
joined hands with Parliament and laid down some of the rules which,
according to Dicey, gave the Rule of Law to England. Thus, the judge-
made fundamental rights, which Parliament would not disturb, out of
innate respect for them, existed, legally speaking, because Parliament,
representing the people, wanted them. They could not compete with or
obstruct the legal authority of Parliament. Coke's doctrine, however, found
expression in a Constitution which enabled judges to test the validity of
even legislation with reference to fundamental rights. This is also one of
the primary functions of Chapter III of our own Constitution. Another
function of provisions of this chapter is to test the validity of the State's
executive action.

271. So far as Article 21 of the Constitution is concerned, it is abundantly

clear that it protects the lives and liberties of citizens primarily from
legally unwarranted executive action. It secures rights to 'procedure
established by law'. If that procedure is to be established by statute law,
as it is meant to be, this particular protection could not, on the face of it,
be intended to operate as a restriction upon legislative power to lay down
procedure although other Articles affecting legislation on personal
freedom might. Article 21 was only meant, on the face of it, to keep the
exercise of executive power, in ordering deprivations of life or liberty,
within the bounds of power prescribed by procedure established by
legislation.

The meaning of the expression "procedure established by law" came in for

discussion at considerable length, by this Court, in A. K. Gopalan's case
(supra). The majority of the learned Judges clearly held there that it
furnishes the guarantee of "Lex", which is equated with statute law only,
and not of "Jus" or a judicial concept of what procedural law ought really
to be. The whole idea, in using this expression, taken deliberately from
the Japanese Constitution on the advice, amongst others, of Mr. Justice
Felix Frankfurter of the American Supreme Court, was to exclude judicial
interference with executive action in dealing with lives and liberties of
citizens and others living in our country on any ground other than that it
is contrary to procedure actually prescribed by law, which, according to
the majority view in Gopalan's case, meant only statute law. The majority
view was based on the reason, amongst others, that, according to well
established canons of statutory construction, the express terms of "Lex"
(assuming, of course, that the "Lex" is otherwise valid), prescribing
procedure, will exclude "Jus" or judicial notions of "due process" or what
the procedure ought to be.

272. Appeals to concepts of "Jus" or a just procedure were made in

Gopalan's case (supra), as implied by Article 21, in an attempted
application of "Jus" for testing the validity of statutory provisions.
Although, no such question of validity of the procedure established by the
Act in ordering actual deprivations of personal liberty has arisen before
us, yet, the argument before us is that we should allow use of notions of
"Jus" and the doctrine of ultra vires by the various High Courts in judging
the correctness of applications of the established procedure by executive
authorities to each case at a time when the Presidential Order of 27th
June 1975 precludes the use of Article 21 by Courts for enforcing a right
to personal liberty. therefore, the question which arises here is whether
"Jus" held by this Court, in Gopalan's case, to have been deliberately
excluded from the purview of procedure established by law", can be
introduced by Courts, through a back door, as though it was an
independent right guaranteed by Chapter III or by any other Part of the
Constitution. I am quite unable to accede to the suggestion that this could
be done.

273. We have been referred to the following passage in R. C. Cooper v,

Union of India MANU/SC/0011/1970 : [1970]3SCR530 , to substantiate
the submission that the decision of this Court in Gopalan's case (supra),
on the question mentioned above, no longer holds the field:

We have found it necessary to examine the rationale of the two

lines of authority and determine whether there is anything in the
Constitution which justifies this apparently inconsistent
development of the law. In our judgment, the assumption in A.K.
Gopalan's case that certain Articles in the Constitution exclusively
deal with specific matters and ' in determining whether there is
infringement of the individual's guaranteed rights, the object and
the form of the State action alone need be considered, and effect
of the laws on fundamental rights of the individuals in general will
be ignored cannot be accepted as correct. We hold that the
validity 'of law' which authorises deprivation of property and 'a
law' which authorises compulsory acquisition of property for a
public purpose must be adjudged by the application of the same
tests. A citizen may claim in an appropriate .case that the law
authorising compulsory acquisition of property imposes fetters
upon ins right to hold property which are not reasonable
restrictions in the interests of the general public.

274. It seems to me that Gopalan's case (supra) was merely cited, in

Cooper's case (supra), for illustrating a line of reasoning which was held
to be incorrect in determining the validity of "law" for the acquisition of
property solely with reference to the provisions of Article 31. The question
under consideration in that case was whether Articles 19(1)(f) and 31(2)
are mutually exclusive. Even if, on the strength of what was held in
Cooper's case (supra), we hold that the effects of deprivation upon rights
outside Article 21 have also to be considered in deciding upon the validity
of "Lex", and that the line of reasoning in Gopalan's case (supra), that the
validity of a law relating to preventive detention must be judged solely
with reference to the provisions of Article 21 of the Constitution, is
incorrect, in view of the opinion of the majority of learned Judges of this
Court in Cooper's case (supra), it seem to me that this is hardly relevant
in considering whether any claims based on natural law or common law
can be enforced. There is no challenge before us based on Article 19, to
any provision of the Act. Moreover, now that the enforcement of Article 19
is also suspended, the question whether a law dealing with preventive
detention may directly or indirectly infringe other rights contained in
Article 19 of the Constitution is not relevant at all here for this additional
reason.

275. Mr. Shanti Bhushan, appearing for some of the detenu, seems to
have seriously misunderstood the meaning of the majority as well as
minority views of Judges of this Court in His Holiness Kesava-nanda
Bharati Sripadagalavaru v. State of Kerala [1973] Supp. S. C. R. 1 918
when he submitted that, as the majority view there was not that natural
rights do not exist, these rights could be enforced in place of the
suspended guaranteed fundamental rights. One learned Judge after
another in that case emphatically rejected the submission that any theory
of natural rights could impliedly limit powers of Constitutional amendment
contained in Article 368 of the Constitution. In doing so, none of us held
that any natural rights could impliedly become legally enforceable rights.

276. Dwivedi, J., in Kesavananda Bharti's case (supra) said about what
could be characterised as a far more "unruly horse" than public policy (at
p. 918):

Natural Law has been a sort of religion with many political and
constitutional thinkers. But it has never believed in a single
Godhead. It has a perpetually growing pantheon. Look at the
pantheon, and you will observe there : 'State of Nature'. 'Nature
of Man'. 'Reason', 'Cod', 'Equality', 'Liberty', 'Property', 'Laissez
Faire', 'Sovereignty', 'Democracy', 'Civilised Decency',
'Fundamental Conceptions of Justice' and even 'War'.

The religion of Natural Law has its illustrious Priestly Heads such
as Chrysippus, Cicero, Seneca, St. Thomas Acquinas, Grotius,
Hobbes, Locke, Paine, Hamilton, Jefferson and Trietschke. The
pantheon is not a heaven of peace. Its gods are locked in
constant internecine conflict.

Natural Law has been a highly subjective and fighting faith. Its
bewildering variety of mutually warring gods has provoked Kelson
to remark : "Outstanding representatives of the natural law
 doctrine have proclaimed in the name of Justice or Natural Law
principles which not only contradict one another, but are in direct
opposition to many positive legal orders. There is no positive law
that is not in conflict with one or the other of these principles;
and it is not possible to ascertain which of them has a better
claim to be recognised than any other. All these principles
represent the highly subjective value judgments of their various
authors about what they consider to be just or natural.

277. If the concepts of natural law are too conflicting to make them a
secure foundation for any alleged "right", sought to be derived from it,
until it is accepted and recognised by a positive law, notions of what
Common Law is and what it means, if anything, in this country, are not
less hazy and unsettled.

278. Mr. Setalvad, in ins Hamlyn Memorial Lectures on "Common Law in

India", treated the whole body of general or common statute law and
Constitutional Law of this country as though they represented a
codification of the Common Law of England. If this view is correct,
Common Law could not be found outside the written Constitution and
statute law although English Common Law could perhaps be used to
explain and interpret our statutory provisions where it was possible to do
so due to some uncertainty.

279. Sometimes, Judges have spoken of the principles of "Justice, equity,

and good conscience" (See : Satish Chandra Chakramurthi v. Ram Dayal
De I. L. R. 48 Cal. 388 Waghela Raj Sanji v. Sheik Mashuddin and Ors. 14
Indian Appeals p. 89 @ 96 Baboo S/o Thakur Dhodi v. Mst. Subanshi W/o
Mangal MANU/NA/0024/1942, as sources of "Common Law" in this;
country. One with some knowledge of development of law in England will
distinguish the two broad streams of , law there : one supposed to be
derived from the customs of the people, but, actually based on judicial
concepts of what custom is or should properly be; and. another flowing
from the Court of the Chancellor, the "Keeper of the King's Conscience",
who used to be approached when plain demands of justice failed to be
met or caught in the meshes of Common Law, or, were actually defeated
by some statute law which was being misused. The two streams, one of
Common Law and another of Equity, were "mixed" or "fused" by statute
as a result of the Judicature Acts in England at the end of the last century
in the sense that they became parts of one body of law administered by
the same Courts, although they are still classified separately due to their
separate origins. In Stroud's Judicial Dictionary, we find (See : Vol. I, 4th
Edn. p. 517) : "The common law of England is that body of law which has
been judicially evolved from the general custom of the realm".
280. Here, all that I wish to indicate is that neither rights supposed to be
recognised by some" natural law nor those assumed to exist in some part
of Common Law could serve as substitutes for those conferred by Part III
of the Constitution. They could not be, on any principle of law or justice or
reason, virtually added to part III as complete replacements for rights
whose enforcement is suspended, and 'then be enforced, through
constitutionally provided machinery, as the unseen appendages of the
Constitution or as a separate group of rights outside the Constitution
meant for the emergency which suspends but does not resuscitate in a
new form certain rights.

281. A submission of Dr. Ghatate, appearing for Mr. Advani, was that we
should keep in mind the Universal Declaration of Human Rights in
interpreting the Constitution. He relied on Article 51 of the Constitution,
the relevance of which for the cases before us is not at all evident to me.
He also relied on the principle recognised by British Courts that
International Law is part of the law of the land. Similarly, it was urged, it
is part of our law too by reason of Article 372 of the Constitution. He
seemed to imply that we should read the universal declaration of human
rights into our Constitution as India was one of the signatories to it. These
submissions appear to me to amount to nothing more than appeals to
weave certain ethical rules and principles into the fabric of our
Constitution which is the paramount law of this country and provides the
final test of validity and enforceability of rules and rights through Courts.
To advance such arguments is to forget that our Constitution itself
embodies those rules and rights. It also governs the conditions of their
operation and suspension. Nothing which conflicts with the provisions of
the Constitution could be enforced here under any disguise.

282. Emergency provisions in our Constitution are, after all, a recognition

and extension of the individual's natural law right of self-defence, which
has its expression in positive laws, to the State, the legal organisation
through which society or the people in its collective aspect, functions for
the protection of the common interests of all. Such provisions or their
equivalents exist in the Constitutions of even the most advanced
democratic countries of the world. No lawyer can seriously question the
correctness, in Public International Law, of the proposition that the
operation and effects of such provisions are matters which are entirely
the domestic concern of legally sovereign States and can brook no outside
interference.

283. Subba Rao, C.J., speaking for five learned Judges of this Court, in 7.
C. Golaknath and Ors. v. State of Punjab and Anr. MANU/SC/0029/1967 :
[1967]2SCR762:
 Now, what are the fundamental rights ? They are embothed in
Part III of the Constitution and they may be classified thus : (i)
right to equality, (ii) right to freedom, (iii) right against
exploitation, (iv) right to freedom of religion, (v) cultural and
educational rights, (vi) right to property, and (via) right to
constitutional remethes. They are the rights of the people
preserved by our Constitution. "Fundamental rights" are the
modern name for what have been traditionally known as "natural
rights". As one author puts : "they are moral rights which every
human being everywhere at all times ought to have simply
because of the fact that in contradistinction with other beings, he
is rational and moral". They are the primordial rights necessary
for the development of human personality. They are the rights
which enable a man to chalk out ins own life in the manner he
likes best. Our Constitution, in addition to the well-known
fundamental rights, also included the rights of the minorities,
untouchables and other backward communities, in such rights.

284. I do not know of any statement by this Court of the relation between
natural rights and fundamental constitutional rights which conflicts with
what is stated above.

285. Hidayatullah, J., in Golaknath's case (supra) observed (at p, 877):

What I have said does not mean that Fundamental Rights are not
subject to change or modification. In the most inalienable of such
rights a distinction must be made between possession of a right
and its exercise. The first is fixed and the latter controlled by
justice and necessity. Take for example Article 21:

No person shall be deprived of ins life or personal liberty

except according to procedure established by law'. Of all
the rights, the right to one's life is the most valuable.
This Article of the Constitution, therefore, makes the
right fundamental. But the inalienable right is curtailed
by a murderer's conduct as viewed under law The
deprivation, when it takes place, is not of the right which
was immutable but of the continued exercise of the right.

286. The contents of Article 21 were considered at some length and given
a wide connotation by this Court in Gopalan's case (supra). Patanjali
Sastri, J., held at pages 195-196:

It was further submitted that Article 19 declared the substantive

rights of personal liberty while Article 21 provided the procedural
 safeguard against their deprivation. This view of the correlation
between the two Articles has found favour with some of the
Judges in the High Courts which have had occasion to consider
the constitutional validity of the impugned Act. It is, however, to
be observed that Article 19 confers the rights therein specified
only on the citizens of India, while Article 21 extends the
protection of life and personal liberty to all persons citizens and
non-citizens alike. Thus, the two Articles do not operate in a
conterminous field, and this is one reason for rejecting the
correlation suggested. Again, if Article 21 is to be understood as
providing only procedural safeguards, where is the substantive
right to personal liberty, of non-citizens to be found in the
Constitution ? Are they denied such right altogether ? If they are
to have no right of personal liberty, why is the procedural
safeguard in Article 21 extended to them ? And where is that
most fundamental right of all, the right to life, provided for in the
Constitution? The truth is that Article 21, like its American
prototype in the Fifth and Fourteenth Amendments of the
Constitution of the United States, presents an example of the
fusion of procedural and substantive rights in the same provision.
The right to live, though the most fundamental of all, is also one
of the most difficult to define and its protection generally takes
the form of a declaration that no person shall be deprived of it
save by due process of law or by authority of law. 'Process' or
'procedure' in this context connotes both the act and the manner
of proceeding to take away a man's life "or personal liberty. And
the first and essential step in a procedure established by law for
such deprivation must be a law made by a competent legislature
authorising such deprivation.

Mahajan, J., also observed at pages 229-230:

Article 21, in my opinion, lays down substantive law as giving

protection to fife and liberty inasmuch as it says that they cannot
be deprived except according to the procedure established by
law; in other words, it means that before a person can be
deprived of ins life or liberty as a condition precedent there
should exist some substantive law conferring authority for doing
so and the law should further provide for a mode of procedure for
such deprivation. This Article gives complete immunity against
the exercise of despotic power by the executive. It further gives
immunity against invalid laws which contravene the Constitution.
It gives also further guarantee that in its true concept there
should be some form of proceeding before a person can be
condemned either in respect of ins life or ins liberty. It negatives
 the idea of fantastic arbitrary and oppressive forms of
proceedings. The principles therefore underlying Article 21 have
been kept in view in drafting Article 22.

Das, J., said at page 295:

If personal liberty as such is guaranteed by any of the sub-

clauses of Article 19(1) then why has it also been protected by
Article 21 ? The answer suggested by learned Counsel for the
petitioner is that personal liberty as a substantive right is
protected by Article 19(1) and Article 21 gives only an additional
protection by prescribing the procedure according to which that
right may be taken away. I am unable to accept this contention.
If this argument were correct, then it would follow that our
Constitution does not guarantee to any person, citizen or non-
citizen, the; freedom of ins life as a substantive right at all, for
the substantive right to life does not fall within any of the sub-
clauses of Clause (1) of Article 19.

He also said at p. 306-307:

Article 21, as the marginal note states, guarantees to every

person 'protection of life and personal liberty'. As I read it, it
defines the substantive fundamental right to which protection is
given and does not purport to prescribe any particular procedure
at all. That a person shall not be deprived of ins life or personal
liberty except according to procedure established by law is the
substantive fundamental right to which protection is given by the
Constitution. The avowed object of the article, as I apprehend it,
is to define the ambit of the right to life and personal liberty
which is to be protected as a fundamental right. The right to life
and personal liberty protected by Article 21 is not an absolute
right but is a qualified right--a right circumscribed by the
possibility or risk of being lost according to procedure established
by law.

287. It will thus be seen that not only all steps leading up to the
deprivation of personal liberty but also the substantive right to personal
freedom has been held, by implication, to be covered by Article 21 of the
Constitution.

288. In Kharak Singh v. the State of U.P. and Ors. MANU/SC/0085/1962 :

1963CriLJ329 , the wide import of personal liberty, guaranteed by Article
21, was considered. By a majority of 4 against 2 learned Judges of this
Court, it was held that the term "personal liberty", as used in Article 21, is
a compendious one and includes all varieties of rights to exercise of
personal freedom, .other than those dealt with separately by Article 19,
which could fall under a broad concept of freedom of person. It was held
to include freedom from surveilance, from physical torture, and from all
kinds of harassment of the person which may interfere with ins liberty.

289. Thus, even if Article 21 is not the sole repository of all personal
freedom, it will be clear, from a reading of Gopalan's case (supra) and
Kharak Singh's case (Supra), that all aspects of freedom of person are
meant to be covered by Articles 19 and 21 and 22 of the Constitution. If
the enforcement of these rights by Courts is suspended during the
emergency an inquiry by a Court into the question whether any of them is
violated by an illegal deprivation of it by executive authorities of the State
seems futile.

290. For the reasons indicated above I hold as follows:--

Firstly, fundamental rights are basic aspects of rights selected from what
may previously have been natural or common law rights. These basic
aspects of rights are elevated to a new level of importance by the
Constitution. Any other co-extensive rights, outside the Constitution, are
necessarily excluded by their recognition as or merger with fundamental
rights.

Secondly, the object of making certain general aspects of rights

fundamental is to guarantee them against illegal, invasions of these rights
by executive, legislative, or judicial organs of the State. This necessarily
means that these safeguards can also he legally removed under
appropriate constitutional or statutory provisions, although their
suspension does not, by itself, take away the illegalities or their legal
consequences.

Thirdly, Article 21 of the Constitution has to be interpreted

comprehensively enough to include, together with Article 19, practically
all aspects of personal freedom. It embraces both procedural and
substantive rights. Article 22 merely makes it clear that deprivations of
liberty by means of laws regulating preventive detention would be
included in "procedure established by law" and indicates what that
procedure should be. In that sense, it could be viewed as, substantially,
an elaboration of what is found in Article 21, although it also goes beyond
it inasmuch as it imposes limits on ordinary legislative power.

Fourthly, taken by itself, Article 21 of the Constitution is primarily a

protection against illegal deprivations by the executive action of the
State's agents or officials, although, read with other Articles, it could
operate also as a protection against unjustifiable legislative action
purporting to authorise deprivations of personal freedom.

Fifthly, the most important object of making certain basic rights

fundamental by the 'Constitution is to make them enforceable against the
State and its agencies through the Courts.

Sixthly, if the protection of enforceability is validly suspended for the

duration of an emergency, declared under constitutional provisions, the
Courts will have nothing before them to enforce so as to be able to afford
any relief to a person who comes with a grievance before them.

(B) Power to issue writs of Habeas Corpus and oilier powers of High
Courts under Article 226 of the Constitution.

291. Reliance has been placed on behalf of the detenus on the following
statement of the law found in Halsbury's Laws of England (Vol. 11, p. 27,
paragraph 15), where dealing with the jurisdiction to issue such writs in
England it is said:

The right to the writ is a right which exists at common law

independently of any statute, though the right has been
confirmed and regulated by statute. At common law the
jurisdiction to award the writ) was exercised by the Court of
Queen's Bench, chancery, and Common Pleas, and, in a case of
privilege, by the Court of Exchequer.

It is, therefore, submitted that the High Courts as well as this Court which
have the same jurisdiction to issue writs of Habeas Corpus as English
Courts have to issue such writs at common law.

292. The argument seems to me to be based on several misconceptions:

293. Firstly, there are no Courts of the King or Queen here to issue writs
of Habeas Corpus by reason of any "prerogative" of the Britisk Monarch.
The nature of the writ of Habeas Corpus is given in the same volume of
Halsbury's Laws of England, dealing with Crown proceedings, at page 24,
as follows:

40. The prerogative writ of habeas corpus. The writ of habeas

corpus and subjiciendum, which is commonly known as the writ
of habeas corpus, is a prerogative process for securing the liberty
of the subject by affording an effective means of immediate
release from unlawful or unjustifiable detention, whether in
prison or in private custody. It is a prerogative writ by which the
Queen has a right to inquire into the causes for which any of her
 subjects are deprived of their liberty. By it the High Court and the
judges of that Court, at the instance of a subject aggrieved,
command the production of that subject, and inquire into the
cause of ins imprisonment. If there is no legal justification for the
detention, the party is ordered to be released. Release on habeas
corpus is not, however, an acquittal, nor may the writ be used as
a means of appeal.

294. It will be seen that the Common Law power of issuing the writ of
Habeas Corpus is possessed by only certain courts which could issue
"prerogative" writs. It is only to indicate the origin and nature of the writ
that the writ of habeas corpus is known here as a "prerogative" writ. The
power to issue it is of the same nature as a "prerogative" power inasmuch
as the power, so long as it is not suspended, may carry with it an
undefined residue of discretionary power. Strictly speaking, it is a
constitutional writ. The power to issue it is conferred upon Courts in this
country exclusively by our Constitution. All the powers of our Courts flow
from the Constitution which is the source of their jurisdiction. If any
provision of the Constitution authorises the suspension of the right to
obtain relief in any type of cases, the power of Courts is thereby curtailed
even though a general jurisdiction to afford the relief in other cases may
be there. If they cannot issue writs of Habeas Corpus to enforce a right to
personal freedom against executive authorities during the emergency, the
original nature of this writ issuing power-comparable to a "prerogative"
power, cannot help the detenu.

295. Secondly, as I have already indicated, whatever could be formerly

even said to be governed by a Common Law prerogative power becomes
merged in the Constitution as soon as the Constitution takes it over and
regulates that subject. This is a well recognised principle of law. I will only
cite Attorney-General v. De Keyser's Royal Hotel Limited [1920] A. C. 508,
where Lord Dunedin, in answer to a claim of the Crown based on
prerogative, said (at p. 526) ;

None the less, it is equally certain that if the whole ground of

something which could be done by the prerogative is covered by
the statute, it is the statute that rules. On this point I think the
observation of the learned Master of the Rolls is unanswerable.
He says : "What use could there be in imposing limitations, if the
Crown could at its pleasure disregard them and fall back on
prerogative ?.

296. Thirdly, if there is no enforceable right either arising under the

Constitution or otherwise, it is useless to appeal to any general power of
the Court to issue a writ of Habeas Corpus. The jurisdiction to issue an
order of release, on a Habeas Corpus petition, is only exercisable after
due enquiry into the cause of detention. If the effect of the suspension of
the right to move the Court for a writ of Habeas Corpus is that no enquiry
can take place, beyond finding out that the cause is one covered by the
prohibition, mere possession of some general power will not assist the
detenu.

297. If the right to enforce personal freedom through a writ of habeas

corpus is suspended, it cannot be said that the enforcement can be
restored by resorting to "any other purpose". That other purpose could
not embrace defeating the effect of suspension of the enforcement of a
Constitutional guarantee. To hold that would be to make a mockery of the
Constitution.

298. therefore, I am unable to hold that anything of the nature of a writ

of habeas corpus or any power of a High Court under Article 226 could
come to the aid of a detenu when the right to enforce a claim to personal
freedom, sought to be protected by the Constitution, is suspended.

(C) The objects of the Maintenance of Internal Security Act the Act') and
the amendments of it.

299. As this Court has recently held, in Haradhan Saha and Anr. v. The
State of West Bengal and Ors. MANU/SC/0419/1974 : 1974CriLJ1479
preventive detention is to be differentiated from punitive detention.
Nevertheless, it is evident, whether detention is preventive or punitive, it
necessarily results in the imposition of constraints, which, from the point
of view of justice to the detenu. should not be inflicted or continue
without fair and adequate and careful scrutiny into its necessity. This
Court pointed out that Article 22 of the Constitution was designed to
guarantee these requirements of fairness and justice which are satisfied
by the provisions of the Act. It said in said Haradhan Saha and Anr.
(supra) (at p. 784):

Constitution has conferred rights under Article 19 and also

adopted preventive detention to prevent the greater evil of
elements imperiling the security, the safety of a State and the
welfare of the Nation. It is not possible to think that a person
who is detained will yet be free to move or assemble or form
association or unions or have the right to reside in any part of
India or have the freedom of speech or expression.

300. Provision for preventive detention, in itself, is a departure from

ordinary norms. It is generally resorted to either in times of war or of
apprehended internal disorders and disturbances of a serious nature. Its
object is to prevent a greater danger to national security and integrity
than any claim; which could be based upon a right, moral or legal, to
individual liberty. It has been aptly described as a "jurisdiction of
suspicion." See : Khudiram Das v. State of West Bengal
MANU/SC/0423/1974 : [1975]2SCR832 , State of Madras v. V. G. Row
A.I. R. 1952 S. C. 197; R. v. Halliday [1917] A. C. 260. It enables
executive authorities to proceed on bare suspicion which has to give rise
to a "satisfaction", as the condition; precedent to passing a valid
detention order, laid down as follows in Section 3 of the Act:

3 (1) (a) if satisfied with respect to any person (including a

foreigner) that with a view to preventing him from acting in any
manner prejudicial to--

(i) the defence of India, the relations of India with foreign

powers, or the security of India, or

(ii) the security of the State or the maintenance of public order,

or

(iii) the maintenance of supplies and services essential to the

community, or

(b) if satisfied with respect to any foreigner that with a view to

regulating ins continued presence in India or with a view to
making arrangements for ins expulsion from India. It is
necessary so to do, make an order directing that such person is
detained.

301. The satisfaction, as held consistently by a whole line of authorities of

this Court, is a "subjective" one. In other words, it is not possible to
prescribe objective standards for reaching that satisfaction. Although the
position in law, as declared repeatedly by this Court, has been very clear
and categorical that the satisfaction has to be the subjective satisfaction
of the detaining authorities, yet, the requirements for supply of grounds
to the detenu, as provided in Section 8 of the Act in actual practice,
opened up a means of applying a kind of objective test by Courts upon
close scrutiny of these grounds. The result has, been, according to the
Attorney General, that" the subjective satisfaction of the detaining
authorities has 'tended to be substituted by the subjective satisfaction of
Court on the objective data provided by the grounds, as to the need to
detain for purposes of the Act. The question thus arose : Did this practice
not frustrate the purposes of the Act ?
302. The position of the detenu has generally evoked the sympathy of
lawyers and law Courts,. They cherish a tradition as zealous protectors of
personal liberty. They are engaged in pointing out, day in and day out,
the essentials of fair trial. They are used to acting strictly on the rules of
evidence contained in the Indian Evidence Act. The possibility of indefinite
incarceration, without anything like a trial, not unnaturally, seems
abhorrent to those with such traditions and habits of thought and action.

303. There is an aspect which perhaps tends to be overlooked in

considering matters which are generally placed for weighment on the
golden scales of the sensitive judicial balance. It is that we are living in a
world of such strain and stress, satirised in a recent fictional depiction of
the coming future, if not of a present already enveloping us. in Mr. Alva
Toffler's "Future Shock", with such fast changing conditions of life
dominated by technological revolutions as well as recurring economic,
social, and political crises, with resulting obliterations of traditional values,
that masses of people suffer from psychological disturbances due to
inability to adjust themselves to these changes and crises. An example of
such maladjustment is provided by what happened to a very great and
gifted nation within living memory. The great destruction, the inhuman
butchery, and the acute suffering and misery which many very civilised
parts of the world had to pass through, because some psychologically
disturbed people led by Adolf Hitler, were not prevented in time from
misleading and misguiding the German nation, is still fresh in our minds.
Indeed the whole world suffered, and felt the effects of the unchecked
aberrant Nazi movement in Germany and the havoc it unleashed when it
acquired a hold over the minds and feelings of the German people with all
the vast powers of modern science at their disposal. With such recent
examples before them, it was not surprising that our Constitution makers,
quite far sightedly, provided not only for preventive detention in our
Constitution but also introduced emergency provisions of a drastic nature
in it. These seem to be inescapable concomitants of conditions necessary
to ensure for the mass of the people of a backward country, a life of that
discipline without which the country's security, integrity, independence,
and pace of progress towards the objectives set before us by the
Constitution will not be safe.

304. I do not know whether it was a too liberal application of the principle
that courts must lean in favour of the liberty of the citizen, which is,
strictly speaking, only a principle of interpretation for cases of doubt or
difficulty, or, the carelessness with which detentions were ordered by
Subordinate officers in the Districts, or the inefficiency in drafting of the
grounds of detention, which were not infrequently found to be vague and
defective, the result of the practice developed by Courts was that detenus
did, in quite a number of cases, obtain from High Courts, and, perhaps
even from this Court, orders of release on Habeas Corpus petitions on
grounds on which validity of criminal trials would certainly not be
affected.

305. In Prabhu Dayal Deorah etc etc. v. District Magistrate Kanirup and
Ors. MANU/SC/0056/1973 : 1974CriLJ286 . I ventured, with great
respect, in my minority opinion, to suggest that the objects of the Act
may be frustrated if Courts interfere even before the machinery of redress
under the Act through Advisory Boards, where questions relating to
vagueness or irrelevance or even sufficiency of grounds could be more
effectively thrashed out than in Courts in proceedings under Article 32 or
226 of the Constitution, had been allowed to complete its full course of
operation. In some cases, facts were investigated on exchange of
affidavits only so as to arrive at a conclusion that some of the facts, upon
which detention orders were passed, did not exist at all. In other cases, it
was held that even if a single non-existent or vague ground crept into the
grounds for detention, the detention order itself was vitiated as it
indicated either the effects of extraneous matter or carelessness or non-
application of mind in making the order. Courts could not separate what
has been improperly considered from what was properly taken into
account. Hence detentions were held to be vitiated by such defects. In
some cases, the fact that some matter too remote in time from the
detention order was taken into consideration, in ordering the detention,
was held to be enough to invalidate the detention. Thus, grounds supplied
always operated as an objective test for determining the question
whether a nexus could reasonably exist between the grounds given and
the detention order or whether some infirmities had crept in. The
reasonableness of the detention became the justiciable issue really
decided. With great respect, I doubt whether this could be said to be the
object of preventive detention provisions authorised by the Constitution
and embothed in the Act. In any case, it was the satisfaction of the Court
by an application of a kind of objective test more stringently than the
principle of criminal procedure, that a defective charge could be amended
and would not vitiate a trial without proof of incurable prejudice to the
accused, which became, for all practical purposes, the test of the
correctness of detention orders.

306. I have ventured to indicate the background which seems to me to

have probably necessitated certain amendments in the Act in addition to
the reasons which led to the proclamation of emergency, the effects of
which are considered a little later below. We are not concerned here with
the wisdom of the policy underlying the amendments. It is, however,
necessary to understand the mischief aimed at so as to be able to
correctly determine the meaning of the changes made.
307. The Central Act 39 of 1975 which actually came into effect after
emergency added Section 16A to the Act, to Sub-sections of which have
been the subject matter of arguments before us. They read as follows:

(2) The case of every person (including a foreigner) against

whom an order of detention was made under [this Act on or after
the 25th day of June, 1975, but before the commencement of
this section, shall, unless such person is sooner released from
detention, be viewed within fifteen days from such
commencement by the appropriate Government for the purpose
of determining whether the detention of such person under this
Act is necessary for dealing effectively with the emergency in
respect of which the Proclamations referred to in Sub-section (1)
have been issued (hereafter in this Section referred to as the
emergency) and if, on such review, the appropriate Government
is satisfied that it is necessary to detain such person for
effectively dealing with the emergency, that Government may
make a declaration to that effect and communicate a copy of the
declaration to the person concerned.

(3) When making an order of detention under this Act against

any person (including a foreigner) after the commencement of
this section, the Central Government or the State Government or,
as the case may be, the officer making the order of detention
shall consider whether the detention of such person under this
Act is necessary for dealing effectively with the emergency and if,
on such consideration, the Central Government or the State
Government or, as the case may be, the officer is satisfied that it
is necessary to detain such person for effectively dealing with the
emergency, that Government or officer may make a declaration
to that effect and communicate a copy of the declaration to the
person concerned:

Provided that where such declaration is made by an

officer it shall be reviewed by the State Government to
which such officer is subordinate within fifteen days from
the date of making of the declaration and such
declaration shall cease to have effect unless it is
confirmed by the State Government, after such review,
within the said period of fifteen days.

308. Act No. 14 of 1976, which received the Presidential assent on 25th
January, 1976, added Section, 16A(9) which runs as follows:
 16A(9) Notwithstanding anything contained in any other law or
any rule having the force of law,--

(a) the Grounds on which an order of detention is made

or purported to be made under Section 3 against any
person in respect of whom a declaration is made under
Sub-section (2) or Sub-section (3) and any information
or materials on which such grounds or a declaration
under Sub-section (2) or declaration or confirmation
under Sub-section (3) or the non-revocation under Sub-
section (4) of a declaration are based, shall be treated as
confidential and shall be deemed to refer to matters of
State and to be against the public interest to disclose
and save as otherwise provided in this Act, on one shall
communicate or disclose any such ground, information
or material or any document containing such ground,
information or material;

(b) No person against whom an order of detention is

made or purported to be made under Section 3 shall be
entitled to the communication or disclosure of any such
ground, information or material as is referred to in
Clause (a) or the production to him of any document
containing such ground, information or material.

This Section and Section 18 of the Act are the only provisions whose
validity is challenged before us.

309. It appears to me that the object of the above mentioned

amendments was to affect the manner in which jurisdiction of Courts in
considering claims for relief's by detenus on petitions for writs of Habeas
Corpus was being exercised so that the only available means that had
been developed for such cases by the Courts, that is to say, the scrutiny
of grounds supplied under Section 8 of the Act., may be removed from
the judicial armory for the duration of the emergency. It may be
mentioned here that Article 22(5) and 22(6) of the Constitution provided
as follows:

22(5) When any person is detained in pursuance of the order

made under any law providing for preventive detention, the
authority making the order shall, as soon as may be,
communicate to such person the grounds on which the order has
been made and shall afford him the earliest opportunity of
making a representation against the order.
 22(6) Nothing in Clause (5) shall require the authority making
any such order as is referred to in that clause to disclose facts
which such authority considers to be against the public interest to
disclose.

310. The first contention, that Section 16A(9) affects the jurisdiction of
High Courts under Article 226, which an order under Article 359(1) could
not do, appears to me to be untenable. I am unable to see how a
Presidential Order which prevents a claim for the en forcement of a
fundamental right from being advanced in a Court, during the existence of
an emergency, could possibly be said not to be intended to affect the
exercise of jurisdiction of Courts at all.

311. The second argument, that Section 16A(9) amounts to a general

legislative declaration in place of judicial decisions which Courts had
themselves to give after considering, on the facts of each case, whether
Article 22(6) could be applied, also does not seem to me to be
acceptable. The result of Section 16A(9), if valid, would be to leave the
presumption of correctness of an order under Section 3 of the Act, good
on the face of it, untouched by any investigation relating to its
correctness. Now, if this be the object and effect of the amendment, it
could not be said to go beyond making it impossible for detenus to rebut
a presumption of legality and validity which an order under Section 3 of
the Act, if prima facie good, would raise in an event. The same result
could have been achieved by enacting that a detention order under
Section 3, prima facie good, will operate as "conclusive proof" that the
requirements of Section 3 have been fulfilled. But, as the giving of
grounds is not entirely dispensed with under the Act even as it now exists
this may have left the question in doubt whether Courts could call upon
the detaining authorities to produce the grounds. Enactment of a rule of
conclusive proof is a well established form of enactments determining
substantive rights in the form of procedural provisions.

312. In any case, so far as the rights of a detenu to obtain relief are
hampered, the question raised touches the enforcement of the
fundamental right to personal freedom. Its effect upon the powers of the
Court under Article 226 is, as I have already indicated, covered by the
language of Article 359(1) of the Constitution. It is not necessary for me
to consider the validity of such a provision if it was to be applied at a time
not covered by the emergency, or whether it should be read down for the
purposes of a suit for damages where the issue is whether the detention
was ordered by a particular officer out of "malice in fact" and for reasons
completely outside the purview of the Act itself. That sort of inquiry is not
open, during the emergency, in proceedings under Article 226.
313. On the view I take, for reasons which will be still clearer after a
consideration of the remaining questions discussed below., I think that,
even the issue that the detention order is vitiated by "malice in fact" will
not be justiciable in Habeas Corpus proceedings during the emergency
although it may be in an ordinary suit which is not filed for enforcing a
fundamental right but for other relief's. The question of bona fides seems
to be left open for decision by such suits on the language of Section 16 of
the Act itself which says:

16. No suit or other legal proceedings shall lie against the Central
Government or a State Government, and no suit, prosecution or
other legal proceedings shall lie against any person, for anything
in good faith done or intended to be done in pursuance of this
Act.

314. Section 16 of the Act seems to leave open a remedy by way of suit
for damages for wrongful imprisonment in a possible case of what may be
called "malice in fact". In the cases before us, we are only concerned with
Habeas Corpus proceedings under Article 226 of the Constitution where in
my opinion, malice in fact could not be investigated as it is bound to be
an allegation subsidiary to a claim for the enforcement of a right to
personal liberty, a fundamental right which cannot be enforced during the
emergency.

315. In Sree Mohan Chowdhury v. The Chief Commissioner, Union

Territory of Tripura MANU/SC/0035/1963 : 1964CriLJ132 , a Constitution
Bench of this Court, after pointing out that Article 32(4) contemplated a
suspension of the guaranteed right only as provided by the Constitution,
said (at p. 450-451):

The order of the President dated November 3, 1962, already set

out, in terms, suspends the right of any person to move any
Count for the enforcement of the rights conferred by Articles 21
and 22 of the Constitution, during the period of emergency.
Prima facie, therefore, the petitioner's right to move this Court
for a writ of Habeas Corpus,, as he has purported to do by this
petition, will remain suspended during the period of the
emergency. But even then it has been contended on behalf of the
petitioner that Article 359 does not authorise the suspension of
the exercise of the right guaranteed under Article 32 of the
Constitution and that, in terms, the operation of Article 32 has
not been suspended by the President. This contention is wholly
unfounded. Unquestionably, the Court's power to issue a writ in
the nature of habeas corpus has not been touched by the
President's Order, but the petitioner's right to move this Court for
 a writ of that kind has been suspended by the Order of the
President passed under Article 359(1). The President's Order
does not suspend all the rights vested in a citizen to move this
Court but only ins right to enforce the provisions of Articles 21
and 22. Thus, as a result of the President's Order aforesaid, the
petitioner's right to move this Court, but not this Court's power
under Article 32, has been suspended during the operation of the
emergency, with the result that the petitioner has no locus standi
to enforce ins right, if any, during the emergency.

316. It is true that the Presidential Order of 1975, like the Presidential
Order of 1962, does not suspend the general power of this Court under
Article 32 or the general powers of High Courts under Article 226, but the
effect of taking away enforceability of the right of a detenu to personal
freedom against executive authorities is to affect the locus standi in cases
which are meant to be covered by the Presidential Order. Courts, even in
Habeas Corpus proceedings, do not grant relief independently of rights of
the person deprived of liberty. If the locus standi of a detenu is suspended
no one can claim,, on ins behalf, to get ins right enforced. The result is to
affect the powers of Courts, even if this be an indirect result confined to a
class of cases, but, as the general power to issue writs of Habeas Corpus
is not suspended, this feature was, quite rightly, I respectfully think,
pointed out by this Court in Mohan Chowdhury's case (supra). It would
not be correct to go further and read more into the passage cited above
than seems intended to have been laid down there. The passage seems to
me to indicate quite explicitly, as the language of Article 359(1) itself
shows., that the detenu's right to move the Courts for the enforcement of
ins right to personal freedom, by proving an illegal deprivation of it by
executive authorities of the State, is certainly not there for the duration of
the emergency. And, to the extent that Courts do not, and, indeed,
cannot reasonably, act without giving the detenu some kind of a right or
locus standi, their power to proceed with a Habeas petition against
executive authorities of the State is itself impaired. It may be that, in
form and even in substance., a general power to issue writs of Habeas
Corpus, remains with Courts. But, that could only be invoked in cases
falling entirely outside the purview of; the Presidential Order and Article
359(1). That is how I, with great respect, understand the effect of Sree
Mohan Chowdhury's case (supra).

317. It is possible that, if a case so patently gross and clear of a detention

falling, on the face of the order of detention or the return made to a
notice from the Court outside the provisions of the Act on the ground of
personal malice of the detaining authority, or, some other ground utterly
outside the Act, arises so that no further investigation is called for, it may
be possible to contend that it is not protected by the Presidential Order of
27th June, 1975, and by the provisions of Article 359(1) of the
Constitution at all. If that could be patent, without any real investigation
or inquiry at all, it may stand on the same footing as an illegal detention
by a private individual. The mere presence of an official seal or signature
on a detention order, in such a purely hypothetical case, may not be
enough to convert it into a detention by the State or its agents or officers.
That is the almost utterly inconceivable situation or type of case which
could still be covered by the general power to issue writs of Habeas
Corpus. There may, for example, be a case of a fabricated order of
detention which, the alleged detaining officer, on receipt of notice,
disclaims. It is admitted that Part III of the Constitution is only meant to
protect citizens against illegal actions of organs of the State and not
against wrongs done by individuals.

The remedy by way of a writ of Habeas Corpus is more general. It lies

even against illegal detentions by private persons although not under
Article 32 which is confined to enforcement of fundamental rights (Vide :
Shrimati Vidya Verma through next friend R. V. S. Mani, v. Dr. Shiv Narain
MANU/SC/0072/1955 : 1956CriLJ283 . The Attorney General also
concedes that judicial proceedings for trial of accused persons would fall
outside the interdict of the Presidential Order under Article 359(1).
therefore, it is unnecessary to consider hypothetical cases of illegal
convictions where remethes under the ordinary law are not suspended.

318. Now, is it at all reasonably conceivable that a detention order would,

on the face of it, state that it is not for one of the purposes for which it
can be made under the Act or that it is made due to personal malice or
animus of the officer making it ? Can we, for a moment, believe that a
return made on behalf of the State, instead of adopting a detention order,
made by an officer duly authorised to act, even if there be a technical
flaw in it, admit that it falls outside the Act or was made mala fide and yet
the State is keeping the petitioner in detention ? Can one reasonably
conceive of a case in which, on a Habeas Corpus petition, a bare look at
the detention order or on the return made, the Court could hold that the
detention by a duly authorised officer under a duly authenticated order,
stands on the same footing as a detention by a private person? I would
not like to consider purely hypothetical, possibly even fantastically
imaginary, cases lest we are asked to act, as we have practically been
asked to, on the assumption that reality is stranger than fiction., and that
because, according to the practice of determining validity of detention
orders by the contents of grounds served, a number of detentions were
found, in the past, to be vitiated, we should not presume that executive
officers will act according to law.
319. Courts must presume that executive authorities are acting in
conformity with both the spirit and the substance of the law : "Omina
praesumutur rite esse acts", which means that all official acts are
presumed to have been rightly and regularly done. If the burden to
displace that presumption is upon the detenu, he cannot, on a Habeas
Corpus petition under Article 226 of the Constitution., ask the Court to
embark upon an inquiry, during the emergency, to allow him to rebut this
presumption. To do so would, in my opinion, be plainly to countenance a
violation of the Constitution.

320. A great deal of reliance was placed on, behalf of the detenus, on the
principle stated by the Privy Council in Eshuqbayi Eleko v. Officer
Administering the Government of Nigeria and Anr. [1931] A.C. 662 where
Lord Aktin said (at p. 670):

Their Lordships are satisfied that the opinion which has prevailed
that the Courts cannot investigate the whole of the necessary
conditions is erroneous. The Governor acting under the Ordinance
acts solely under executive powers, and in no sense as a Court.
As the executive he can only act in pursuance of the powers
given to him by law. In accordance with British jurisprudence no
member of the executive can interfere with the liberty or
property of a British subject except on the condition that he can
support the legality of ins action before a court of justice. And it
is the tradition of British justice that judges should not shrink
from deciding such issues in the face of the executive. The
analogy of the powers of the English Home Secretary to deport
alienee was invoked in this case. The analogy seems very close.
Their Lordships entertain no doubt that under the legislation in
question, if the Home Secretary deported a British subject in the
belief that he was an alien,, the subject would have the right to
question the validity of any detention under such order by
proceedings in habeas corpus, and that it would be the duty of
the Courts to investigate the issue of alien or not.

321. The salutary general principle, enunciated above, is available, no

doubt, to citizens of this country as well in normal times. But it was
certainly not meant to so operate as to make the executive answerable
for all its actions to the Judicature despite the special provisions for
preventive detention in an Act intended to safeguard the security of the
nation, and, much less, during an emergency., when the right to move
Courts for enforcing fundamental rights is itself suspended. Principles
applicable when provisions, such as those which the Act contains, and a
suspension of the right to move Courts for fundamental rights, during an
emergency, are operative, were thus indicated, in Liversidge v. Sir John
Anderson and Anr. [1942] A. C. p. 206 by Viscount Maughan (at p. 219):

There can plainly be no presumption applicable to a regulation

made under this extraordinary power that the liberty of the
person in question will not be interfered with, and equally no
presumption that the detention must not be made to depend (as
the terms of the Act indeed suggest) on the unchallengeable
opinion of the Secretary of State.

Following the ratio decidendi of Rex v. Secretary of State for Home

Affairs, Ex parte Lees [1941] 1 K. B. 72, the learned Law Lord said (at p.
217).

As 1 understand the judgment in the Lees case it negatived the

idea that the court had any power to inquire into the grounds for
the belief of the Secretary of State (his good faith not being
impugned) or to consider whether there were grounds on which
he could reasonably arrive at his belief.

In Liversidge's case (supra), the Court's power to inquire into the

correctness of the belief of the Secretary of State was itself held to be
barred merely by the terms of a Regulation made under a statute without
even a constitutional suspension of the right to move Courts such as the
one we have before us.

322. In Liversidge's case (supra), Lord Wright explained Eshuqbayi

Elekos' case (supra), cited before their Lordships., as follows: (at p. 273):

The other matter for comment is the decision in Eshuqbayi Eleko

v. Officer Administering the Government of Nigeria (1931) A.C.
662 , where the government claimed to exercise certain powers,
including deportation, against the appellant. The appellant
applied for a writ of habeas corpus, on the ground that the
ordinance relied on gave by express terms the powers it
contained only against one who was a native chief, and who had
been deposed, and where there was a native custom requiring
him to leave the area, whereas actually not one of these facts
was present in the case. It was held in effect that the powers
given by the ordinance were limited to a case in which these facts
existed. It was a question of the extent of the authority given by
the ordinance. That depended on specific facts., capable of proof
or disproof in a court of law, and unless these facts existed, there
was no room for executive discretion. This authority has, in my
opinion, no bearing in the present case, as I construe the powers
 and duties given by the regulation. There are also obvious
differences between the ordinary administrative ordinance there
in question and an emergency power created to meet the
necessities of the war and limited in its operation to the period of
the war. The powers cease with the emergency. But that period
still continues and, it being assumed that the onus is on the
respondents in this action of unlawful imprisonment, the onus is
sufficiently discharged, in my opinion, by the fact of the order
having been made by a competent authority within the ambit of
the powers entrusted to him and being regular on its face.

323. Viscount Maugham, in Greene v. Secretary of State for Home Affairs

[1942] A.C. 284, after referring to a very comprehensive opinion of
Wilmot C. J. on the nature of Habeas Corpus proceedings in Common
Law, pointed out that a return, good on its face and with no affidavit in
support of it, could not be disputed on the application for a writ. At
Common Law, the "sacred" character of the return, as Wilmot C. J. called
it, even without a supporting affidavit, could not be touched except by the
consent of the parties", because the whole object of the writ was to
enquire into the existence of a legally recognised cause of detention, in a
summary fashion, and not into the truth of facts constituting the cause.
By the Habeas Corpus Act of 1816, the powers of Courts were extended
so that it became possible to go behind the return in suitable cases other
than those where a person was confined for certain excepted matters
including criminal charges. In these excepted matters the return was and
is still conclusive so that English Courts do not go behind them. In
Greene's case, (supra), the rule of presumptive correctness of the return
was applied to the return made on behalf of the Secretary of State to the
extent of treating it as practically conclusive. It was held that the mere
production of the Home Secretary's order, the authenticity and good faith
of which were not impugned, constituted a complete answer to an
application for a writ of Habeas Corpus and that it was not necessary for
the Home Secretary to file an affidavit. It is interesting to note that, in
that case, which arose during the emergency following the war of 1939,
the failure of the Advisory Committee to supply the correct reasons for ins
detention to the petitioner were not held to be sufficient to invalidate ins
incarceration. On the other hand, in this country., a violation of the
obligation to supply grounds of detention has been consistently held to be
sufficient to invalidate a detention before the changes in the Act and the
Presidential Order of 1975.

324. By Section 7 of the Act 39 of 1975, Section 18 was added to the Act
with effect from 25th June, 1975. This provision reads:
 18, No person (including a foreigner) detained under this Act
shall have any right to personal liberty by virtue of natural law or
common law, if any.

In view of what I have pointed out earlier, this provision was not \
necessary. It appears to have been added by way of abundant caution.

325. By Section 5 of the amendment Act 14 of 1976 another amendment

was made in Section 18, substituting, for the words "under this Act" used
in Section 18, the words "in respect of whom an order is made or
purported to have been made under Section 3", retrospectively from 25th
day of June, 1975.

326. These amendments are covered by Article 359(1A) of the

Constitution., so that their validity is unassailable during the emergency
on the ground of violation of any right conferred by Part III of the
Constitution. Nevertheless, the validity of Section 18 of the Act, as it
stands, was challenged on the ground, as I understand it, that, what is
described as "the basic structure'' of the Constitution was violated
because, it was submitted, the Rule of Law, which is a part of the "basic
structure" was infringed by the amended provisions. As I have indicated
below., I am unable to subscribe to the view that the theory of basic
structure amounts to anything more than a mode of interpreting the
Constitution. It cannot imply new tests outside the Constitution or be
used to defeat Constitutional provisions. I am unable to see any force in
the attack on the validity of Section 18 of the Act on this ground.

327. The result of the amendments of the Act, together with the
emergency provisions and the Presidential Order of 27th June, 1975, in
my opinion, is clearly that the jurisdiction of High Courts is itself affected
and they cannot go beyond looking at the prima facie validity of the
return made. The production of a duly authenticated order, purporting to
have been made by an officer competent to make it under Section 3 of
the Act, is an absolute bar to proceeding further with the hearing of a
Habeas Corpus .petition.

(D) The purpose and meaning of emergency provisions, particularly

Article 359 of our Constitution.

328. From the inception of our Constitution, it was evident that the
framers of it meant to establish a secular democratic system of
Government with certain objectives before it without which real
democracy is a mirage. Hence, they provided us not only with an inspiring
Preamble to the, Constitution and basic Fundamental Rights to citizens,
but also with Directive Principles of State Policy so as to indicate how not
only a political, but, what is more important, social and economic
democracy, with maximum practicable equality of status and opportunity,
could be attained. They foresaw that it may be necessary, for preserving
the system thus set up and for ensuring a rapid enough march towards
the objectives placed before the people of India, to give the executive
branch of Government wide powers, in exceptional situations, so that it
may deal with all kinds of emergencies effectively, and, thereby,
safeguard the foundations of good Government which lie in discipline and
orderliness combined with speedy and substantial justice. The late Prime
Minister Jawaharlal Nehru once said : "You may define democracy in a
hundred ways, but surely one of its definitions is self-discipline; of the
community. The more the self-discipline, the less the imposed discipline".

329. Laws and law Courts are only a part of a system of that imposed
discipline which has to take its course when self-discipline fails. Conditions
may supervene, in the life of a nation, in which the basic values we have
stood for and struggled to attain, the security, integrity, and
independence of the country, or the very conditions on which existence of
law and order and of law courts depend, may be imperilled by forces
operating from within or from outside the country. _ What these forces
are, how they are operating, what information exists for the involvement
of various individuals, wherever placed, could not possibly be disclosed
publicly or become matters suitable for inquiry into or discussion in a
Court of Law.

330. In Liversidge v. Sir John Anderson (supra) the following passages

from Rex v. Halliday [1917] A.C. 260, were cited by Lord Romer to justify
principles adopted by four out five of their Lordships in Liversidges case in
their judgments : (1) Per Lord Atkins (at p. 271):

However precious the personal liberty of the subject may be,

there is something for which it may well be, to some extent
sacrificed by legal enactment, namely, national success in the
war, of escape from national plunder or enslavement'.

(2) Per Lord Finlay, L.C. (at p. 269).

It seems obvious that no tribunal for investigating the question

whether circumstances of suspicion exist warranting some
restraint can be imagined less appropriate than a Court of law.

After citing the two passages quoted above, Lord Romer observed, in
Liversidge''s case (supra) (at p. 281):
 I respectfully agree. I cannot believe that the legislature or the
framers of the regulation ever intended to constitute the courts of
this country the ultimate judges of the matters in question.

331. If, as indicated above, the opinion of the overwhelming majority of

the Law Lords of England,, in Liversidge's case (supra), following the
principles laid down earlier also in Rex. v. Halliday Ex Pane Zadig's
(supra), was that the jurisdiction of Courts is itself ousted by a statutory
rule vesting the power of detention on a subjective satisfaction, based
possibly on nothing more than a detenu's descent from or relationship or
friendship with nationals of a country with which England may be at war,
and that the Secretary of State's order indicating that he was satisfied
about one of these matters, on hearsay information which could not be
divulged in courts, in the interests of national safety and security, was
enough, I do not think that either our Constitution in contemplating an
ouster of jurisdiction of Courts in such cases, or our parliament, in
enacting provisions which have that effect, was going beyond the limits of
recognised democratic principles as they operate during emergencies. In
fact, decisions on what restraints should be put and on which persons.,
during a national emergency, in the interests of national security, are
matters of policy as explained below, which are outside the sphere of
judicial determination.

332. Situations of a kind which could not even be thought of in England

are not beyond the range of possibility in Asian and African countries or
even in Continental Europe or in America judging from events of our own
times. Indeed, we too have had our fill of grim tragethes, including the
assassination of the father of the nation, which could rock the whole
nation and propel it towards the brink of an unfathomable abyss and the
irreparable disaster which anarchy involves.

333. Let me glance at the Constitutional History of England from where

we took the writ of Habeas Corpus.

334. Sir Erskine May wrote (See : Constitutional History of Eneland,

Chapter XI):

The writ of habeas corpus is unquestionably the first security of

civil liberty. It brings to light the cause of every imprisonment,
approves its lawfulness., or liberates the prinsoner. It exacts
obedience from the highest courts : Parliament itself submits to
its authority. No right is more justly valued. It protects the
subject from unfounded suspicions, from the aggressions of
power, and from abuses in the administration of justice. Yet, this
protective law, which gives every man security and confidence, in
times of tranquility, has been suspended, again and again, in
periods of public danger or apprehension. Rarely, however, has
this been suffered without jealousy, hesitation, and
remonstrance; and whenever the perils of the State have been
held sufficient to warrant this sacrifice of personal liberty, no
Minister or magistrate has been suffered to tamper with the law
at ins discretion. Parliament alone, convinced of the exigency of
each occasion, has suspended, for a time, the right of individuals,
in the interests of the State.

The first years after the Revolution were full of danger. A

dethroned king, aided by foreign enemies., and a powerful body
of English adherents, was threatening the new settlement of the
Crown with war and treason. Hence, the liberties of Englishmen,
so recently assured, were several times made to yield to the
exigencies of the State. Again, on occasions of no less peril--the
rebellion of 1715. the Jacobite conspiracy of 1722, and the
invasion of the realm by the Pretender in 1745--the Habeas
Corpus Act was suspended. Henceforth, for nearly half a century,
the law remained inviolate. During the American War, indeed, it
had been necessary to empower the king to secure persons
suspected of high treason, committed in North America, or on the
high seas, or of the crime of piracy : but it was not until 1794
that the civil liberties of Englishmen at home were again to be
suspended. The dangers and alarms of that dark period have
already been recounted. Ministers, believing the State to be
threatened by traitorous conspiracies, once more sought power
to countermine treason by powers beyond the law.

Relying upon the report of a secret committee, Mr. Pitt moved 'for
a bill to empower ins Majesty to secure and detain persons
suspected of conspiring against ins person and Government. He
justified this measure on the ground that whatever the temporary
danger of placing such power in the hands of the Government,, it
was far less than the danger with which the Constitution and
society were threatened. If Ministers abused the power entrusted
to them, they would be responsible for its abuse. It was
vigorously opposed by Mr. Fox, Mr. Grey, Mr. Sheridan, and a
small body of adherents. They denied the disaffection imputed to
the people, ridiculed the revelations of the committee, and
declared that no such dangers threatened the State as would
justify the surrender of the chief safeguard of personal freedom.
This measure would give Ministers absolute power over every
individual in the kingdom. It would empower them to arrest, on
suspicion, any maa whose opinions were obnoxious to them--the
 advocates of reform., even the members of the Parliamentary
Opposition. Who would be safe, when conspiracies were
everywhere suspected, and constitutional objects and language
believed to be the mere cloak of sedition? Let every man charged
with treason be brought to justice; in the words of Sheridan,
'where there was guilt, let the broad axe fall, but why surrender
the liberties of the innocent ?

The strongest opponents of the measure, while denying its

present necessity, admitted that when danger is imminent, the
liberty of the subject must be sacrificed to the paramount
interests of the State. Ring leaders must be seized, outrages
anticipated, plots disconcerted, and the dark haunts of conspiracy
filled with distrust and terror. And terrible indeed was the power
now entrusted to the executive. Though termed a suspension of
the Habeas Corpus Act, it was, in truth, a suspension of Magna
Charta, and of the cardinal principles of the common law. Every
man had hitherto been free from imprisonment until charged with
crime, by information upon oath, and entitled to a speedy trial;
and the judgment of ins peers. But any subject could now be
arrested on suspicion of treasonable practices, without specific
charge or proof of guilt, ins accusers were unknown; and in vain
might he demand public accusation and trial. Spies and
treacherous accomplices., however circumstantial in their
narratives to Secretaries of State and law officers, shrank from
the witness-box; and their victims rotted in gaol. Whatever the
judgment, temper, and good faith of the executive, such a power
was arbitrary, and could scarcely fail to be abused. Whatever the
danger by which it was justified, never did the subject; so much
need the protection of the laws, as when Government and society
were filled with suspicions and alarm.

334-A. It was not until 1801 that the Act was considered "no longer
defensible on grounds of public danger" and Lord Thurlow announced that
he could "not resist the impulse to deem, men innocent until tried and
convicted". It was urged in defence of a Bill indemnifying all those who
may have misused or exceeded their powers during the period of
suspension of the Habeas Corpus in England that, unless it was passed,
"those channels of information would be stopped on which Government
relied for guarding the public peace". Hence,, a curtain was drawn to
shield all whose acts could have been characterised as abuse or excess of
power.

334-B. It is unnecessary to cite from Dicey or modern writers of British

Constitutional Law, such as M/s. Wade and Phillips, to show how, in times
of emergency, the ordinary functions of Courts, and, in particular, powers
of issuing writs of Habeas Corpus, have been curtailed. In such periods,
legislative measures known as "suspension of the Habeas Corpus Act",
followed by Acts of Indemnity, after periods of emergency are over, have
been restored to in England. But, during the first world war of 1914 and
the last world war of 1939, it was not even necessary to suspend the
Habeas Corpus Act in England. The Courts themselves, on an
interpretation of the relevant regulations under the Defence of Realm Act,
abstained from judicial interference by denying themselves power to
interfere.

335. In Halsbitry's Laws of England (4th Edn. Vol. 8, para 871, page 624),
we find the following statement about the Crown's Common Law
prerogative power in an emergency:

The Crown has the same power as a private individual of taking

all measures which are absolutely and immediately necessary for
the purpose of dealing with an invasion or other emergency.

And, as regards statutory powers of the Crown (See : Emergency Powers

Act., 1920, Sec. 1; Emergency Powers Act, 1964, Sec 1), we find (see
para 983, page 627):

If it appears to Her Majesty that events of a specified nature have

occurred or are about to occur, Her Majesty may by proclamation
declare that a state of emergency exists. These events are those
of such a nature as to be calculated, by interfering with the
supply and distribution of food, water, fuel or light, or with the
means of locomotion, to deprive the community, or any
substantial portion of the community, of the essentials of life. No
proclamation is to be in force for more than one month., without
prejudice to the issue of another proclamation at or before the
end of that period.

XXX XXX XXX XXX

Where a proclamation of emergency has been made, and so long

as it remains in force, the Crown has power by Order in Council
to make regulations for securing the essentials of life to the
Community.

336. In America also, the suspension of the right to writs of Habeas

Corpus, during emergencies, so as to temporarily remove the regular
processes of law, is permissible by legislation (See : Cooky's
Constitutional Lanv", 4th Edn. Chapter 34, p. 360), but it is limited by
(Article 1. , Sec. 9, clause 2) the American Constitution to situations in
which there may be a rebellion or an invasion (See : Willis on
"Constitutional Law of United States", 1936 edn. p. 441 and p.- 5/0).
Even more drastic consequences flow from what is known in France as
declaration of a '"State of Seige", and, in other countries, as a
"Suspension of Constitutional Guarantees.

337. Under our Constitution, it will be seen, from an analysis of

emergency provisions, that there is no distinction between the effects of a
declaration of emergency, under Article 352(1), whether the threat to the
security of the State is from internal or external sources. Unlike some
other countries, powers of Presidential declarations under Article 352(1)
and 359(1) of our Constitution are immune from challenge in Courts even
when the emergency is over.

338. Another noticeable feature of our Constitution is that, whereas the

consequences given in Article 358, as a result of a Proclamation under
Article 352(1), are automatic, Presidential Orders under Article 359(1)
may have differing consequences, from emergency to emergency,
depending upon the terms of the Presidential Orders involved. And then,
Article 359(1A), made operative retrospectively by the 38th Constitutional
amendment, of 1st August, 1975, makes it clear that both the Legislative
and Executive Organs of the State, are freed, for the duration of the
emergency, from the limits imposed by Part III of the Constitution.

339. It is unnecessary to refer to the provisions of Articles 356 and 357

except to illustrate the extremely wide character of emergency powers of
the Union Govt. which can, by recourse to these powers, make immune
from judicial review, suspend the federal features of our Constitution
which have, sometimes, been elevated to the basic level. These provisions
enable the Union Govt. to supersede both the legislative and executive
wings of Government in a State in the event of a failure of Constitutional
machinery in that State, and to administer it through any person or body
of persons under Presidential directions with powers of the State
Legislature "exercisable by or under the authority of Parliament". Article
360, applicable only to Proclamations of financial emergencies, with their
special consequences, indicates the very comprehensive character of the
emergency provisions contained in part XVIII of our Constitution. We are
really directly concerned only with Articles 352 and 353 and 358 and 359
as they now stand. They are reproduced below:

340. (1) If the President is satisfied that a grave emergency

exists whereby the security of India or of any part of the territory
thereof is threatened, whether by war or external aggression or
internal disturbance, he may, by Proclamation make a declaration
to that effect.

(2) A Proclamation issued under Clause (1)-

(a) may be revoked by a subsequent Proclamation;

(b) shall be laid before each House of Parliament;

(c) shall cease to operate at the expiration of two

months unless before the expiration of that period it has
been approved by resolution of both Houses of
Parliament:

Provided that if any such Proclamation is issued

at a time when the House of the People has
been dissolved or the dissolution of the House of
the People takes place during the period of two
months referred to in sub-Clause (c), and if a
resolution approving the Proclamation has been
passed by the Council of States, but no
resolution with respect to such Proclamation has
been passed by the House of the People before
the expiration of that period, the Proclamation
shall cease to operate at the expiration of thirty
days from the date on which the House of the
People first sits after its reconstitution unless
before the expiration of the said period of thirty
days a resolution approving the Proclamation
has been also passed by the House of the
People.

(3) A Proclamation of emergency declaring that the security of

India or of any part of the territory thereof is threatened by war
or by external aggression or by internal disturbance may be
made before the actual occurrence of war or of any such
aggression or disturbance if the President is satisfied that there is
imminent danger thereof.

(4) The power conferred on the President by this Article shall

include the power to issue different Proclamations on different
grounds, being war or external aggression or internal disturbance
or imminent danger of war or external aggression or internal
disturbance, whether or not there is a Proclamation already
issued by the President under Clause (1) and such Proclamation
is in operation.

(5) Notwithstanding anything in this Constitution,--

(a) the satisfaction of the President mentioned in Clause

(1) and Clause (3) shall be final and conclusive and shall
not be questioned in any court on any ground;

(b) subject to the provisions of Clause (2), neither the

Supreme Court nor any other court shall have
jurisdiction to entertain any question, on any ground,
regarding the validity of--

(i) a declaration made by Proclamation by the

President to the effect stated in Clause (1); or

(ii) the continued operation of such

Proclamation.

"353. While a Proclamation of emergency is in operation, then--

(a) notwithstanding anything in this Constitution, the

executive power of the Union shall extend to the giving
of directions to any State as to the manner in which the
executive power thereof is to be exercised;

(b) the power of Parliament to make laws with respect to

any matter shall include power to make laws conferring
powers and imposing duties, or authorising the
conferring of powers and the imposition of duties, upon
the Union or officers and authorities of the Union as
respects that matter, notwithstanding that it is one which
is not enumerated in the Union List.

"358. While a Proclamation of emergency is in operation, nothing

in Article 19 shall restrict the power of the State as defined in
Part III to make any law or to take any executive action which
the State would but for the provisions contained in that part be
competent to make or to take, but any law so made shall, to the
extent of the in 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 as may be specified in the
order.

(1A) While an order made under Clause (1) mentioning any of

the rights conferred by Part III is in operation, nothing in that
Part conferring those rights shall restrict the power of the State
as defined in the said Part to make any law or to take any
executive action which the State would but for the provisions
contained in that Part be competent to make or to take, but any
law so made shall, to the extent of the incompetency, cease to
have effect as soon as the order aforesaid ceases to operate,
except as respects things done or omitted to be done before' the
law so ceases to have effect.

(2) An order made as aforesaid may extend to the whole or any

part of the territory of India.

(3) Every order made under Clause (1) shall, as soon as may be
after it is made, be laid before each House of Parliament.

340. Before dealing with relevant authorities on the meaning and effects
of Article 358 and 359 of the Constitution, I will indicate the special
features and context of the Presidential Order of 27th June, 1975, as
compared with the Presidential Order of 3rd November, 1962. which was
the subject matter of earlier pronouncement of this Court on which
considerable reliance has been placed on behalf of the detenus. In fact,
the next two topics are so connected with the emergency provisions that
there is bound to be a good deal of overlapping between what I have, for
the sake of convenience only, tried to discuss under three heads. Different
heads or names are not infrequently used only to indicate different
aspects of what is really one connected subject matter. Perhaps the last
and concluding topic is wide enough to cover the scope of the whole
discussion.

E. The effect of the Presidential Orders and particularly the order of 21st
June, 1975, on the rights of detenus.

341. The Presidential Order of 3rd November 1962 was issued after the
proclamation of emergency under Article 352(1) on 26th October, 1962.
That proclamation said:
 ...a grave emergency exists whereby the security of India is
threatened by external aggression.

On the other hand, the Presidential Order of 27th June, 1975, with which
we are concerned here was issued under a proclamation which declares
"that a grave emergency exists whereby the security of India is
threatened by internal disturbances".

342. There was also a Presidential proclamation of 3rd December, 1971,

repeating the terms of the proclamation of 26th October, 1962, as under:

In exercise of the powers conferred by Clause (1) of Article 352

of the Constitution, I, V. V. Giri, President of India, by this
Proclamation declare that a grave emergency exists whereby the
security of India is threatened by external aggression.

343. The Presidential Order of 3rd November, 1962, reads as follows:

In exercise of the powers conferred by Clause (1) of Article 359

of the Constitution, the President hereby declares that the right
of any person to move any court for the enforcement of the
rights conferred by Article 21 and Article 22 of the Constitution
shall remain suspended for the period daring 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 ally rule or order made
thereunder.

344. The Presidential Order of 27th June, 1975, runs as follows:

In exercise of the powers conferred by Clause (1) of Article 359

of the Constitution, the; President hereby declares that the right
of any person (including a foreigner) to move any Court for the
enforcement of the rights conferred by Article 14, Article 21 and
Article 22 of the Constitution and all proceedings pending in any
court for the enforcement of the abovementioned rights shall
remain suspended for the period daring which the Proclamations
of emergency made under Clause (1) of Article 352 of the
Constitution on the 3rd December, 1971 and on the 25th June,
1975 are both in force.

(2) This Order shall extend to the whole of the territory of India
except the State of Jammu and Kashmir.
 (3) This Order shall be in addition to and not in derogation of any
order made before the date of this Order under Clause (1) of
Article 359 of the Constitution.

345. The striking differences in the terms of the two Presidential Orders
set out above are:

(1) The Presidential Order of 1962 did not specify Article 14 of

the Constitution, but Article 14, guaranteeing equality before the
law and equal protection of laws to all persons in India, is
mentioned in the 1975 order. To my mind, this does make some
difference between the intentions behind and effects of the two
Presidential Orders.

(2) The Presidential Order of 1962 expressly hedges the

suspension of the specified fundamental rights with the condition,
with regard to deprivations covered by Articles 21 and 22 of the
Constitution that, "if such person is deprived of such right under
the Defence of India, Act, 1962, or any rules or order made
thereunder". In other words, on the terms of the 1962
Presidential Order, the Courts were under a duty to see whether a
deprivation satisfies these conditions or not. They could
adjudicate upon the question whether a detention was under the
Act or a rule made thereunder. On the other hand, the
Presidential Order of 1975 unconditionally suspends the
enforcement of the rights conferred upon "any person including a
foreigner" to move any Court for the enforcement of the rights
conferred by Articles 14, 21 and 22 of the Constitution. The
Courts are, therefore, no longer obliged or able to test the
validity of a detention by examining whether they conform to
statutory requirements. They will have to be content with
compliance shown with forms of the law.

(3) Presidential Order of 1962 makes no mention of pending

proceedings, but the 1975 order suspends all pending
proceedings for the enforcement of the rights mentioned therein.
This further clarifies and emphasizes that the intention behind
the Presidential Order of 1975 was to actually affect the
jurisdiction of Courts in which proceedings were actually pending.
The inference from this feature also is that all similar proceedings
in future will, similarly, be affected.

346. The result is that I think that there can be no doubt whatsoever that
the Presidential Order of 27th June, 1975, was a part of an unmistakably
expressed intention to suspend the ordinary processes of law in those
cases where persons complain of infringement of their fundamental rights
by the executive authorities of the State. The intention of the Parliament
itself to bring about this result, so that the jurisdiction of Courts under
Article 226, in this particular type of cases, is itself affected for the
duration of the emergency, seems clear enough from the provisions of
Section 16A(9) of the Act, introduced by Act No. 14 of 1976, which
received Presidential assent on 25th January, 1976, making Section
16A(9) operative retrospectively from 25th June, 1975.

347. The question before us is : What is the intention behind the

Presidential Order of 27th June, 1975 '? After assigning a correct meaning
to it, we have to determine whether what was meant to be done lay
within the scope of powers vested by Article 359 of the Constitution in the
President. There is no doubt in my mind that the object of the Presidential
Order of 27th June, 1975, by suspending the enforcement of the specified
rights, was to affect the powers of Courts to afford relief to those the
enforcement of whose rights was suspended. A I have already indicated,
this was within the purview of Article 359(1) of the Constitution. Hence,
the objection that the powers of the Court under Article 226 may
indirectly be affected is no answer to the direct suspension of rights which
was bound to have its effect upon the manner in which jurisdiction is or
could reasonably be exercised even if that jurisdiction cannot be itself
suspended for all types of cases. It is enough if the ambit of the power to
suspend under Article 359(1) is such as to make exercise of the
jurisdiction to protect guaranteed fundamental rights not reasonably
possible.

348. Section 16A(9) also appears to me, as held by My lord the Chief
Justice, to make it impossible for Courts to investigate questions relating
to the existence or absence of bona fides at least in proceedings under
Article 226 of the Constitution. It is clear that the validity of Section
16A(9) cannot be challenged on the ground of any violation of Part III of
the Constitution in view of the provisions of Article 359(1A).

349. No previous decision of this Court deals with a situation which

results from the combined effect of a Presidential Order couched in the
language of the Order of 27th June 1975, and a statutory provision, such
as Section 16A(9) of the Act, the validity of which cannot be challenged.
Hence, strictly speaking, earlier decisions are not applicable. I will,
however, consider them under the next heading as considerable argument
has taken place before us on the assumption that these cases do apply to
such a situation.

(F) The Rule of Law as found in our Constitution, and how it operates
during the emergency.
350. As I have indicated earlier in this judgment, the term Rule of Law is
not a magic wand which can be waved to dispel every difficulty. It is not
an Aladin's Lamp which can be scratched to invoke a power which brings
to any person in need whatever he or she may desire to have. It can only
mean, for lawyers with their feet firmly planted in the realm of reality,
what the law in a particular State or country is and what it enjoins. That
law in England is the law made by Parliament. That is why Sir Ivor
Jennings said (See : Law and the Con- situation-III Edn.) that "in England
supremacy of Parliament is the Constitution". And naturally, the
Constitution of a country and not something outside it contains the Rule
of Law of that country. This means that the Rule of Law must differ in
shades of meaning and emphasis from time to time and country to
country. It could not be rigid, unchanging, and immutable like the
proverbial laws of the Medes and Persians. Nevertheless, one has to
understand clearly what it means in a particular context. It cannot be like
some brooding omnipotence in the skies. Its meaning cannot be what
anyone wants to make it. It has to be, for each particular situation,
indicated by the Courts which are there to tell the people what it means.

351. This Court has, in no unmistakable terms, indicated what the

Constitution means and how the Rule of Law embedded in it works even
during Emergencies.

352. A statement of the Rule of Law by Jackson, J., in Youngstown Sheet

& Tube Co. v. Sawyer 343 U.S. 579, 655, quoted with approval by this
Court, in Chief Settlement Commissioner, Rehabilitation Department
Punjab and Ors. etc. v. Om Parkcish and Ors. MANU/SC/0138/1968 :
[1968]3SCR655 @ 661 etc. (at page 661):

With all its defects delays and inconveniences men have

discovered no technique for long preserving free government
except that the Executive be under the law, and that the law be
made by Parliamentary deliberations.

353. It was explained there:

In our constitutional system, the central and most: characteristic

feature is the concept of the rule of law which means, in the
present context, the authority of the law courts to test all
administrative action by the standard of legality. The
administrative or executive action that does not meet the
standard will be set aside if the aggrieved person brings the
appropriate action in the competent court. The rule of law rejects
the conception of the Dual State in which governmental action is
 placed in a privileged position of immunity from control of law.
Such a notion is foreign to our basic constitutional concept.

354. This statement, no doubt, includes the concept of determination by

Courts of the question whether an impugned executive action is within the
bounds of law. However, it presupposes : firstly, the existence of a fixed
or identifiable rule of law which the executive has to follow as
distinguished from a purely policy decision open to it under the wide
terms of the statute conferring a discretionary power to act; and,
secondly, the power of the Courts to test that action by reference to the
Rule.

Even, in Emergencies, provided the power of the Court to so test the

legality of some executive act is not curtailed, Courts will apply the test of
legality "if the person aggrieved brings the fiction in the competent
Court". But, if the locus standi of the person to move the Court is gone
and the competence of the Court to enquire into the grievance is also
impaired by inability to peruse the grounds of executive action or their
relationship with the power to act, it is no use appealing to this particular
concept of the Rule of law set out above. It is just inapplicable to the
situation which arises here. Such a situation is governed by the
emergency provisions of the Constitution. These provisions contain the
Rule of Law for such situations in our country.

355. In Mohd. Yaqub etc. v. the State of Jammu & Kashmir

MANU/SC/0035/1967 : 1968CriLJ977 , a seven Judge bench of this Court
pointed out that, whereas Article 358, by its own force, suspends the
guarantees of Article 19, Article 359(1) has the effect of suspending the
operation of specified fundamental rights (strictly speaking it is
enforcement only which is suspended) so that these concepts cannot be
used to test the legality of executive action. Now, much of what Dicey
meant by the Rule of Law was certainly sought to be embothed in Part III
of our Constitution. If, however, the application of Articles 14, 19, 21 and
22 of the Constitution is suspended, it is impossible to say that there is a
Rule of Law found there which is available for the Courts to apply during
the emergency to test the legality of executive action.

Makhan Singh v. State of Punjab MANU/SC/0039/1963 : 1964CriLJ217 , a

seven Judge decision of this Court was sought to be made a foothold for
several arguments on behalf of the detenus. It, however, seems to me to
have laid down more propositions which demolish various contentions
advanced on behalf of the detenus than those which could assist them.
One main question considered in that case was whether Section 491(1)
(b) of the CrPC could afford a statutory remedy, by an order or direction
in the nature of a writ of Habeas Corpus, at a time when enforcement of
the fundamental right to personal liberty was suspended by the
Presidential Order of 1962 already set out above. The suggestion that a
Common Law remedy by way of writ of Habeas Corpus exists, even after
Section 491 was introduced in the Criminal Procedure Code in 1923, was
negatived. The sweep of Article 359(1) of the Constitution, taking in the
jurisdiction of "any Court", was held wide enough to cover any kind of
relief claimed by a petitioner for the enforcement of a specified
fundamental right. Inter alia, it was held (at p. 821-822):

If Article 359(1) and the Presidential Order issued under it govern

the proceedings taken under Section 491(l)(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 ins release on the ground set 'out by him in ins petition,
the 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 proceedings
under Section 491(1)(b) are in 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 ins specified,
fundamental rights is to suspend the jurisdiction of the Court pro
tanto in that behalf.

This is exactly the interpretation which I have adopted above of Sree

Mohan Chowdhury's case (supra).

356. It was also held in Makhan Singh's case (supra) that, as no attack on
the validity of the Defence of India Act of 1962 and the Rules framed
thereunder, on the ground of violation of fundamental rights, was open
during the emergency, no petition was maintainable on the ground of
such alleged invalidity. It was held (at p. 825-826) there:

therefore, our conclusion is that the proceedings taken on behalf

of the appellants before the respective High Courts challenging
their detention on the ground that the impugned Act and the
Rules are void because they contravene Articles 14, 21 and 22,
are incompetent for the reason that the fundamental rights which
are alleged to have been contravened are specified in the
Presidential Order and all citizens are precluded from moving any
Court for the enforcement of the said specified rights.

356-A. After having decided the questions actually calling for

determination in that case, Gajendragadkar, J., speaking for the majority,
expressed some views on the possible pleas which may still be open to
petitioners in hypothetical cases despite the Presidential Order of 1962,
set out above, passed under Article 359(1). He said (at page 828):

If in challenging the validity of ins detention order, the detenu is

pleading any right outside the rights specified in the order, ins
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 ins
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 ins release on
such a ground cannot be affected by the Presidential Order.

Again, it was observed (at page 828-829):

Take also a case where the detenu moves the Court for a writ of
habeas corpus on the ground that ins 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 or malafide
would not be enough, the detenu will have to prove the
malafides. But in the mala-fides are alleged, the detenu cannot
be precluded from substantiating ins 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).

356-B. The two passages set out above, stating what may be the position
in purely hypothetical cases, are the mainstrays of some of the arguments
for the petitioners. But, none of the Counsel for the petitioners has stated
how these observations are applicable to facts of the case of the
particular petitioner for whom he appears. Assuming, however, that the
hypothetical cases indicate good grounds on which a Habeas, Corpus
petition could be allowed even in an emergency, it was certainly not
decided in Makhan Singh's case (supra) what the process could be for
ascertaining that one of these grounds exist. If that process involves a
consideration of evidence in support of a plea, such as that of mala fides,
in proceedings under Article 226,, the most important evidence would be
grounds of detention. These grounds constituted the lever which could
have been and was used in the past by Courts to reach decisions on
various pleas, such as the plea that the order was not passed after due
application of mind to the facts of the detenu's case or that the
satisfaction reached was not with regard to legally relevant grounds at all.
No such means are available now. This difficulty was certainly not in the
way at the time of the decision in Makhan Singh's case (supra).

357. I am, therefore, of the opinion that pleas which involve any
adduction of evidence would, at any rate, be entirely excluded by the
combined effect of the terms of the Presidential Order of 27th June, 1975,
read with the amended provisions of Section 16A(9) of the Act. A perusal
of S. Pratap Singh v. State of Punjab MANU/SC/0272/1963 :
(1966)ILLJ458SC , will show the kind of evidence which often becomes
necessary to justify a plea of "malice in fact". Pleas about vires of the
detention order itself (e.g. whether it is based on irrelevant grounds or
was not passed after due application of mind) often require investigation
of questions of fact involving scrutiny of actual grounds of detention which
is hit by the embargo against an assertion of a right to move for
enforcement of the right to personal freedom and prohibition against
disclosure of grounds. So long as the executive authorities of the State
purport to act under the Act., their preliminary objection against further
hearing will prevail unless, of course, the officer purporting to detain had,
in fact, not been invested at all with any authority to act in which case the
detention would, in my opinion, be on the same footing as one by a
private person who has no legal authority whatsoever to detain. But, such
a defect has to be apparent either on the face of the order or admitted in
the return. Moreover, it can be cured by an adoption of the order by the
State.

358. Detentions which not only do not but could not possibly have any
apparent, ostensible., or purported executive authority of the State
whatsoever to back them, could be equated with those by private
persons. The suspension of enforcement of specified fundamental rights
operates only to protect infringements of rights by the State and its
authorised agents, acting or purporting to act, in official capacities which
they could and do hold. A claim to an order of release from such a
patently illegal detention, which is not by the State or on its behalf, could
be enforced even during the current emergency. But there is no such case
before us. All the cases before us are, as far as I know, of detentions by
duly empowered official under, prima fade, good orders. The possibility,
however, of so unlikely a hypothetical case where there is a lack of legal
power to act, which could be easily removed by the executive authorities
of the State concerned themselves, whenever they desire to do so, is only
mentioned to illustrate my view that the test of legality, applied by
Courts, is not entirely abrogated and abandoned in the current
emergency. But, it can be only one which should be applicable without
going into facts lying behind the return. The presumption of validity of a
duly authenticated order of an officer authorised to pass it is conclusive in
Habeas Corpus proceedings during the current emergency.

359. State of Madhya Pradesh and Anr. v. Thakur Bharat Singh

MANU/SC/0043/1967 : [1967]2SCR454 was another decision of the
Constitution Bench of this Court relied upon strongly on behalf of detenus.
In that case, an order prohibiting a petitioner from residing in a specified
area under Section 3(1) (b) of the Madhya Pradesh Public Security Act,
1959, which was found to be void, because the provision infringed Article
19 of the Constitution, was held to be challengeable during an emergency
despite the provisions of Article 358 of the Constitution. The ground of the
decision was that, although, the empowering provision could not have
been challenged if it was contained in an enactment made during the
emergency, yet, as the provision was made by an Act passed at a time
when Article 19 was operative,, the invalidity of the provision could be
demonstrated despite the existence of the emergency. I do not think that
there is any such case before us. It seems to me to be possible to
distinguish the case on the ground that it was a case of patent voidness
of the order passed so that the principle of legality, which is not
suspended, could be affirmed even apart from enforcement of a specified
fundamental right. I think it was placed on such a footing by Shah J.,
speaking for this Court.

360. State of Maharashtra v. Prabhakar Pandurang Sangzgiri and Anr.

[1966] SU S. C. R- 702, another decision of the Constitution Bench of this
Court, was also cited. There, an illegal order prohibiting the sending out
of jail by a detenu of a book on matters of scientific interest only, for
publication, was quashed by a High Court, under Article 226 of the
Constitution, despite the Presidential order under Article 359 of the
Constitution, on the ground that there was no condition at all in the
Bombay Conditions of Detention Order, 1951, authorising the Government
of Maharashtra to prohibit the publication of a book of purely scientific
interest just because the petitioner happened to be detained under the
Defence of India Rules, 1962. The High Court's view was affirmed by this
Court. This case has nothing to do with preventive detention. It is a case
in which this Court held that an ultra vires order could be set aside. This
could be done under the residuary jurisdiction of the High Court, which
could operate for "any other purpose". The mere existence of the
emergency could not, it was held, suspend this power. The test applied
was of bare illegality outside Article 19 of the Constitution.

361. In Dr. Ram Manohar Lohia v. State of Bihar and Ors.

MANU/SC/0054/1965 : 1966CriLJ608 , this Court did, in a petition under
Article 32 of the Constitution apply the test of a satisfaction required on
relevant grounds, by Rule 30, Sub-rule 1, Defence of India Rules, 1962,
as a condition precedent to detention, because the grounds of detention
were mentioned in the detention order itself so that they could be used to
determine whether the detention order fell within the purposes of the Act.
The writ petition was allowed. The alleged satisfaction of the District
Magistrate, who was the detaining authority, was found, on the ground
given for detention, to fall outside Rule 30. It was held that the
Presidential Order under Article 359 was not intended to condone
violations of the Defence of India Act or the rules made thereunder and
did not authorise ultra vires or mala fide detentions. It was pointed out
here that satisfaction about the need to detain in the interests of "law and
order" was not the same thing as one in the interests of "public order". In
this case, a well-known distinction between "public order" and "law and
order", was drawn by Hidayatullah, J., in the following terms:

It will thus appear that just as "public order" in the rulings of the
Court (earlier cited) was said to comprehend disorders of less
gravity than those affecting "security of State", "law and order"
also comprehends disorders of less gravity than those affecting
"public order". One has to imagine three concentric circles. Law
and order represents the largest; circle within which is the next
circle representing public order and the smallest circle represents
security of State. It is then easy to see that an act may affect law
and order but not public order just as an act may affect public
order but not security of the State. By using the expression
"maintenance of law and order" the District Magistrate was
widening ins own field of action and was adding a clause to the
Defence of India Rules.

362. I take the decision of this Court in Dr. Lohia's case to mean that. if
the order, on the face of it., is bad and does not satisfy the requirements
of the law authorising detention, the detenu may be released. Sarkar, J.,
pointed out there:

The satisfaction of the Government which justifies the order

under the rule is a subjective satisfaction. A court cannot enquire
whether grounds existed which would have created; that
satisfaction on which alone the order could have been made in
the mind of a reasonable person. If that is so--and that indeed is
what the respondent State contends--it seems to me that when
an order is on the face of it not in terms of the rule, a court
cannot equally enter into an investigation whether the order of
detention was in fact, that is to say, irrespective of what is stated
in it, in terms of the rule. In other words, in such a case the
State cannot be heard to say or prove that the order was in fact
made., for example, to prevent acts prejudicial to public order
 which would bring it within the rule though the order does not
say so. To allow that to be done would be to uphold a detention
without a proper order.

363. The case was also decided on a consideration of evidence on the

ground that there was an area of enquiry opened up by the grounds given
for entry by the Court. I do not know how any decision could have been
given in Dr. Lohia's case if grounds of detention were not found to be bad
on the very face of the order stating those grounds, or, it there was no
door left open for judicial scrutiny due to a provision such as Section
16A(9) of the Act before Us. Thus, the law considered and applied in Dr.
Lohitfs case was different from the law we have to apply under a different
set of circumstances as explained above.

364. In K. Anandan Nambiar and Anr. v. Chief Secretary, Government of

Madras and Ors. MANU/SC/0060/1965 : 1966CriLJ586 , a writ petition
under Article 32 of the Constitution by a Member of Parliament during the
currency of an emergency and a Presidential Order, was dismissed
although ins locus standi to maintain the petition was affirmed on the
following ground:

The petitioners contend that the relevant Rule under which the
impugned orders of detention have been passed, is invalid on
grounds other than those based on Articles 14, 19, 21 and 22.,
and if that plea is well-founded, the last clause of the Presidential
Order is not satisfied and the bar created by it suspending the
citizens' fundamental rights under Articles 14, 21 and 22 cannot
be pressed into service.

365. Apparently, the view adopted in Nambiar's case (supra) was that to
question the validity of the provision under which the detention order is
made could not be equated with an allegation of infringement of
procedure established by law. Moreover, this decision was also in a
different context with a different set of applicable provisions. None of the
cases before us involves the assertion that the power under which the
detention order purports to be made itself did not exist in the eye of law.

366. In Durga Dass Shirali v. Union of India and Ors.

MANU/SC/0092/1965 : 1966CriLJ812 , a Habeas Corpus petition against
a detention order under Rule 30 of the Defence of India Rules, 1962, was
again dismissed. But, it was held that Article 358 and the Presidential
Order under Article 359(1) did not debar the petitioner from assailing ins
detention on the ground of mala fides or on the ground that any of the
grounds mentioned in the order of detention is irrelevant. This case is also
distinguishable on the ground that the context., from the point of view of
the applicable law. was different.

367. In Jai Lal v. State of West Bengal [1966] Supply. S. C. R. p. 4, 64,

this Court, after taking evidence by affidavits into account and
considering the pleas of mala fides, rejected the petitioner's case
although the petitioner was held, on the strength of earlier decisions of
this Court, entitled to raise the pleas of mala fides despite the
Proclamation of emergency and the Presidential order. Again, the context
and the applicable law there were different.

368. We, however, see that, despite the Proclamation of emergency and a
Presidential Order under Article 359(1), this Court has held that High
Courts, in exercise of their supervisory jurisdiction, could entertain
Habeas Corpus petitions and enforce the principle of legality against the
detaining authorities. No doubt, the executive and the legislative organs
of the State were fully aware of the nature and effect of the decisions of
this Court. It is, therefore., not surprising that, by means of a differently
phrased Presidential Order of 17th June. 1975, and the amendment in the
Act. introducing rather drastic provisions of Section 16A of the Act, the
intention has been made clear that preventive detention should be a
matter controlled exclusively b\ the executive departments of the State.

369. It was contended by Mr. Tarkunde that the Rule of Law under our
Constitution is embothed in the principle of Separation of Powers. It is
very difficult for me to see the bearing of any such doctrine on a pure and
simple question of determination of the meaning of constitutional and
statutory provisions couched in words which leave few doubts unresolved.
However, as arguments based on this doctrine were advanced, I will deal
with the manner in which, I think, laws relating to preventive detention fit
in with the extent to which our Constitution recognises the doctrine.

370. In Rai Sahib Ram Jawaya Kapur and Ors. v. The State of Punjab
MANU/SC/0011/1955 : [1955]2SCR225 , Mukherjea, C.J., speaking for
this Court, said:

The Indian Constitution has not indeed recognised the doctrine of

separation of powers in its absolute rigidity but the functions of
the different parts of branches of the Government have been
sufficiently differentiated and consequently it can very well be
said that our Constitution does not contemplate assumptions, by
one organ or part of the State, of functions that essentially
belong to another. The executive indeed can exercise the powers
of departmental or subordinate legislation when such powers are
delegated to it by the legislature.
He further added:

Our Constitution, though federal in its structure, is modelled on

the British Parliamentary system where the executive is deemed
to have the primary responsibility for the formulation of
governmental policy and its transmission into law though the
condition precedent to the exercise of this responsibility is its
retaining the confidence of the legislative branch of the State.

371. If an order of preventive detention is not quasi-judicial, as it cannot

be because of the impossibility of applying any objective standards to the
need for it in a particular case, there could be no question of violating any
principle of separation of powers by placing preventive detention
exclusively within the control of executive authorities of the State for the
duration of the emergency. That seems to me to be the effect of the
emergency provisions of the Constitution and the amendments of the Act
already dealt with by me.

372. Commenting upon Liversidge's case (supra) in "The Law Quarterly

Review" (1942) (Vol. 58-p. 2)., the celebrated jurist and authority on
English Constitutional history and law, Sir William Holds worth, supporting
majority decision there, opined:

The question turns not, as Lord Atkin says upon whether the
common law or the statute law has postulated a 'reasonable'
cause for a decision or an action, but upon the question whether
or not the decision or the action to be taken on a reasonable
cause raises a justiciable issue. Clearly the question whether a
person is of hostile origin or associations so that it is necessary to
exercise control over him, raises, not a justiciable., but a political
or administrative issue.

He added:

On principle this distinction seems to me to be clearly right. If the

issue is justiciable, if, that is, it raises an issue within the legal
competence of the Court to try, the Court can decide on the facts
proved before it whether a cause or a suspicion is reasonable, for
it knows: the law as to what amounts in the circumstances to a
cause or a suspicion which is reasonable. If, on the other hand,
the issue is not justiciable, if, that is, it turns, not on a knowledge
of the law as to what amounts in the circumstances to a
reasonable cause or suspicion, but on political or administrative
considerations, it can have no knowledge of the weight to be
attached to facts adduced to prove the reasonableness or
 unreasonableness of the cause or suspicion...... for it has neither
the knowledge nor the means of acquiring the knowledge
necessary to adjudicate upon the weight to be attached to any
evidence which might be given as to the existence of
circumstances of suspicion or as to the reasonableness of belief.
Since, therefore, it is impossible to apply an objective standard
through the agency of the Courts, the only possible standard to
be applied is the subjective standard, so that the Secretary of
State's statement that he had a reasonable cause for ins belief
must be conclusive.

373. If the meaning of the emergency provisions in our Constitution and

the provisions of the Act is clearly that what lies in the executive field, as
indicated ..above,, should not be subjected to judicial scrutiny or judged
by judicial standards of correctness, I am unable to see how the Courts
can arrogate unto themselves a power of judicial superintendence which
they do not, under the law during the emergency, possess.

374. Dean Roscoe Pound, in the Green Foundation Lectures on "Justice

According to Law" (Yale University Press, 1951) begins ins answer to the
question as to what justice is by a reference" to the posting Pilate, who
would not stay for the answer because he knew that philosophers
disagreed so much, in their answers, that there could be no completely
satisfactory answer. He divides justice itself into three heads., according
to the three types of bodies or authorities which could administer it, and
discusses the advantages and disadvantages of each : Legislative,
Executive, Judicial. He rejects "Legislative Justice", said to be most
responsive to popular will, as too "uncertain, unequal, and capricious". He
said that its history, even in modern times, was filled with "legislative
lynchings"., and that this kind of justice was too susceptible to "the
influence of personal solicitation, lobbying, and even corruption", and
subject to guests of passion, prejudice, and partisanship. He thought that
executive or administrative justice, which becomes inevitable in carrying
out vast schemes of modern socialistic control and planning of economic,
social, and cultural life of the people by the State was also, despite its
own mechanisms of control against misuse of power., fraught with serious
dangers indicated by him. Finally, Dean Pound finds judicial justice,
though not entirely immune from error--and, sometimes, grievous and
costly error--to be superior to the other two types of justice despite its
own inherent shortcomings as compared with executive or administrative
justice for special types of cases.

375. Now, the question before us is not whether Courts should apply the
high standards of "judicial justice" to the facts of each individual case
which are not before us for consideration at all. The question) before us is
purely one of the interpretation of laws as we find them. If, on a correct
interpretation of the legal provisions, we find that the jurisdiction of
Courts was itself meant to be ousted, for the duration of the emergency,
to scrutinise the facts or reasons behind detention orders purporting to
have been made under the Act, because the judicial process suffers from
inherent limitations in dealing with cases of this type, we are bound, by
the canons of "judicial justice" itself, to declare that this is what the laws
mean.

376. It appears to me that it does not follow from a removal of the

normal judicial superintendence, even over questions of vires, of
detention orders, which may require going into facts behind the returns,
that there is no Rule of Law during the emergency or that the principles of
ultra vires are not to be applied at all by any authority except when, on
the face of the return itself, it is demonstrate in a Court of Law that the
detention does not even purport to be in exercise of the executive power
or authority or is patently outside the law authorising detention. It seems
to me that the intention behind emergency provisions and of the Act is
that,, although such executive action as is not susceptible to judicial
appraisement, should not be subjected to it, yet, it should be honestly
supervised and controlled by the hierarchy of executive authorities
themselves. It enhances the powers and, therefore, the responsibilities of
the Executive.

377. A maxim of justice is sometimes said to be : "Let the heavens fall

but justice must be done ". As applied to judicial justice, it means that
justice must accord with the highest standards of objective, impartial,
unruffled dictates of a clear judicial conscience working "without rear or
favour, affection or ill-will". It does not mean that the object of "judicial
justice" is either to make "the heavens fall" or that it-should be oblivious
to consequences of judicial verdicts on the fate of the nation. It fully
recognises the legal validity of the principle adopted by the English House
of Lords in both Saaiq's case (supra) and Liversidge's case (supra) :
"Salus Populi Est Supreme Lex" (regard for the public welfare is the
highest law). This is the very first maxim given Broom's Legal Maxim
under the first head : "Rules founded on public policy" (See Broom's
"Legal Maxims" p. 1).

378. It is not my object to animadvert here at length on any weaknesses

in our legal or judicial system. I would., however, like to point out that
judicial justice can only be "justice according to law". It tends more often
to accord with legal justice than moral justice. Not only are the fact
finding powers of Courts limited by rules of evidence and procedure, but
the process of fact finding and adjudication can miss their objects due to
the buying power of money over venel witnesses and the capacity of the
wealthy to secure the best forensic talents in the country even if we do
not take into account the liability of judges, like the) rest of human
beings, to err. Ends of justice can be frustrated by all kinds of abuses of
the processes of Courts.

379. The machinery of executive justice, though not hide-bound by

technical rules of evidence and procedure, can also be and often is
inordinately dilatory. Its wheels can be clogged by red-tape and by
corrupt clerical underlings if their palms are not greased by honest
citizens. Even those in the upper echelons of the bureaucracy can be
sometimes hopelessly unable to see the true objects of an administrative
scheme or of the policy embodied in a statute. They tend to be more
anxious to 'please their superiors than to do justice so that matters in
which executive heads may not get interested are liable to be neglected
for years and even forgotten, whereas others, in which they are
interested, received speedy attention. They are not even aided by lawyers
who, whatever else may be said about them, have undoubtedly
imagination, courage, independence, and devotion to their client's
interests. In any case, executive justice lacks the appearance of
detachment. Justiciable disputes between the State and the citizen, on
principles of natural justice, require independent authorities for their
resolution. It is for this reason that Article 226 of the Constitution places
administrative action and inaction, even at the highest levels, under
judicial superintendence, when it impinges on rights of persons, although
this may have given rise to problems of its own either due to misuse by
litigants of the powers of High Courts under Article 226 of the Constitution
or want of clarify in the drafting of our statutes or the difficulties
experienced by the executive officers of Government in understanding the
laws or the manner in which their own dirties are to be carried out.

380. Considerations, such as those mentioned above, arising out of

alleged carelessness with which, according to the learned Counsel for the
detenus, detentions are sometimes ordered, were placed before us so
that we may not deny powers of rectification of apparent errors of
detaining officers to High Courts. It was stated by one learned Counsel
that a detention order was once issued against a person who was dead.
Obviously, no detention order could be executed against a dead person
and no writ petition could be moved on behalf of such a person. I have,
however., no doubt, that the machinery of the preventive detention is not
so defective as to prevent executive authorities at the highest levels from
doing justice in appropriate cases where real injustice due to
misrepresentations or mis-apprehensions of fact is brought to their
notice. Not only are the highest executive authorities, under whose
supervision the administration of preventive detention laws is expected to
take place, better able than the High Courts, acting under Article 226 of
the Constitution, to go into every question of fact and are in a much
better position to know all relevant facts, but their knowledge of the
meaning of laws to be administered and the policies underlying them
could not be less, even if they are not better, known to them than to the
High Courts on such a matter as preventive detention. As already
indicated, it raises essentially matters of policy. Courts cannot decide
what individuals with what kind of associations and antecedents should be
detained. In some cases., the associations and affiliations of individuals
with groups or organisations may certainly be matters of common public
knowledge. But, it is only the membership and associations of persons
which may be matters of public knowledge. The nature of information,
and the manner in which individuals or organisations concerned may do
something, which may constitute a danger to the security of the State,
are matters of appraisement of situations and policies on which
information could certainly not be broadcast.

381. I, therefore, think that a challenge to the validity of Section 16A(9)

based either on the submission that grounds for detention do not call for
secrecy or that the provision is an unwarranted invasion of judicial power,
even in an emergency, is not well-founded. I will indicate below the
safeguards which exist in the Act itself for obtaining redress on the
executive side in cases' of preventive detention. As was held by this Court
in Ram Jawaya Kapur's case (supra), there is no such strict separation of
powers under our Constitution as one finds in the American Constitution.
No particular provision of the Constitution could be pointed out in support
of the proposition that preventive detention is a matter in which judicial
superintendence must necessarily be preserved as a part of the doctrine
of separation of powers.

382. Section 3., sub. sec. 3 of the Act shows that the detaining officer has
to submit a report forthwith on a case of preventive detention, together
with grounds of detention and particulars of the case, for the approval of
the State Government. The detention order itself, unless approved by the
State Government, lapses automatically after 12 days. In special cases,
covered by Section 8 of the Act, the proviso to Section 3. sub. sec. 3,
makes the initial order, subject to the approval of the State Government.,
operative for 22 days. In cases covered by Section 16A(2) and (3) of the
Act, in which no grounds of detention are to be supplied to the detenu,
the State Government has to review and confirm the order if the
detention is to, continue beyond 15 days. Section 14 of the Act provides
for revocation of detention orders without prejudice to the provisions of
Section 21 of the General Clauses Act, 1897. The power of revocation
may be exercised not only by the detaining officer concerned, but by the
State Government or the Central Government also. Temporary release of
persons detained is also provided for by Section 15 of the Act on the
order of the appropriate Government, so as to prevent undue hardship
and to meet special contingencies. The provisions of Article 353(a) of the
Constitution also enable the Union Government to issue directions to a
State Government relating to the manner in which a State's executive
power is to be exercised during the emergency. Means of redress, in
cases such as those of mistaken identity or misapprehension of facts or
detentions due to false and malicious reports circulated by enemies, are
thus still open to a detenu by approaching executive authorities. There is
no bar against that. What is not possible is to secure a release by an
order of a Court in Habeas Corpus proceedings after taking the Court
behind a duly authenticated prima facie good return.

383. An argument before us, to which I would like to advert here, was
that, notwithstanding the emergency provisions., some undefined or even
defined principles of Rule of Law, outside the emergency provisions, can
be enforced by the High Courts in exercise of their powers under Article
226 of the Constitution because the Rule of Law has been hold by this
Court to be a part of the inviolable ''basic structure" of the Constitution. It
was submitted that, as this basic structure was outside even the powers
of amendment of the Constitution under Article 368 of the Constitution, it
could not be affected by emergency provisions or by provisions of the Act.
We were asked to atleast interpret the emergency provisions and the Act
in such a way as to preserve what was represented to be the "Rule of
Law" as a part of the basic structure of the Constitution.

384. It seems to me that the theory of a "basic structure" of the

Constitution cannot be used to build into the Constitution an imaginary
part which may be in conflict with Constitutional provisions, The
Constitution cannot have a base cut away from the super-structure.
Indeed, as explained above, it seems to me that the emergency
provisions could themselves be regarded as part of the basic structure of
;he Constitution. At any rate, they are meant to safeguard the basis of all
orderly Government according to law.

385. Speaking for myself, I do not look upon the theory of a basic
structure of the Constitution as anything more than a part of a well-
recognised mode of construing a document. The Constitution,, like any
other document, has to be read and construed as a whole. This is the
common principle which was applied, though in different ways and with
differing results, both by Judges taking the majority as well as minority
views in Kcmvananda Bfiarti's case (supra). Some of the learned Judges
thought that, by an application of this rule, the scope of the power of
amendment, contained in Article 368 of the Constitution, was limited by
certain principles which, though not expressly laid down in Article 8, could
be read into the word "amendment" as implied limitations upon powers
under Article 368. On the other hand, other learned Judges (including
myself) took the view that, considering the provisions of the Constitution
as a whole, the powers of amendment of the Constitution in Article 368,
which operated on all parts of the Constitution itself and embraced even
the power of amending Article 8 of the Constitution, could not reasonably
be so limited. The theory, therefore, was nothing more than a method o;
determining the intent behind the constitutional provisions. It could not
and did not build and add a new part to the Constitution.

386. It was then urged that want of bona fides was expressly left open for
determination by Courts even in an emergency in Liversidge's case. It
must no:, however, be forgotten that Liversidge's case was not u decision
upon a habeas corpus proceeding, but, it came to the House of Lords at
an interlocutory stage of a suit for damages for false imprisonment when
Liversidge was denied access to particulars of grounds of ins detention.
The question considered there was whether he could-ask for them as a
matter of right. The House of Lords denied him that right.

387. In Greene's case (supra)., which was heard with Liversidge's case
(supra) by the House of Lords, the decision was that the return made on
behalf of the Secretary of State could not be questioned. It is true that
even in Greene's case (supra), a theoretical exception was made: for a
case of want of bona fides. I call it "theoretical" because such a case is
perhaps not easily conceivable in England. It also requires some
explanation as to what could be meant by holding that a return is
"conclusive", but the bona fides of the order can be challenged. The
explanation seems to me to be that want of bona fides or "malice in fact"
was placed on the same footing as fraud, which nullifies and invalidates
the most solemn proceedings. It may, however, be pointed out that, in
Greene's case (supra), it was not held that mala fides or any other
invalidating fact could be proved during the emergency in habeas corpus
proceedings. An explanation of an almost forma exception for a case of
want of bona fides could be that the reservation of such a plea was meant
only for such proceedings in which "malice in fact" could reasonably be
gone into and adjudicated upon. The position before us, however., is very
clear. Section 16A(9) imposes a bar which cannot be overcome in Habeas
Corpus proceedings. In addition, a specific suspension or enforcement of
the right of personal freedom against executive authorities places the
presumption arising from a duly authenticated order of a legally
authorised detaining officer on a richer footing than a merely ordinary
rebut table presumption for purposes of proceedings under Article 226 of
the Constitution. These are, as already indicated, summary proceedings.

388. I may point out here that the term "mala fide" is often very loosely
used. Even in England, the scope of malice is wide enough to include both
"malice in law" and "malice in fact". Lord Haldane in Shearer v. Shields
[1914] A.c. 808, said:

Between 'malice in fact' and 'malice in law' there is a broad

distinction which is not peculiar to any system of jurisprudence.
The person who inflicts a wrong or an injury upon any person in
contravention of the law is not allowed to say that he did so with
an innocent mind. He is taken to know the flaw and can only act
within the law. He may, therefore, be guilty of 'malice in law',
although., so far as the state of ins mind was concerned he acted
ignorantly, and in that sense innocently. 'Malice in fact' is a
different thing. It means an actual malicious intention on the part
of the person who has done the wrongful act.

389. Now, applying the broad concepts of "malice in law", as stated

above, it has often been argued before us, in cases of preventive
detention, that the burden is upon the executive authorities of proving the
strict legality and correctness of every step in the procedure adopted in a
case of deprivation of personal liberty. To ask the executive authorities to
satisfy such a requirement,, in accordance with what has been called the
principle in Eshuqbayi Eleko's case (supra) would be in my opinion., to
nullify the effect of the suspension of the enforceability of the procedural:
protection to the right of personal freedom. To do so is really to make the
Presidential Order under Article 359(1) of the Constitution ineffective.
therefore, no question of "malice in law" can arise in Habeas Corpus
proceedings when such a protection is suspendend. As regards the issue
of "malice in fact", as T have already pointed out, it cannot be tried at all
in a Habeas Corpus proceeding although it may be possible to try it in a
regular suit the object of which is not to enforce a right to personal
freedom but only to obtain damages for a wrong done which is not
protected by the terms of Section 16 of the Act. The possibility of such a
suit should be another deterrent against dishonest use of these powers by
detaining officers.

390. Mr. Mayakrishnan, learned Counsel for one of the detenus,

contended that state of emergency, resulting from the Presidential Order
of 27th June, 1975, cannot be equated with a situation in which Martial
Law has been proclaimed. The argument seems to be that if the
jurisdiction of Courts to enforce the right to personal freedom is affected,
the resulting position would be no different from that which prevails when
Martial Law is declared.

391. There is no provision in our Constitution for a declaration of Martial

Law. Nevertheless, Article 34 of the Constitution recognises the possibility
of Martial Law in this country. It provided:
 34. Notwithstanding anything in the foregoing provisions of this
Part, Parliament may by law indemnify any person in the service
of the Union of a State or any other person in respect of any act
done by him in connection with the maintenance or restoration of
order in any area within * the territory of India where martial law
was in force or validate any sentence passed, punishment
inflicted, forfeiture ordered or other act done under martial law in
such area.

392. As there is no separate indication in the Constitution of conditions in

which Martial Law could be "proclaimed", it could be urged that a
Presidential Order under Article 359(1) has a similar effect and was
intended to provide for situations in which Martial Law may have to be
declared in any part of the country. But, a Presidential Order under Article
359(1) of the Constitution would, ordinarily, have a wider range and effect
throughout the country than the existence of Martial Law in any particular
part of the country. The Presidential Proclamations are meant generally to
cover the country as a whole. "Martial Law" is generally of a locally
restricted application. Another difference is that conditions in which what
is called "Martial Law" may prevail result in taking over by Military Courts
of powers even to try offences; and, the ordinary or civil Courts will not
interfere with this special jurisdiction under extraordinary conditions.
Such a taking over by Military Courts is certainly outside the provisions of
Article 359(1) of the Constitution taken by itself. It could perhaps fall
under Presidential powers under Articles 53 and 73 read with Article 355.
Article 53(2) lays down:

53(2) Without prejudice to the generality of the foregoing

provision the supreme command of the Defence Forces of the
Union shall be vested in the President and the exercise thereof
shall be regulated by law.

And, Article 355 provider,:

It shall be the duty of the Union to protect every State against

external aggression and internal disturbance and to ensure that
the government of every State is carried on in accordance with
the provisions of this Constitution.

A similarity in results, however, between Martial Law and conditions

resulting from a Presidential Order under Article 359(1) is that, if no
provision is made by an Act of Indemnity, the civil liabilities of military or
civil officers, acting mala fide and outside the law, are not removed ipso
facto by either Martial Law or the Proclamation of emergency.
393. In Halsbury's Laws of England (4th Edn. vol. 8, para 982, page 625),
an explanation of Martial Law, as it is known in British Constitutional Law,
is given as follows:

The Crown may not issue commissions in tune of peace to try

civilians by martial law; but when a state of actual war, or of
insurrection, not or rebellion amounting to war exists, the Crown
and its officers may use the amount of force necessary in the
circumstances to restore order. This use or force is sometimes
termed "martial law". When once a state of actual war exists the
civil courts have no authority to call in question the actions of the
military authorities, but it is for the civil courts to decide, if their
jurisdiction is invoked, whether a state of war exists which
justifies the application of martial law. The powers such as they
are, of the military authorities cease and those of the civil courts
resumed ipso facto with the termination of the State of war; and
in the absence of an act of Indemnity, the civil courts may inquire
into the 24--833SCIJ76 legality of anything done during the state
of war. Even if there is an Act of Indemnity couched in the usual
terms, malicious acts will not be protected. Whether this power of
using extraordinary measures is really a prerogative of the Crow,
or whether it is merely an example of the common law right and
duty of ail, ruler and sublet alike, to use the amount of free
necessary to suppress disorder, is not uite free from doubt. It is
however, clear that so-called military courts set up under martial
law are not really courts at all and so an order of prohibition will
not issue to restrain them. Probably the correct view to take of
martial law itself is that it is no law at all.

394. It is not at all necessary for the purposes of the decision of cases
before us to determine how proclamations of emergency are related to
the more drastic conditions in which ' Martial Law" if is law at all, may
come into existence due to the very necessities of a situation It is evident
that the emergency provisions of our Constitution with situate. It is
evident that the emergency provisions of our Constitution are very
comprehensive.. They are intended not merely to deal with situations
when actual out-break of hostilities with another country has taken place
and a war is going on but also when the country's peace, prowess,
security and independence are threatened by dangers other internal or
external or both. Whether there is a "grave emergency", falling within
Article 352(1), is a matter entirely for the President to determine.

395. Attempts were made by some Seamed Counsel to paint very gloomy
pictures of possible consequences if this Court held that no relief was
open to petitioners against deprivation of their personal when a number
of cases of serious misuse of their powers by the detaining officers were
said to be in evidence. do not think that it is either responsible advocacy
or the performance of any partriotic or public duty to suggest that powers
of preventive detention are being misused in the current emergency when
our attention could not be drawn to the allegations in a single case even
by way of illustration of the alleged misuse instead of drawing upon one's
own imagination to conjure up phantoms. In fact I asked some learned
Counsel to indicate the alleged facts of any particular case before us to
enable us to appreciate how the power of preventive detention had been
misused. Mostly, the answers given were that the facts of the cases were
not before us at this stage which is true. But. it is significant that no case
of alleged "malice in fact" could be even brought to our notice.

396. It seems to me that Courts can safely act on the presumption that
powers of preventive detention are not being abused. The theory that
preventive detention serves a psycho-therapeutic purpose may not be
correct. But the Constitutional duty duty of every Govt. faced with threats
of wide spread disorder and chaos to meet it with appropriate steps
cannot be denied. And if one can refer to a member of common
knowledge appearing from newspaper reports a umber of detenus
arrested last year have already been released. This shows that the whole
situation whole situation is periodically reviewed. Furthermore we under
stand that the care and concern bestowed by the State authorities ' upon
the welfare of detenus who are well housed ,we fed and well treated., is
almost maternal Even parents have to take appropriate preventive action
against these children who may threaten to burn down the house they
live in.

397. If there are, under our Constitution some obligations or overriding

powers or duties vested in superior Courts as learned Counsel for the
detenus seemed to be contending for , to enforce the claims of
constitutionality quite apart from the suspended powers and duties of
Courts to enforce fundamental rights. I an sure that the current
emergency, justified not only the rapid improvements due to it in the
seriously dislocated national economy and discipline but also by the grave
danger of tomorrow, apparent to those who have the eyes to see them,
averted by it, could not possibly provide the occasion for the discharge of
such powers, if any, in the courts set up by the they must always be
guided by the principle already indicated: "Sauls Populi Supreme Lex" .
Indeed, as I understand even the majority view in Golaknath's
cases(supra), it was that deposit the invalidity of constitutional
amendments of provisions containing fundamental rights, to, to give
effect to the view would be contrary to this principle. The case for the
detenus before us, 'however fails on preliminary hurdles. Despite
strenuous efforts, their learned Counsel were quite unable to show any
constitutional invalidity, directly or indirectly, in any of the measures
taken, whether legislative or executive, by or on behalf of the State.

398. The real question for determination by us relates only to the

meaning and effect of the Constitutional and statutory provisions
indicated above which are applicable during the current emergency. A
large number of other questions including even some quite remotely
connected with the real question involved were permitted by this Court t
to be argued because of the went concern and anxiety of this Court when
problems relating to neuronal liberty are raised. In the interpretation of
the relevant provisions adopted by me the validity of detention orders
purporting to be passed under the Act cannot be challenged in Habeas
Corpus proceedings.. Judicial proceedings in criminal Courts, not meant
for the enforcement of fundamental rights, are not either at the initial or
appellate or revisional stages covered by the Presidential order of 1975.
Habeas Corpus petitions are not maintainable in such cases on another
ground. It is that the prisoner is deemed to be in proper custody under
orders of a Court.

399. My answer to the two questions set out in the beginning of this
judgment.. which I compressed into one is as follows:

400. A prima facie valid detention order that is to say, one duly
authenticated and passed by an officer authorised to make it recording
purported satisfaction to detain the petitioner under the maintenance of
Internal Security Act. Which is operative either before or after its
confirmation by the Government is a complete answer to a petition for a
writ of Habeas Corpus. Once such an order is shown to exist in response
to a notice for a writ of Habeas Corpus, the High Court cannot inquire into
its validity or vires on the ground of either mala fides of any kind or of
non-compliance with any provision of the Maintenance of internal Security
Act in Habeas Corpus proceedings. The preliminary objection of the State
must be accepted in such a case.

401. The result is that the appeals before us are allowed and the
judgment and order of the High Court in each case is set aside. The High
Court concerned will itself now pass an order on each petition in
accordance with law as laid down by this Court and the provisions of
Article 359(1) of the Constitution.

Y.V. Chandrachud, J.

402. During the last few years, many questions of far-reaching

constitutional importance have engaged the attention of this Court but
these appeals, perhaps, present problems of the gravest magnitude. They
involve an adjustment between two conflicting considerations, the liberty
of the individual on one hand and exigencies of the State on the other.
This balancing of the most precious of human freedoms--the liberty of the
subject--as against the most imperative of the State's obligations--the
security of the State--gives rise to multi-dimensional problems quite
beyond the scope and compass of each right considered separately and in
isolation. Can the freedom of the individual be subordinated to the
exigencies of the State and if so, to what extent ? The Constitution
concedes to the Executive the power of Preventive detention, but in the
name of national security can that jurisdiction of suspicion be so exercised
as to reduce the guarantee of personal liberty to a mere husk ? Detention
without trial is a serious inroad on personal freedom but it bears the
sanction of our Constitution. The Constituent Assembly composed of
politicians, statesmen, lawyers and social workers who had attained a
high status in their respective specialties and many of whom had
experienced the travails of incarceration owing solely to their political
beliefs, resolved to put Article 22, clauses (3) to (7) into the Constitution,
may be as a necessary evil. But does that mean that, more as a rule than
as an exception, any person can be detained without disclosing the
grounds of detention to him or to the Court which may be called upon to
try ins Habeas Corpus petition ? And can such grounds and the
information on which the grounds are based be deemed by a rule of
evidence to relate to the affairs of the State, therefore, confidential and
therefore privileged? Blind, unquestioning obethence does not flourish on
English soil, said Lord Simonds in Christie v. Leachinsky [1947] A.C. 573
,591 Will it flourish on Indian soil ? These broadly are the sensitive
questions for decision and importantly, they arise in the wake of *
Proclamations of emergency issued by the President

403. Part XVIII of the Constitution, called "emergency provisions",

consists of Articles 352 - 360. Article 352(1) provides that if the President
is satisfied that a grave emergency exists whereby the security of India or
of any part of the territory thereof is threatened, whether by war or
external aggression or internal disturbance, he may, by Proclamation,
make a declaration to that effect. A Proclamation issued under Clause (1)
is required by Clause (2)(b) to be laid before each House of Parliament
and by reason of Clause (2) (c) it ceases to operate at the expiration of
two months unless before the expiration of that period it has been
approved by resolutions of both Houses of Parliament. By Clause (3) of
Article 352, a Proclamation of emergency may be made before the actual
occurrence of war or of external aggression or internal disturbance, if the
President is satisfied that there is imminent danger thereof. Clause (5) (a)
makes the satisfaction of the President under Clauses (1) and (3) final,
conclusive and non-justiciable. By Clause (5)(b), neither the Supreme
Court nor any other court has jurisdiction, subject to the provisions of
Clause (2), to entertain any question on any ground regarding the validity
of a proclamation issued under Clause (1) or the continued operation
thereof.

404. Article 358 provides that:

While a Proclamation of emergency is in operation, nothing in

Article 19 shall restrict the power of the State as defined in 'Part
III to make any law or to take any executive action which the
State would but for the provisions contained in that Part be
competent to make or to take, but any law so made shall, to the
extent of the in 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.

405. Article 359(1) empowers the President, while a Proclamation of

emergency is in operation, to declare by order that:

. . .the right to move any court for the enforcement of such of

the rights conferred by Part III as may be mentioned in the order
and all proceedings pending in any court for the enforcement of
the rights so mentioned shall remain suspended for the period
during which the Proclamation is in force or for such shorter
period as may be specified in the order.

Clause (1A), which was inserted retrospectively in Article 359 by Section

7 of the Thirty-eighth Amendment Act, 1975, provides:

While an order made under Clause (1) mentioning any of the

rights conferred by Part III is in operation, nothing. in that Part
conferring those rights shall restrict the power of the State as
defined in the said Part to make any law or to take any executive
action which the State would but for the provisions contained in
that Part be competent to make or to take, but any law so made
shall, to the extent of the incompetency, cease to have effect as
soon as the order aforesaid ceases to operate, except as respects
thinks done or omitted to be done before the law so ceases to
have effect.

Clause (3) of Article 359 requires that every order made under Clause (1)
shall, as soon as may be after it is made, be laid before each House of
Parliament.

406. Article 352 was resorted to for the first time when hostilities broke
out will) China. On October 26, 1962 the President issued a Proclamation
declaring that a grave emergency existed whereby the security of India
was threatened by external aggression. This proclamation was
immediately followed by the Defence of India Ordinance, 4 of 1962, which
was later replaced by the Defence of India Act, 196?. On November 3,
1962 the President issued an Order under Article 359(1) of the
Constitution, which was later amended by an Order dated November 11,
1962 stating that:

the right of any person to move any court for the enforcement of
the rights conferred by Article 14, Article 21 and Article 22 of the
Constitution shall remain suspended for the period during which
the proclamation of emergency issued under Clause (1) of Article
352 thereof on the 26th October, 1962, is in force, if such person
has been deprived of any such rights under the Defence of India
Ordinance, 1962 (4 of 1962) or any rule, or order made
thereunder.
(Emphasis supplied).
Article 14 was added to the Order of November 3, 1962 by the
amendment dated November 11, 1962. The emergency declared on
October 26, 1962 was revoked by a Proclamation dated January 10, 1968
issued under Article 352(2)(a) of the Constitution.

407. The Defence of India Act, 1962 was to remain in force during the
period of operation of the Proclamation of emergency issued on October
26, 1962 and for a period of six months thereafter. The Act of 1962
expired on July 10, 1968.

408. The maintenance of Internal Security Act. 26 of 1971, (MISA), was

brought into force on July 2, 1971 in the shadow of hostilities with
Pakistan. Section 3(1) of that Act provides as follows:

3. (1) The Central Government or the State Government may.--

(a) if satisfied with respect to any person (including a

foreigner) that with a view to preventing him from acting
in any manner prejudicial to--

(i) the defence of India, the relations of India

with foreign powers, or the security of India, or

(ii) the security of the State or the maintenance

of public order, or

(iii) she maintenance of supplies and services

essential to the community, or
 (b) if satisfied with respect to any foreigner that with a
view to regulating his continued presence in India or with
a view to linking arrangements for his expulsion from
India,

it is necessary so to do make mi order directing that

such person be detained.

409. Section 8 of the Act requires that the grounds on which the order of
detention is made shall be commutate to the detenu within a certain
period but that the authority making the order may not disclose facts
which it considers to be against the public interest to disclose.

410. Consequent on the Pakistani aggression, the President issued a

Proclamation of emergency on December 3, 1971 on the ground that the
security of India was threatened by external aggression. By an order
dated December 5. 1971 issued under Article 359(1) of the Constitution,
the right of foreigners' to move any court for the enforcement of rights
conferred, by Articles 14, 21 and 22 was suspended.

411. In September 1974 the MISA was amended by Ordinance 11 of 1974

to include Sub-section (c) in Section 3(1), by which be right to detain was
given as against smugglers and offenders under the Foreign Exchange
Regulation Act, 1947. On November 16, 1974 the President issued a
Declaration under Article 359(1) suspending the right of persons detained
under Section 3(1)(c) of the MISA to move for enforcement of the rights
conferred by Article 14, Article 21 and Clauses (4), (5), (6) and (7) of
Article 22 of the Constitution..

412. On June 25, 1975 the President issued a Proclamation under Article
352(1) declaring that a grave emergency existed whereby the security of
India was threatened by internal disturbance. On June 27, 1975 the
President issued an Order under Article 359(1) which reads as follows:

G.S.R. 361 (E)--In exercise of powers conferred by Clause (1) of

Article 359 of the Constitution, the President hereby declares that
the right of any person (including a foreigner) to move any court
for the enforcement of the Rich's conferred by Article 14, Article
21 and Article 22 of the Constitution and all proceedings pending
in any court for the enforcement of the above mentioned rights
shall remain suspended for the period during which the
proclamation of emergency made under Clause (1) of Article 352
of the Constitution on the 3rd December, 1971 and on the 25th of
June, 1975 are both in force.
 The Order shall extend to the whole of the territory of India.

This Order shall be in addition to and not in derogation of any

Order made before the date of this Order under Clause (1) of
Article 359 of the Constitution.

413. Various persons detained under Section 3(1) of the MIS A filed
petitions in different High Courts for the issue of the writ of Habeas
Corpus. When those petitions came up for hearing, the Government
raised a preliminary objection to their maintainability on the ground that
in asking for release by the issuance of a writ of habeas corpus, the
detenus were in substance claiming that they had been deprived of their
personal liberty in violation of the procedure established by law, which
plea was available to them under Article 21 of the Constitution only. The
right to move for enforcement of the right conferred by that Article having
been suspended by the Presidential Order dated June 27, 1975 the
petitions, according to the Government, were liable to be dismissed at the
threshold. The preliminary objection has been rejected for one reason or
another by the High Courts of Allahabad, Bombay, Delhi, Karnataka,
Madhya Pradesh, Punjab and Rajasthan. Broadly, these High Courts have
taken the view that despite the Presidential Order it is open to the
detenus to challenge their detention on the ground that it is ultra vires, as
for example, by showing that the order on the face of it is passed by an
authority not empowered to pass it, or it is in excess of the power
delegated to the authority, or that the power has been exercised in
breach of the conditions prescribed in that behalf by the Act under which
the order is passed, or that the order is not in strict conformity with the
prevision of the Act. Some of these High Courts have further held that the
detenus can attack the order of detention on the ground that it is
malafide, as for example, by showing that the detaining authority did not
apply its mind to the relevant considerations, or that the authority was
influenced by irrelevant considerations, or that the authority was actuated
by improper motives. Being aggrieved by the finding recorded by these
Rich Courts on the preliminary point, the State Governments and the
Government of India have filed these appeals, some under certificates
granted by the High Courts and some by special leave granted by this
Court. The High Courts of Andhra Pradesh, Kerala and Madras have
upheld 'he preliminary objection.

414. During the pendency of these appeals and while the hearing was in
progress, the President issued an order dated January 8, 1976 under
Article 359(1) declaring that the right to move any court for the
enforcement of the rights conferred by Article 19 and the proceedings
pending in any court for the enforcement of those rights shall remain
suspended during the operation of the Proclamations of emergency dated
December 3, 1971 and June 25, 1975.

415. On behalf of the appellants, the appeals were argued by the learned
Attorney-General and the learned Additional Solicitor-General. The
learned Advocates-General of various States argued in support of their
contentions. A string of counsel appeared on behalf of "the respondents,
amongst them being Shri Shanti Bhushan, Shri V. M. Tarkunde, Shri R. B.
Jethmalani, Shri S. J. Sorabji, Shri A. B. Dewan, Shri C. K. Daphtary, Dr.
N. M. Ghatate, Shri G. C. Dwivedi, Shri Santokh Singh, Shri Sharad
Manohar, Shri Daniel Latin" and Shri Mayakrishnan. The learned
Advocate-General of Gujarat generally supported their submissions.

416. The learned Attorney-General contended that Article 21 is the sole

repository of the right to life and personal liberty and if the right to move
any court for the enforcement of that right is suspended by the
Presidential Order issued under Article 359(1), the detenus have no locus
standi to file the writ petitions and therefore these petitions must be
dismissed without any further inquiry into the relevance of the material
on which the grounds of detention are based or the relevance of the
grounds or the bona fides of the detaining authority, if the MISA permits
the non-disclosure of grounds and indeed prevent their disclosure, there
is no question of inquiring into the reasons or grounds of detention and
courts must accept at its face value the subjective satisfaction of the
detaining authority as recorded in the order of detention. "There is no
half-way house" asserted the Attorney-General. But, not inconsistently
with the basic submission that the detenus have no locus standi to file the
petitions for habeas corpus, he conceded that the court may grant relief if
the detention order is on the face of it bad, as for example, if it is passed
by a person not authorised to pass it, or if it is passed for a purpose
outside those mentioned in Section 3(1) of the MISA or if it does not bear
any signature at all.

417. The learned Additional Solicitor-General indicated during the course

of ins argument the limits of judicial review in the event of the court
rejecting the main submission of the Attorney-General. He contended that
Section 16A(9) of MISA contains but a rule of evidence and is therefore
not open to attack on the ground that it encroached upon the jurisdiction
of the High Court under Article 226 of the Constitution. Since Section
16AC9) is not unconstitutional, no court can ask for the production of the
file relating to a detenu or ask for the disclosure of the grounds of
detention. If such disclosure is not made, no adverse inference can be
raised by holding that by reason of non-disclosure, the detenu's case
stands unrebutted. The learned Additional Solicitor-General contended
that there was no warrant for reading down Section 16A(9) so as to
permit disclosure to the court, to the exclusion of the parties and if any
inquiry is permissible at all into a habeas corpus petition, the inquiry must
be limited to the following points : (i) Whether the order is made in
exercise or purported exercise of power conferred by a law; (ii) If such
law was pre-emergency law, is it a valid law; (iii) whether the authority
which passed the order is duly empowered to do so by the law; (iv)
Whether the person sought to be detained is the person named in the
order of detention; (v) Whether the stated purpose of the detention is
one that comes within the law; (vi) Have the procedural safeguards
enacted by the law been followed; and (vii) Where grounds are furnished
(i.e. when 16-A does not apply) do such grounds ex-fade justify the
apprehension of the detaining authority or is it vitiated by a logical non-
sequltur ? Such an inquiry, according to the learned Counsel, can never
extend to an objective appraisal of the material and the information for
the purpose of testing the validity of the subjective satisfaction of the
detaining authority.

418. The arguments advanced on behalf of the respondents covered a

wide range but they may be summarized thus:

1. The object of Article 359(1) and the effect of an order issued

under it is to remove restraints against. The Legislature so that
during the emergency, it is free to make laws in violation of the
fundamental rights mentioned in the Presidential Order.

2. Under a Constitution which divides State functions into

Executive, Legislative and Judicial, the executive functions must
be discharged consistently with the valid laws passed by the
Legislature and the order and decrees passed by the Judiciary.
The suspension of the right to enforce fundamental right cannot
confer any right on the Executive to court the law by which it is
bound as much in times of emergency as in times of peace. Since
there is a valid law regulating preventive detention, namely, the
MISA, every order of detention . passed by the Executive must
conform to the conditions prescribed by that law.

3. Article 359(1) may remove fetters imposed by Part III but it

cannot remove those arising from the principle of rule of law or
from the principle of the limited power of the Executive under the
system of checks and balances based on separation of powers.

4. The obligation cast on the Executive to act in accordance with

the law does not arise from any particular Article of the
Constitution but from the inherent compulsion arising from the
principle of rule of law which is a central feature of our
constitutional system and is a basic feature of the Constitution.
The suspension of the right to enforce Article 31 does not
automatically entail the suspension of the rule of law. Even
during emergency, the rule of law is not and cannot be
suspended.

5. The Presidential Order under Article 359(1) may bar the

enforcement of fundamental rights mentioned in the order by a
petition under Article 32 before the Supreme Court. But. the
Presidential Order cannot bar the enforcement of rights other
than fundamental rights by a petition filed under Article 226 in
the High Court.

6. Common law rights as well as statutory rights to personal

liberty can be enforced through writ petitions file under Article
226, despite the Presidential Order issued under Article 359(1).
Similarly, contractual rights, natural rights and non-fundamental
constitutional rights like those under Articles 256, 265 and 361
(3) of the Constitution, can be enforced under Article 226. Article
226 empowers the High Courts to issue writs and directions for
the enforcement of fundamental rights, "and for any other
purpose".

7. The essence of the inquiry in a Habeas Corpus petition is

whether the detention is justified by law or is ultra VIRES. the
law. Such an inquiry is not shut cut by the suspension of the rural
to enforce- fundamental rights.

8. It the Presidential Order is construed as a bar 10 the

maintainability of the writ petitions under Article 22ft of the
Constitution, that Article shall have been amended without a
proper and valid constitutional amendment,

9. Article 21 of the Constitution is not the sole repository of the

right to life or personal liberty. There is no authority for the
proposition that; on the contention; 01 fundamental right by Part
III the corresponding pre-existing rights merged with the
fundamental rights and that with the suspension OL fundamental
rights, the corresponding pre-existing rights also got suspended.

10. Suspension of the right lo enforce Article 21 cannot put a

citizen in a worse position than in the pre Constitution period.
The pre Constitution right of liberty was a right in rein and was
totally dissimilar from the one created by Article 21. The pre
 Constitution right was merely a right not to be detained, save
under the authority of law.

11. Civil liberty or personal liberty is not a conglomeration of

positive rights. It is a negative concept and constitutes an area of
free action because no law exists curtailing it or authorising its
curtailment.

12. Section 16A(9) of the MISA A is unconstitutional as it

encroaches upon the High Courts' powers under Article 226 of the
Constitution by creating a presumption that the grounds on which
the order of detention is made and any information or materials
on which the grounds are based shall be treated as confidential
and shall be deemed to refer to matters of State, so that it will be
against the public interest to disclose the same.

13. Section 18 of MISA as amended by Act 39 of 1975 which

came into force with effect from June 25, 1975 cannot affect the
maintainability of the present petitions which were filed before
the Amendment.

14. The dismissal of writ petitions on the ground that such '
petitions are barred by reason of the Presidential Order issued
under Article 359(1) would necessarily mean that during the
emergency no person has any right to life or personal liberty;
and

15. If the detenus are denied any forum for the redress of their
grievances, it would be open to the Executive to whip the
detenus to starve them, to keep them in solitary confinement and
even to shoot them, which would be a startling state of affairs in
a country governed by a written Constitution having in it a
Chapter on Fundamental Rights. The Presidential Order cannot
permit the reduction of Indian citizens into slaves.

The validity of the 38th and 39th Constitution (Amendment} Acts was not
challenged by the respondents.

419. The key to these rival contentions can be found in the emergency
provisions contained in Chapter XVIII of the Constitution. The Presidential
declaration of emergency is made final, conclusive and non-justiciable by
Clause (5) of Article 352, which was introduced by the 38th Amendment
retrospectively. But apart from the fact that the Constitution itself has
given finality to declarations of emergency made by the President, it is
difficult to see how a Court of law can look at the declaration of
emergency with any mental reservations. The facts and circumstances
leading to the declaration of emergency are and can only be known to the
Executive, particularly when an emergency can be declared, as provided
in Article 352(3), before the actual occurrence of war, external aggression
or internal disturbance, so long as the President is satisfied that there is
imminent danger thereof. The actual occurrence of war or external
aggression or internal disturbance can be there for anyone to see but the
imminent danger of these occurrences depends at any given moment on
the perception and evaluation of the national or international situation,
regarding which the court of law can neither have full and truthful
information nor the means to such information. Judge and Jury alike may
form their personal assessment of a political situation but whether the
emergency should be declared or not is a matter of high State policy and
questions of policy are impossible to examine in courts of law. The High
Courts whose judgments are under appeal have, with the greatest
respect, failed to perceive this limitation on the power of judicial review,
though in fairness to them it must be stated that none of them has held
that the declaration of emergency is open to judicial scrutiny. But at the
back of one's mind is the facile distrust of executive declarations which
recite threat to the security of the country, particularly by internal
disturbance. The mind then weaves cobwebs of suspicion and the Judge,
without the means to knowledge of full facts, covertly weighs the pros
and cons of the political situation and substitutes ins personal opinion for
the assessment of the Executive, which, by proximity and study, is better
placed to decide whether the security of the country is threatened by an
imminent danger of internal disturbance. A frank and unreserved
acceptance of the Proclamation of emergency, even in the teeth of one's
own pre-disposition. is conducive to a more realistic appraisal of the
emergency provisions.

420. A declaration of emergency produces far-reaching consequences.

While it is in operation the executive power of the Union, by reason of
Article 353, extends to the giving of directions to any State as to the
manner in which the executive power thereof is to be exercised. Secondly,
the power of Parliament to make laws with respect to any matter
includes, during emergency, the power to make laws conferring powers
and imposing duties or authorising the conferring of power sand
imposition of duties upon the Union or officers and authorities of the
Union as respects that matter, notwithstanding that the matter is not
enumerated in the Union List. Article 354 confers power on the President
to direct that the provisions of Articles 268 to 279, which deal with
distribution of revenues between the Union and the States, shall have
effect subject to such exceptions or modifications as the President thinks
fit, but not extending beyond the expiration or the financial year in which
the proclamation ceases to operate. A Proclamation of emergency
automatically curtails the operation of Article 19. As provided in Article
358, while the Proclamation is in operation nothing in Article 19 shall
restrict the power of the State to make any law or to take any executive
action which the State would but for the provisions contained in Part III
be competent to make or to take. Any law so made ceases to have effect
to the extent of the in competency as soon as the proclamation ceases to
operate.

421. Then comes Article 359 which is directly in point. It authorises the
President to issue an order declaring the suspension of the right to move
any court for the enforcement of such of the rights conferred by Part III
as the President may specify in his Order. Clause (1A) which was
introduced in Article 359 by the 38th Amendment Act retrospectively has,
inter alia, transported the provisions of Article 358 into Article 359 during
the operation of an Order made by the President under Article 359(1).
The Orders issued by the President in the instant case under Article
359(1) provide for the suspension of the right to move any court for the
enforcement of the rights conferred by Articles 14, 19, 21 and clauses (4)
to (7) of Article 22. Article 21 of the Constitution runs thus:

No person shall be deprived of his life or personal liberty except

according to procedure established by law.

422. The principal question for decision in these appeals is whether,

notwithstanding the fact that the Order issued by the President under
Article 359(1) suspends the right of every person to move any court for
the enforcement of the right to personal liberty conferred by Article 21, it
is open to a person detained under a law of preventive detention like the
MISA to ask for his release by filing a petition in the High Court under
Article 226 of the Constitution for the writ of habeas corpus.

423. The writ of habeas corpus is described by May in his 'Constitutional

History of England (Ed. 1912, Vol. II, p. 130 (Chapter XI) ) as the first
security of civil liberty. Julius Stone in Social Dimensions of Law and
Justice (Ed. 1966, p. 203), calls it a picturesque writ with an
extraordinary scope and flexibility of application. The Latin term "habeas
corpus" means 'you must have the body' and a writ for securing the
liberty of the person was called habeas corpus ad subjiciendum. The writ
affords an effective means of immediate release from an unlawful or
unjustifiable detention, whether in prison or in private custody. The writ is
of highest constitutional importance being a remedy available to the
lowliest subject against the most powerful government.

424. The liberty of the individual is the most cherished of human

freedoms and even in face of the gravest emergencies, Judges have
played a historic role in guarding that freedom with zeal and jealousy,
though within the bounds, the farthest bounds, of constitutional power.
The world-wide interest generated by the lively debate in Liversidge v. Sir
John Anderson and Anr.[1942] A.C. 206; Lord Atkin, p. 244 has still not
abated. And repeated citation has not blunted the edge of Lord Atkin's
classic dissent where he said:

I view with apprehension the attitude of judges who on a mere

question of cons ruction when face to face with claims involving
the liberty of the subject show themselves more executing
minded than the executive. ...In this country , amid the clash of
arms, the laws are not silent. They may be changed, but they
speak the same language in war as in peace.... In this case I
have listened to arguments which might have been addressed
acceptably to the court of King's Bench in the time of Charles I.

425. Sir William Blackstone in his 'Commentaries on the Laws of England

(4th Ed., Vol I pp. 105 to 107) says that the preservation of personal
liberty is of great importance to the public because if it were left in the
power of ever the highest person to imprison anyone arbitrarily there
would soon be an end of all other rights and immunities. "To bereave a
man of life, or by violence to confiscate his estate, without accusation
ortrial, would be so gross and notorious an act of despotism, as must at
once convey the alarm of tyranny throughout the whole kingdom; but
confinement of the person, by secretly hurrying him to gaol, where his
sufferings are unknown or forgotten, is a less public, a less striking, and
therefore a more dangerous engine of arbitrary government." The learned
commentator goes on to add: "And yet, sometimes, when the state is in
real danger, even this may be a necessary measure. But the happiness of
our Constitution is, that it is not left to the executive power to determine
when the danger of the state is so great, as to render this measure
expedient; for it is the parliament only, or legislative power, that,
whenever it sees proper, can authorize the Crown, by suspending the
Habeas Corpus Act for a short and limited time, to imprison suspected
persons without giving any reason for so doing."

426. May in his 'Constitutional History of England (Ed. 1912, p. 124, 130)'
says that during the course of the last century every institution was
popularized and every public liberty was extended but long before that
period Englishmen had enjoyed personal liberty as their birthright. It was
more prized and more jealously guarded than any other civil right. "The
Star Chamber had fallen: the power of arbitrary imprisonment had been
wrested from the Crown and Privy Council: liberty had been guarded by
the Habeas Corpus Act...." Speaking of the writ of habeas corpus May
says that it protects the subject from unfounded suspicions, from the
aggressions of power and from abuses in the administration of justice.
"Yet this protective law, which gives every man security and confidence,
in times of tranquility, has been suspended, again and again, in periods of
public danger or apprehension. Rarely, however, has this been suffered
without jealousy, hesitation, and remonstrance; and whenever the perils
of the state have been held sufficient to warrant this sacrifice of personal
liberty, no Ministeror magistrate has been suffered to tamper with the law
at his discretion. Parliament alone, convinced of the exigency of each
occasion, has suspended, for a time, the rights of individuals, in the
interests of the State."

427. Dicey in his Introduction to the Study of the Law of the Constitution
(10th Edition) says that:

During periods of pipoticial excitement the power or duty of the

Courts to issue a writ of habeas corpus, and thereby compel the
speedy trial or release of persons charges with crime, has been
found an inconvenient of dangerous limitation on the authority of
the executive government. Hence has arisen the occasion for
statutes which are popularly called Habeas Corpus Suspension
Acts.

428. E.C.S. Wade AND Godfrey PHILLIPS observe in their Constitutional

Law (8th Ed., Chapter 48, 717, 718) that times of Grave National
emergency, normal constitutional principle must if necessary give way TO
the overriding need to deal with the emergency. According to the learned
authors:

It has always been recognised that times of grave national

emergency demand the of special powers to the Executive. At
such Times arbitrary arrest and imnrsonment may be legalised by
Act of Parliament. Modern war demands the abandonment of
personal liberty in that the duty of compulsory national service
necessarily takes away for the time being the right of the
individual to cheese his occupation.

The learned authors refer to the English practice of passing Habeas

Corpus Suspension Acts in times of danger to the State. These Acts
prevented the use of habeas corpus and as soon as the period of
suspension was over anyone who for the time being had been denied the
assistance of the writ could bring an action for false imprisonment.
Suspension did not legalise illegal arrest. it merely suspended a particular
remedy and therefore, a practice grew under which at the close of the
period of suspension an Indemnity Act would be passed in order to
protect officials from the consequences of any illegal act which they might
have committed under cover of the suspension of the prerogative writ.

429. Thomas M. Ccoley says in the "General Principles of Constitutional

Law (4th Ed. Chapter XXXIV, pp. 360-361) in the U.S.A. that though the
right to the writ of habeas corpus by which the liberty of the citizens is
protected against arbitrary arrests is not. expressly declared in the
American Constitution, it is recognised in Article 1, Section 9, Clause 2
which says that:

The privileges of the writ of habeas corpus shall not be

suspended, unless when in cases of rebellion or invasion the
public safety may require it.

It would appear that in America something similar to the passing of Acts

of Indemnity has been done by making provisions in State Constitutions.

430. Thus, though the liberty of the individual is a highly prized freedom
and though the writ of habeas corpus is a powerful weapon by which a
common man can secure his liberty, there are times in the history of a
Nation when the liberty of the individual is required to be subordinated to
the larger interests of the State. In times of grave disorders, brought
about by external aggression or internal disturbance, the stability of
political institutions becomes a sine qua non of the guarantee of all other
rights and interests. "To assert an absolute exemption from imprisonment
in all cases, is inconsistent with every idea of law and political society;
and in the end would destroy all civil liberty, by rendering its protection
impossible.", (Blackstone's Commentaries on the Laws of England. 4th Ed
, Vol III pp. 125-126) The "clear and present danger test" evolved by
Justice Holmes in Schenck v. United States (1919) 249 U.S. 47 , may well
be extended to cases like the present where there is a threat of external
aggression. On the heels of American entry into the first World War on
June 15, 1917, the Congress adopted the Espionage Act creating three
new offences which went beyond the prohibition of spying and sabotage.
It prescribed a punishment of a fine of 10,000 dollars and 20 years'
imprisonment. A year later, the Act was amended by what is popularly
called the Sedition Act which rendered it illegal even to say anything to
obstruct the sale of United States bonds or to say anything contemptuous
regarding the form of Government of the United States. A unanimous
court upheld Schenck's conviction under the Act for propagating that
compulsory service in the Armed Forces was "a monstrous wrong against
humanity in the interest of Wall Street's chosen few". The judgment was
delivered in 1919 when the war was already over and Holmes J. held that
things that can be said in times of peace will not be endured during times
of war and no court will regard them as protected by any constitutional
right.

431. The emergency provisions were incorporated into our Constitution on

the strength of experience gained in England and U.S.A. But the object of
Article 359 is to confer wider power on the President than the power to
merely suspend the right to file a petition for the writ of habeas corpus.
Article 359 aims at empowering the President to suspend the right to
enforce all or any of the fundamental rights conferred by Part III. It is in
order to achieve that object that Article 359 does not provide that the
President may declare that the remedy by way of habeas corpus shall be
suspended during emergency. Personal liberty is but one of the
fundamental rights conferred by Part 111 and the writ of habeas corpus is
peculiar to the enforcement of the right to personal liberty. It must follow
that the suspension of the right to enforce the right conferred by Article
21 means and implies the suspension of the right to file a habeas corpus
petition or to take any other proceeding to enforce the right to personal
liberty conferred by Article 21.

432. But then it is urged on behalf of the respondents that by their writ
petitions, respondents did not seek to enforce the right to personal liberty
conferred by Article 21 or possessed by them apart from it. They were
really seeking a declaration that the order of detention was illegal for the
reason that it did not comply with the requirements of the law under
which it was passed. In support of this argument reliance is placed upon a
passage in H.W.R. Wade's Administrative Law (3rd Ed. , pp. 127, 128) to
the effect that habeas corpus is a remedy not only for the enforcement of
the right to personal liberty but is also a remedy for the enforcement of
the principle of ultra vires. This argument lacks substance and overlooks
the realities of the situation. It may be open to a detenu by filing a
petition for the writ of habeas corpus to contend that order under which
he is detained is ultra vires of the statute to which the order owes its
existence. But one must have regard to the substance of the matter and
not to mere form. The real and substantial relief which the detenu asks
for by a writ of habeas corpus is that he should be freed from detention
and the reason for the relief is that the order of detention is ultra vires. It
is clear, apart from the form in which the relief may or may not be
clothed, that the respondents through their writ petitions were moving
the High Courts for enforcing their right to personal liberty. The history of
the writ of habeas corpus which is succinctly narrated in the late Mr. M. C.
Setalvad's 'The Common Law in India' (Pages 37-41 (Ed. 1960, Hamlyn
Lectures) shows that the writ of habeas corpus which was in its inception
a purely procedural writ gradually developed into a constitutional remedy
furnishing a most powerful safeguard for individual freedom. Mr. Setalvad
quotes that the writ has been described as "the key that unlocks the door
to freedom". Respondents were surely not interested in obtaining an
academic declaration regarding the ultra vires character of their
detention. They wanted the door to freedom to be opened by the key of
the habeas corpus writ.

433. Equally untenable is the contention that Article 226 which occurs in
Chapter V, Part VI of the Constitution is an entrenched provision and,
therefore, under Article 368 no amendment can be made to Article 226
without ratification by the Legislatures of not less than one-half of the
States. It is true that Article 226 is an entrenched provision which cannot
suffer an amendment except by following the procedure prescribed by the
proviso to Article 368(2). But the Presidential Order is issued under the
Constitution itself and if its true construction produces a certain result, it
cannot be said that some other Article of the Constitution stands thereby
amended. Article 359(1) provides for the passing o[an order by the
President declaring that the right to move for the enforcing of
fundamental rights mentioned in the Order shall be suspended. That may,
in effect, affect the jurisdiction of the High Courts to entertain a petition
for the issuance of the writ of habeas corpus. But that does not bring
about any amendment of Article 226 within the meaning of: Article 368,
which speaks of amendments to the Constitution by the Parliament in the
exercise of its constitutional power. Article 226 and Article 359(1) are
parts of the same fundamental instrument and a certain interpretation of
one of these Articles cannot amount to an amendment of the other.

434. It is also not correct to say that any particular interpretation of:
Article 359(1) will mean the abolition of the jurisdiction and power of the
Supreme Court under Article 32 and of the High Courts under Article 226
of the Constitution. The true implication of the Presidential Order is to
take away the right of any person to move any court for the enforcement
of the rights mentioned in the Order. In strict legal theory the jurisdiction
and powers of the Supreme Court and the High Courts remain the same
as before since the Presidential Order merely takes away the locus standi
of a person to move these Courts for the enforcement of certain
fundamental rights during the operation of the Proclamation of
emergency. It is important to appreciate that the drive of Article 359(1) is
not against the courts but is against individuals, the object of the Article
being to deprive the individual concerned of his normal right to move the
Supreme Court or the High Court for the enforcement of the fundamental
rights conferred by Part 111 of the Constitution. In Sree Mohan
Chowdlwry v. The Chief Commissioner, Union Territory of Tripura
MANU/SC/0035/1963 : 1964CriLJ132 a Constitution Bench of this Court,
dealing with an Order issued by the President on November 3, 1962 under
Article 359(1), observed:
 ...Unquestionably, the Court's power to issue a writ in the nature
of habeas corpus has not been touched by the President's Order,
but the petitioner's right to move this Court for a writ of that kind
has been suspended by the Order of the President passed under
Article 359(1). " The President's Order does not suspend all the
rights vested in a citizen to move this Court but only his right to
enforce the provisions of Articles 21 and 22. Thus, as a result of
the President's Order aforesaid, the petitioner's right to move this
Court, but not this Court's power under Article 32 has been
suspended during the operation of emergency, with the result
that the petitioner has no locus standi to enforce his right, if any.
during the emergency.

435. According to the respondents, the limited object of Article 359(1) is

to remove restrictions on the power of the Legislature so that during the
operation of the emergency it would be free to male laws in violation of
the fundamental rights specified in the Presidential Order. This argument
loses sight of' the distinction between the provisions of Article 358 and
Article 359(1A) on the one hand and of Article 359(1) on the other. Article
358, of its own force, removes the restrictions on the power of the
Legislature to make laws inconsistent with Article 19 and on the power of
the Executive to take action under a law which may thus violate Article
19. Article 358 does not suspend any right which was available under
Article 19 to any person prior to the Proclamation of emergency. under
Article 359(1) the President is empowered to suspend the right of an
individual to move any court for the enforcement of the rights conferred
by Part III as may be mentioned in the Order. Consequent upon such
Order, all proceedings pending in any court for the enforcement of the
rights so mentioned remain suspended during the period that the
Proclamation is in force or such shorter period as the Order may specify.
Article 359(1) is thus wider in scope than Article 358. This distinction has
an important bearing on the main point under consideration because it
shows that it was not enough to provide that nothing in Article 19 shall
restrict the power of the State to make any law or to take any executive
action which the State would, but for the provisions contained in Part III,
be competent to make or take. In order to effectuate the purposes of
emergency, it was necessary further to provide that no person would have
any right to move for the enforcement of his fundamental rights
mentioned in the Presidential Order and that pending proceedings in that
behalf shall remain suspended during the operation of the emergency. It
seems elementary that a fundamental right can be enforced as much in
regard to a law which takes away that right contrary to the provisions of
the Constitution as against the Executive, if it acts contrary to the
provisions of a law or without the authority of law. In view of he language
of Article 359(1) and considering the distinction between it and the
provisions of Article 358, there is no justification for restricting the
operation of Article 359(1) as against laws made by the Legislature in
violation of the fundamental rights.

436. Reliance was placed by the respondents on the decisions of this

Court in Sree Mohan Chowdliury v. The Chief Commissioner, Union
Territory of Tripura [1964] 3 S.C R. 142 and Makhan Singh v. State of
Punjab MANU/SC/0039/1963 : 1964CriLJ217 in support of their
contention that Article 359(1) operates in the legislative and not in the
executive field. These decisions do not support such a proposition. On the
contrary, it is clear from the two decisions that the effect of the
Presidential Order under Article 359(1) is (o take away the locus standi of
a person to move any court for the enforcement of his fundamental rights
which are mentioned in the Order. Neither of the two cases deals directly
with the question whether the operation of Article 359(1) is restricted to
the legislative held but, if at all, the ratio of those cases may be logically
extended to cover executive acts also. During times of emergency, it is
the Executive which commits encroachments on personal liberties and the
object of Article 359(1) is to empower the President to suspend the right
to move any court for the enforcement of a right to complain against the
actions of the Executive, no less than against the laws passed by the
Legislature, if either the one or the other contravenes any of the
fundamental rights mentioned in the Order.

437. This position was controverted by the respondents from several

angles. It was contended that in a Constitution which divides State
functions into Executive, Legislative and Judicial, the executive functions
must be discharged consistently with the laws passed by the Legislature
and the orders and decrees passed by the judiciary. The suspension of the
right to enforce fundamental rights cannot confer any privilege on the
Executive to flout the law by which it is bound as much in times of
emergency as in times of peace. therefore, the argument proceeds, there
being a valid law regulating preventive detention, namely the MISA, every
order of detention passed by the Executive must conform to the
conditions prescribed by that law. The current of thought underlying this
argument was highlighted by a learned Counsel for the respondents by
saying that it is strange that in the face of a law passed by the
Parliament, which in passing the law must assume that it will be obeyed,
the Executive can flout the law with impunity by relying on the
Presidential Order issued under Article 359(1). Yet another point of view
presented on this aspect of the case was that permitting the Executive to
defy and disobey the law made by the Legislature is tantamount to
destroying one of the important basic features of the Constitution that the
Executive is bound by the laws made by the Legislature. Finally, it was
urged that the Preamble to the Constitution speaks of a Sovereign
Democratic Republic and, therefore, the Executive which is subordinate to
the Legislature cannot act to the prejudice of the citizen save to the
extent permitted by laws validly made by the Legislature which is the
chosen representative of the people.

438. In view of the true scope and object of Article 359(1), which has
already been dealt with above, these arguments have to be rejected. In
the first place, it is difficult to appreciate the argument of 'basic features'
because we are not concerned to pronounce upon the validity of an
amendment made to the Constitution by a parliamentary measures. We
are concerned to understand the scope of Article 359(1) and what it
implies. That Article is as much a basic feature of the Constitution as any
other and it would be inappropriate to hold that because in normal times
the Constitution requires the Executive to obey the laws made by the
Legislature, therefore, Article 359(1) which is an emergency measure,
must be construed consistently with that position. The argument of basic
feature is wrong for yet another reason that Article 359(1) does not
provide that the Executive is free to disobey the laws made by the
Legislature. At the cost of repetition it must be said that what Article
359(1) achieves is merely the suspension of the right of an individual to
move a court for the assertion of his fundamental rights which have been
mentioned in the Presidential Order, even if such rights are contravened
either by the Legislature or by the Executive. To permit a challenge in a
court of law to an order of detention, which is an executive action, on the
ground that the order violates a fundamental right mentioned in the
Presidential Order, is to permit the detenu to enforce a fundamental right
during emergency in a manner plainly contrary to Article 359(1). The
language of that Article, it is admitted on all hands, is clear and
unambiguous.

439. The constitutional consequences of a Proclamation of emergency are

grave and far-reaching. Legislatures can, during emergencies, make laws
in violation of the seven freedom guaranteed by Article 19; the President
has the power to suspend the right to move for the enforcement of all or
any of the fundamental rights mentioned in the order issued under Article
359(1); the Executive power of the Union extends during emergencies to
giving directions to any State or to the manner in which the executive
power thereof is to be exercised. This particular power conferred on the
Union Executive is in total violation of the provisions of Article 162 of the
Constitution and indeed of the federal structure which is one of the
principal features of our Constitution; if any State Executive fails to
comply with the directions given by the Union Executive under Article
353(a), the "President's rule" can be imposed on that State under Article
356, in which event the Parliament is entitled under Article 357(1) to
confer on the President the power of the Legislature of that State to make
laws. The Parliament can even authorize the President to delegate such
legislative power to any other authority. The democratic structure of the
Constitution stands severely eroded in such a situation. Finally, Parliament
acquires during emergencies the power to make laws on matters which
are numerated in the State List. If consequences so fundamentally
subversive of the basic federal structure of the Constitution can ensue
during emergencies, it is not as revolting as may be appear at first sight
that even if the Executive does not obey the mandate of the Legislature,
the citizen is powerless to move any court for the protection of his
fundamental rights, if these rights are mentioned in the Presidential
Order.

440. A facet of the same argument was presented on behalf of the

respondents with even greater force. It was urged that Article 359(1) may
remove fetters imposed by Part III but it cannot ever remove the fetters
arising from the principle of rule of law or from the principle of the limited
power of the Executive under a system of checks and balances based on
separation of powers. The obligation cast on the Executive to act in
accordance with law does not, according to the respondents, arise from
any particular Article of the Constitution but it arises from the inherent
compulsion of the rule of law which is a central basic feature of our
constitutional system. The suspension of the right to enforce Article 21
cannot automatically entail the suspension of the rule of law because,
even during an emergency the argument proceeds, the rule of law is not
and cannot be suspended. The Executive has a limited authority under the
Indian Constitution and it can act within the residual area as it pleases, so
long as it does not act to the prejudice of the citizen. It is always
incumbent on the Executive to justify its action on the basis of law and
this, according to the respondents, is the principle of legality or the rule of
law.

441. The respondents' argument that all executive action which operates
to the prejudice of a person must have the authority of law to support it is
indisputably valid in normal situations. In the absence of a Proclamation
of emergency and in the absence of a Presidential Order under Article
359(1) of the kind that we have in the instant case, the Executive is
under an obligation to obey the law and if it acts to the prejudice of
anyone by disobeying the law, its action is liable to be challenged by an
appropriate writ. That the rule of law must prevail in normal times is the
rule of law under the Indian Constitution. But it is necessary to clear a
misconception. Even though the compulsion to obey the law is a
compulsion of normal times, Article 358 takes in those cases only in which
the executive purports to act under the authority of a law. It does not
envisage that the executive can-act without the apparent authority of law.
In other words, Article 358 enables the Legislature to make laws in
violation of Article 19 and the Executive to act under those laws, despite
the fact that the laws constitute an infringement of the fundamental
rights conferred by Article 19.

442. The argument of the respondents that the Presidential Order under
Article 359(1) cannot ever suspend the rule of law requires a close
examination, particularly in view of some of the decisions of this Court
which apparently support that contention.

443. In State of Madhya Pradesh and Anr. v. Thakur Bharat Singh

MANU/SC/0043/1967 : [1967]2SCR454 the State Government, on April
24, 1963 made an order under Section 3 of the Madhya Pradesh Public
Security Act, 1959 directing that the respondent shall not be in any place
in Raipur District, that he shall immediately proceed to and reside in a
named town and that he shall report daily to a police station in that town.
The order was challenged by the respondent by a writ petition under
Articles 226 and 227 of the Constitution on the ground that Section 3
infringed the fundamental rights guaranteed by Article 19(1)(d) and (e) of
the Constitution. The respondent succeeded in the High Court which
declared a part of the order invalid on the ground that Section 3(1)(b) of
the Act was violative of Article 19(1)(d) of the Constitution. In appeal, it
was contended in this Court on behalf of the State Government that so
long as the state of emergency declared on October 20, 1962 was in
force, the respondent could not move the High Court by a petition under
Article 226 on the plea that by the impugned order his fundamental right
guaranteed under Article 19(1)(d) was infringed. It was further contended
on behalf of the State Government that even if Section 3(1)(b) was held
to be void, Article 358 protected legislative as well as executive action
taken after the Proclamation of emergency and therefore the order
passed by the Government after the emergency was declared could not
be challenged as infringing Article 19. Describing this latter argument as
involving "a grave fallacy", a Constitution Bench of this Court dismissed
the State's appeal holding, that for acts done to the prejudice of the
respondent after the declaration of emergency under Article 352, no
immunity from the process of the Court could be claimed under Article
358 of the Constitution since the order was not supported by any valid
legislation. Shah J. who spoke on behalf of the Bench observed in his
judgment that all executive action which operates to the prejudice of any
person must have the authority of law to support it and that the terms of
Article 358 do not detract from that rule. Article 358, according, to this
Court, did not purport to invest the State with arbitrary authority to take
action to the prejudice of citizens and others but it merely provides that
so long as the Proclamation of emergency subsists, laws may be enacted
and executive action may be taken in pursuance of lawful authority, which
if the provisions of Article 19 were operative would have been invalid.
444. It is important to bear in mind that Bharat Singh's case was
concerned with a pre-emergency law, though the impugned order was
passed thereunder during the operation of emergency. The law having
been passed in 1959, which was before the declaration of emergency, it
had to comply with Article 19 and if it did not, it was void to the extent of
the inconsistency. Since the law was held to be violative of Article 19 it
could not claim any protection under Article 358. That Article lifts
restrictions on legislative power "while a proclamation of emergency is in
operation," that is to say, it enables laws to be made during the
emergency, ever if they conflict with Article 19. The executive is then free
to act under those laws. But, if the law is void for the reason that having
been made prior to the emergency it violates Article 19, or if there is no
law at all under the purported authority of which the executive has acted,
the executive action is not protected by Article 358. Bharat Singh's case is
distinguishable for the additional reason that it was only concerned with
the effect of Article 358 and no question arose therein with regard to any
executive action infringing a fundamental right mentioned in a
Presidential Order issued under Article 359(1). I have already indicated
the vital difference between Article 358 and Article 359(1). The latter bars
the enforcement of any fundamental right mentioned in the Presidential
Order, thereby rendering it incompetent for any person to complain of its
violation, whether the violation is by the Legislature or by the Executive.
In other words, Article 359(1) bars the remedy by depriving an aggrieved
person of his locus to complain of the violation of such of his fundamental
rights as are mentioned in the Presidential Order.

445. Respondents also relied in support of the same submission on the

decisions of this Court in District Collector of Hyderabad and Ors. v. M/s.
Ibrahim & Co. etc. MANU/SC/0070/1970 : [1970]3SCR498 Bennett
Coleman & Co. and Ors. v. Union of India and Ors. MANU/SC/0038/1972 :
[1973]2SCR757 and Shree Meenakshi Mills Ltd. v. Union of India [1974] 7
S. C. R. 398.. These decisions are founded on the same principle as
Rharat Singh's case and are distinguishable for the same reason. In
Ibrahim's case, the existing licences of recognised dealers in sugar were
cancelled by the State Government and a monopoly licence was given to
a Cooperative Stores thereby preventing the dealers by a mere executive
order from carrying on their business. A question arose in the appeal
whether the order of the State Government cancelling the licences of the
dealers was protected under Articles 358 and 359 of the Constitution as
the President had declared a state of emergency on October 20, 1962.
This question was answered in the negative on the ground that the
executive order which was immune from attack is only that order which
the State was competent to make but for the provisions contained in
Article 19. Since the executive action of the State Government was invalid
apart from Article 19, it was not immune from attack merely because a
Proclamation of emergency was in operation. The important point of
distinction is that in Ibrahim's case, the impugned order was not made
under the authority reserved by the Defence of India Ordinance or the
rules made thereunder but was issued merely in pursuance of the policy
laid down by the Central Government in entrusting the distribution of
sugar exclusively to co-operative societies. In Bennett Coleman
Company's case the impugned Newsprint Control Policy was an emanation
of the old policy which was enunciated prior to the Proclamation of
emergency. Relying on Ibrahim's case and Bharat Singh's case, this Court
held that Article 358 does not authorise the taking of detrimental
executive action during the emergency without any legislative authority or
in purported exercise of power conferred by a pre-emergency law which
was invalid when enacted. The decision in Bennett Coleman Company's
case was followed in Meenakshi Mills' case where the executive action
taken during the emergency did not have the authority of any valid law
and the impugned orders having been made under a pre-emergency law
were not immune from attack under Article 358,

446. Respondents relied on a passage in the judgment of Ramaswami J.

who spoke on behalf of the Court in Chief Settlement Commissioner,
Rehabilitation Devartment, Punjab and Ors. etc. v. Om Parkash and Ors.
etc. [9681] 3 S. C. R. 655 to the effect that whatever legislative power
the executive administration possesses must be derived directly from the
delegation of the legislature and exercised validly only within the limits
prescribed. The Court emphatically rejected the notion of inherent or
autonomous law-making power in the executive administration of the
country and observed that the rule of law rejects the conception of the
Dual State in which governmental action is placed in a privileged position
of immunity from control by law on the ground that such a notion is
foreign to our basic constitutional concepts. Respondents also relied upon
the decision of the Privy Council in Eshupbavi Eleko v. Officer
Administering the Government of Nieeria [1931] A. C. 662 where Lord
Atkin observed that in accordance with the British jurisprudence, no
member of the Executive can interfere with the liberty or property of a
British subject except on the condition that he can support the legality of
his action before a Court of" Justice. Our attention was repeatedly drawn
to a further observation made by Lord Aktin that it is a tradition of British
justice that Judges should not shrink from deciding such issues in the face
of the executive. These observations have been considered be this Court
in Makhan Singh's case where, speaking on behalf of the majority,
Gajendragadkar J. said that the sentiments expressed by Lord Aktin were
noble and eloquent but it was necessary to have regard to the previsions
of our Constitution by which we are governed and which has itself made
emergency provisions in order to enable the nation to meet the challenge
of external aggression or internal disturbance. The principle enunciated in
Eleko's case, however lofty and stirring, has no relevance here because
we have to consider the meaning and effect of Article 359(1) which has
no parallel in the English law. Eleko's principle is unquestionably supreme
in times of peace and so is the validity of the observations made by
Ramaswami J. in Om Prakash's case. Both of those cases were concerned
with a totally different problem, the problem of peace, not of war or
internal disturbance.

447. The 'Rule of Law' argument like the 'Basic Feature' argument is
intractable. emergency provisions contained in Part XVIII of the
Constitution which are designed to protect the security of the State are as
important as any other provision of the Constitution. If the true
construction and effect of Article 359(1) is as I have stated it to be, it is
impossible to hold that such a construction violates the rule of law.

The rule of law, during an emergency, is as one finds it in the provisions

contained in Chapter XVIII of the Constitution. There cannot be a
brooding and omnipotent rule of law drowning in its effervescence the
emergency provisions of the Constitution.

448. The Advocate General of Gujarat had peculiar problems to voice,

arising out of the fluid and uncertain political situation in his State. He
was unable to appreciate how the Executive Government of the State
could defy a parliamentary mandate contained in the MISA, either as
regards the procedural or the substantive part of that law. Whatever may
be the requirements of emergency, he seemed to contend, the Gujarat
Government could not, save at grave peril to its existence, defy the
provisions of a law made by the Parliament. The anguish and
embarrassment of the learned Advocate General is understandable, but
the short answer to his contention is that, on the record, the Government
of Gujarat has not been asked to flout the MISA and indeed no one can
dispute the right of the State Government to ensure compliance with the
laws of the land. Indeed, that is its plain and foremost duty. The
important consideration is that in the event of State Government coming
to pass an order of detention in violation of MISA, the detenu will have no
right to enforce his corresponding fundamental right if it is mentioned in
the Presidential Order. The learned Advocate General built his argument
as if, during emergencies, the executive is under an obligation to flout the
laws of the land. Article 359(1) neither compels nor condones the
breaches by the executive of the laws made by the legislature. Such
condonation is the function of an Act of Indemnity.

449. I must now take up for consideration a very important plank of the
respondents' argument that Article 21 is not the sole repository of the
right to life and personal liberty. This argument has been presented
before us from aspects too numerous to mention and scores of instances
have been cited to buttress it. This was to some extent inevitable because
quite a few counsel argued the same point and each had his peculiar,
favourite accent. I will try to compress the arguments without, I hope,
sacrificing their thematic value.

450. The respondents' arguments may be put thus ;

(1) Article 21 is not the sole repository of the right to personal

liberty because that right can be found in Articles 19(1) (b), 20
and 22 also, in view of the decision in the Bank Nationalisation
case MANU/SC/0011/1970 : [1970]3SCR530 , which overruled
Gopalan's case MANU/SC/0012/1950 : 1950CriLJ1383 , these
rights are not mutually exclusive and therefore the suspension of
the right to enforce Article 21 cannot affect the right conferred by
Articles 19, 20 and 22.

(2) Article 21 is not the sole repository of the right to personal

liberty because, (i) an accused convicted of murder and
sentenced to death can assert his right to life by challenging the
conviction and sentence in appeal, in spite of the Presidential
Order under Article 359(1); (ii) if a person is wrongfully confined,
he can ask for hi-; personal liberty by prosecuting the offender in
spite of the Presidential Order; and (iii) if a money-decree is
passed against the Government., the decree can be enforced
even if the right to enforce the right to property is suspended by
the Presidential Order.

(3) Prior to the enactment of the Constitution statutory,

contractual and common law rights were in existence and those
lights can be taken away only by the Legislature. They cannot be
affected by the Presidential Order. The pre Constitution common
law and statutory rights to personal liberty continued in force by
reason of Article 372 of the Constitution, since those rights were
not repugnant to any provision of the Constitution. If the
fundamental right to personal liberty is suspended by the
Presidential Order, the pre Constitution laws will begin to operate
by reason of the theory of eclipse. There is no authority for the
proposition that on the conferment of fundamental rights by the
Constitution, the corresponding pre-existing rights merged in the
fundamental rights and that with the suspension of fundamental
rights, the corresponding pre-existing rights also got suspended.
Article 21 is different in content from the common law right to
personal liberty which was available against private individuals
also, Since Article 21 merely elevates the right of personal liberty
to the status of a fundamental right, the pre Constitution rights
cannot be suspended by the Presidential Order. The object of
Article 21 is to give and not to take. In fact, the very language of
that Article shows that, instead of conferring the right to personal
liberty, it assumed its existence in the first place and then
proceeded by a negative provision to prohibit its deprivation.
Examples of such pre- Constitution rights are:

(i) rights available under the Indian Penal Code and the
Criminal Procedure Code; (ii) rights available under the
law of torts especially the right to sue for damages for
false imprisonment; and (iii) the remedy of habeas
corpus available under Section 491, Criminal Procedure
Code, since the year 1923.

(4) Non-fundamental constitutional rights like those arising under

Articles 256, 265 and 361(3) or natural rights or contractual
rights or the statutory rights to personal liberty are not affected
by the Presidential Order. Statutory rights can only be taken
away in terms of the statute and not by an executive fiat. By
reason of Article 256. the executive power of every State must
ensure compliance with the laws made by the Parliament. The
executive power of the States must therefore comply with
Section 56 and 57 of the Criminal Procedure Code and a person
aggrieved by the violation of those provisions can enforce his
statutory right to personal liberty in spite of the Presidential
Order. By Article 265 no tax can be levied or collected except by
authority of law. A person affected by the violation of this
provision can enforce his right to property even if Article 19 is
suspended. If a process happens to be issued against the
Governor of a State in contravention of Article 361(3), the
Governor can exercise his right to personal liberty despite the
Presidential Order under Article 359(1). Similarly, in cases not
covered by Section 16A of the MISA, if the Advisory Board opines
that the detention is unjustified, the detenu can compel the
Government to accept that opinion, in spite of the Presidential
Order.

(5) Even after the passing of a Presidential Order, Parliament may

create new rights to personal liberty and such rights can be en
forced in spite of the Presidential Order.

(6) civil liberty or personal liberty is not a conglomeration of

positive rights. It operates in an area of free action and no law
can possibly curtail it.
 (7) If a law affecting the fundamental right to personal liberty is
void for want of legislative competence, it can be challenged in
spite of the Presidential Order.

(8) The suspension of the right to enforce personal liberty cannot

confer a licence on executive officers to commit offences against
the law of the land, and if they do so, they can be brought to
book in spite of the Presidential Order.

451. I look at the question posed by the respondents from a different

angle. The emergency provisions of the Constitution are designed to
protect the Security of the State and in order to achieve that purpose,
various powers have been conferred on the Parliament and the President
by Chapter XVIII of the Constitution. One of such powers is to be found in
Article 359(1) under which the President, during the operation of the
emergency, can issue an order suspending the right to move any court for
the enforcement of all or any of the fundamental rights conferred by Part
III. Proceedings commenced prior to the issuance of such an order,
including proceedings taken prior to the declaration of the emergency
itself, automatically remain suspended during the emergency or for such
shorter period as the President may in his order specify. The object of
empowering the President to issue an order under Article 359(1)
suspending the enforcement of the right to personal liberty conferred by
Part III of the Constitution cannot be to save all other rights to personal
liberty except the one conferred by Part III, which to me seems totally
devoid of meaning and purpose. There is nothing peculiar in the content
of the right to personal liberty conferred by Part III so that the
Constitution should provide only for the suspension of the right to enforce
that particular kind of right, leaving all other rights to personal liberty
intact and untouched. In limes of emergencies the executive,
unquestionably though unfortunately, is constrained to take various forms
of action in derogation of the rights of citizens and others, including the
cherished right to personal liberty. The Constitution aims at protecting the
executive, during the operation of emergency, from attacks on the action
taken by it in violation of the rights of individuals. Accordingly, in so far as
the right to personal liberty, for example, is concerned one of the objects
of the emergency provisions is to ensure that no proceeding will be taken
or continued to enforce that right against the executive during the
operation of the emergency. The executive is then left free to devote its
undiluted attention to meeting the threat to the security of the State. This
purpose cannot ever be achieved by interpreting Article 359(1) to mean
that every right to personal liberty shall be enforceable and every
proceeding involving the enforcement of such right shall continue during
the emergency, except to the extent to which the right is conferred by
Part III of the Constitution. The existence of the right to personal liberty
in the pre Constitution period was surely known to the makers of the
Constitution. The assumption underlying the respondent's argument is
that in spite of that knowledge, the Constituent Assembly decided that all
those rights will reign supreme in their pristine glory even during the
emergency and what will remain in abeyance is only the enforcement of
the right to personal liberty conferred by Part III.

The right to personal liberty has no hallmark and therefore when the right
is put in action it is impossible to identify whether the right is one given
by the Constitution or is one which existed in the pre Constitution era. If
the argument of the respondents is correct, no action to enforce the right
to personal liberty can at all fall within the mischief of the presidential
Order even if it mentions Articles 19, 20, 21 and 22 because, every
preliminary objection by the Government to a petition to enforce the right
to personal liberty can be effectively answered by contending that what is
being enforced is either the natural right to personal liberty or generally,
the pre Constitution right to personal liberty. The error of the
respondents' argument lies in its assumption, and in regard to the
argument of some of the counsel in the major articulate premise, that the
qualitative content of the non-constitutional or pre-constitutional right to
personal liberty is different from the content of the right to personal
liberty conferred by Part III of the Constitution.
The right to personal liberty is the right of the individual to personal
freedom, nothing more and nothing less. That right along with certain
other rights was elevated to the status of a fundamental right in order
that it may not be tinkered with and in order that a mere majority should
not be able to trample over it. Article 359(1) enables the President to
suspend the enforcement even of those rights which were sanctified by
being lifted out of the common morass of human rights. If the
enforcement of the fundamental rights can be suspended during an
emergency, it is hard to accept that the right to enforce non-fundamental
rights relating to the same subject matter should remain alive.

452. Article 359(1) contains three important Clauses : (1) The

Proclamation of emergency must be in operation at the time when the
President issues his order; (2) The President must issue an order
declaring the suspension of the right to move any court; and (3) The
power of the President to declare such suspension can extend to such
rights only as are conferred by Part III. If these three conditions are
satisfied, no person can move any court for the enforcement of such of
the rights conferred by Part III as are mentioned in the Presidential Order.

453. The first and foremost question to ask when a proceeding is filed to
enforce a right as against the Government while a Proclamation of
emergency is in operation is, whether the right is mentioned in the
Presidential Order and whether it is the Kind of right conferred by Part III.
Article 21, for example, confers the right to life and personal liberty. The
power of the President therefore extends under Article 359(1) to the
suspension of the right to move any court for the enforcement of the right
to life and personal liberty. The President cannot suspend the
enforcement of any right unless that right is included in Part III which
confers fundamental rights. The President, in my opinion, would be acting
within the strict bounds of his constitutional power if, instead of declaring
the suspension of the right to enforce the right conferred by Article 21 he
were to declare that "the right not to be deprived of life and personal
liberty except according to procedure established by law" shall remain
suspend during the emergency.

454. Article 359(1) does not really contemplate that while declaring the
suspension of the right to move any court, the President must or should
specify the Article or the Articles of the Constitution the enforcement of
rights conferred by which shall be suspended. What Article 359(1)
contemplates is that the President can declare the suspension of the right
to move any court for the enforcement of the rights mentioned in Part III.
The words "conferred by Part III" which occur in Article 359(1) are not
intended to exclude or except from the purview of the Presidential Order,
rights of the same variety or kind as are mentioned in Part III but which
were in existence prior to the Constitution or can be said to be in
existence in the post Constitution era, apart from the Constitution. The
emphasis of the Article is not the right to suspend the enforcement of the
kind of rights mentioned in Part III and not on the fact that those rights
are conferred by Part III. To put it differently, the words "conferred by
Part III" are used only in order to identify the particular rights the
enforcement of which can be suspended by the President and not in order
to impose a limitation on the power of the President so as to put those
rights which exist or which existed apart from the Constitution, beyond
the reach of the Presidential Order. The respondents by their petitions are
enforcing their right to personal liberty and that right is a right conferred
by or mentioned in Part 111 of the Constitution. As 1 have said above, if
instead of saying that the right to enforce the right conferred by Article 21
shall be suspended the President were to say that the right not to be
deprived of life or personal liberty except according to procedure
established by law will remain suspended, no argument of the kind made
before us could reasonably have been made. The true effect of the
Presidential Order, though worded in the way it is, is the same as it would
have been, had it been worded in the manner have indicated.

455. It therefore does not make any difference whether any right to
personal liberty was in existence prior to the enactment of the
Constitution, either by way of a natural right, statutory right, common law
right or a right available under the law of torts. Whatever may be the
source of the right and whatever may be its justification, the right in
essence and substance is the right to personal liberty. That right having
been included in Part III, its enforcement will stand suspended if it is
mentioned in the Presidential Order issued under Article 359(1).

456. The view which I have taken above as regards the scope and
meaning of Article 359(1) affords in my opinion a complete answer to the
contention of the respondents that since Article 21 is not the sole
repository of the right to personal liberty, the suspension of the right to
enforce the right conferred by that Article cannot affect the right to
enforce the right of personal liberty which existed apart from that Article.
I have held that on a true interpretation of the terms of the Presidential
Order read with Article 359(1), what is suspended is the right to move for
the enforcement of the right to personal liberty whether that right is
conferred by Constitution or exists apart from and independently of it.
Otherwise, the Constitution has only done much ado about nothing.

457. All the same I would like, briefly, to deal with the argument of the
respondents on its own merit, particularly the illustrations cited in support
of that argument.

458. It is true that in view of the decision in the Bank Nationalisation case
MANU/SC/0011/1970 : [1970]3SCR530 , the right conferred by Articles
21 and 19 cannot be treated as mutually exclusive. But the suspension of
the right to enforce the right of personal liberty means the suspension of
that right wherever it is found unless its content is totally different as
from one Article to another. The "right conferred by Article 21" is only a
description of the right of personal liberty in order to facilitate its exact
identification and such a description cannot limit the operation of the
Presidential Order to those cases only where the^ right to personal liberty
is claimed under Article 21.

459. The circumstance that the pre Constitution rights continued in force
after the enactment of the Constitution in view of Article 372 does not
make any difference to this position because, even assuming that certain
rights to personal liberty existed before the Constitution and continued
thereafter as they were not repugnant to any provision of the
Constitution, all rights to personal liberty having the same content as the
right conferred by Article 21 would fall within the mischief of the
Presidential Order.

460. The theory of 'eclipse" has no application to such cases because that
theory applies only when a pre Constitution law becomes devoid of legal
force on the enactment of the Constitution by reason of its repugnancy to
any provision of the Constitution. Such laws are not void but they are
under an eclipse so long as the repugnancy lasts. When the repugnancy is
removed, the eclipse also is removed and the law becomes valid.

461. As regards the doctrine of "merger" it is unnecessary to go to the

length of saying that every prior right to personal liberty merged in the
right to personal liberty conferred by Part III. Whether it merged or not, it
cannot survive the declaration of suspension if the true effect of the
Presidential Order is the suspension of the right to enforce all and every
right to personal liberty. In that view, it would also make no difference
whether the right to personal liberty arises from a statute or from a
contract or from a constitutional provision contained in some Part other
than Part III.

462. As regards the illustrations, it is neither proper nor possible to take

each one of them separately and answer them. Hypothetical illustrations
cannot establish a point and practical difficulties have to be solved as and
when they arise. But some of the more important illustrations taken by
the respondents' counsel seem to me to have a simple answer. For
example, when an accused challenges his conviction for murder and the
sentence of death imposed on him for that offence, his remedy by way of
an appeal is not barred by the Presidential Order because he is only trying
to get rid of a judgment which holds him guilty of murder. It is not he who
moved the court for his personal liberty but it is the prosecution which
dragged him to the court to prove the charge of murder against him. The
accused only defends the charge of criminality whether it is in the trial
court or m a higher court. Similarly, if a person is wrongfully confined, the
prosecution of the offender is not intended or calculated to secure the
personal liberty of the victim. The court may in proper cases pass an
order releasing the complainant from wrongful confinement but the true
object of the prosecution is to punish the person who has committed an
offence against the penal law of the land. As regards decretal rights
against the Government, what the decree-holder enforces in execution is
not his right to property. The original cause of action merges in the
decree and therefore what is put into execution is the rights arising under
the decree. The illustration regarding the issuance of a process against
the Governor of a State need not be pursued seriously because such an
event is hardly ever likely to happen and if it does, the gubernatorial
rights may possibly withstand the Presidential Older under Article 359(1).
As regards the flouting of the opinion of the Advisory Board by the
Government, a writ of mandamus compelling the Government to obey the
mandate of the law may perhaps stand on a different footing as the very
nature of such a proceeding is basically different. Lastly, it is unrealistic to
believe that alter the passing of the Presidential Order suspending the
existing constitutional rights, Parliament would create new rights to
personal liberty so as to nullify the effect of the Presidential Order. The
easier way for the Parliament would be to disapprove of the Proclamation
of emergency when it is placed before it under Article 352(2) (b) of the
Constitution or to disapprove of the Presidential Order issued under
Article 359(1) when it is placed before it under Article 359(3) of the
Constitution. But as I have said earlier, it is difficult to furnish a clear and
cogent answer to hypothetical illustrations. In the absence of necessary
facts one can only make an ad hoc answer, as I have attempted to do
regarding the possible issuance of a process against the Governor of a
State. Actually, Article 361(3) speaks of a "Process" for the arrest or
imprisonment of a Governor issuing from any court. Fundamental rights
can be exercised as against judicial orders but the circumstances in which
such a process may come to be issued, if at all, may conceivably affect
the decision of the question whether a presidential Order issued under
Article 359(1) can bar the remedy of an aggrieved Governor.

463. In so far as the illustrative cases go, I would like to add that Article
256 which was chosen by the respondents as the basis of an illustration
does not seem to confer any right on any individual. That Article appears
in Part XI which deals with relations between the Union and the States. A
failure to comply with Article 256 may attract serious consequences but
no court is likely to entertain a grienvance at the instance of the private
party that Article 256 has not been complied with by a State Government.
As regards the claim to personal liberty founded on a challenge to an
order on the ground of excessive delegation, I prefer to express no firm
opinion though the greater probability is that such a challenge may fail in
face of a Presidential Order of the kind which has been passed in the
instant case.

464. I have held above that the existence of common law rights prior to
the Constitution will not curtail the operation of the Presidential Order by
excepting those rights from the purview of the Order. I may add that the
decision of this Court in Dhirubha Devisingh Gohil v. The State of Bombay
MANU/SC/0032/1954 : [1955]1SCR691 is an authority for the proposition
that if any pre Constitution right has been elevated as a fundamental
right by its incorporation in Part III, the pre-existing right and the
fundamental right are to be considered as having been grouped together
as fundamental rights "conferred" by the Constitution. The decision in
Makhan Singh v. State of Punjab MANU/SC/0039/1963 : 1964CriLJ217
also shows that once right to obtain a direction in the nature of habeas
corpus became in 1923 a statutory right to a remedy after the enactment
of Section 491 of the CrPC, it was not open to any party to ask for a writ
of habeas corpus as a matter, of common law.
465. It was contended for the respondents that the High Court have
jurisdiction under Article 226 to issue writs and directions not only for the
enforcement of fundamental rights but "for any other purpose" and since
by their petitions they had really asserted their non fundamental rights,
the High Courts had the jurisdiction to issue appropriate writs or
directions upholding those rights in spite of the Presidential Order. This
argument cannot be accepted because the entire claim of the respondents
is that the order of detention are in violation of the MISA, which in
substance means that the respondents have been deprived of their
personal liberty in violation of Article 21 of the Constitution. By that
Article, no person can be deprived of his life or personal liberty except
according to procedure established by law. The grievance of the
respondents is that they have been deprived of their personal liberty in
violation of the procedure established or prescribed by the MISA. In
substance therefore they are complaining of the violation of a
fundamental right, which it is not open to them to do in view of the
Presidential Order by which the right to move any court for the
enforcement of the right conferred by Article 21 has been suspended.

466. This judgment, long as it is, will be incomplete without at least a

brief discussion of some of the important decisions of this Court which
were referred to during the course of arguments time and again. Before
doing so, a prefatory observation seems called for.

The Earl of Halsbury L. C. said in Quinn v. Leathem [1901] A. C. 495, 506

that the generality of the expressions which may be found in a judgment
are not intended to be expositions of the whole law but are governed and
qualified by the particular facts of the case in which such expressions are
to be found. this Court in the State of Orissa v. Sudhansu Sekhar Misra
and Ors. MANU/SC/0047/1967 : (1970)ILLJ662SC uttered the caution
that it is not a profitable task to extract a sentence here and there from a
judgment and to build upon it because the essence of the decision is its
ratio and not every observation found therein.
Counsel have not done any such shearing but I thought I might being the
study of cases with a self-admonition.

467. A decision of this Court on which the greatest reliance was placed by
the respondents is Makhan Singh v. State of Punjab MANU/SC/0039/1963
: 1964CriLJ217 . The appellants therein were detained under Rule 30(1)
(b) of the Defence of India Rules made by the Central Government under
Section 3 of the Defence of India Ordinance, 1962. They applied for their
release to the Punjab and Bombay High Court under Section 491(1)(b) of
the CrPC, their contention being that certain Section of the Defence of
India Act and Rule 30(1) (b) of the Defence of India Rules were
unconstitutional since they contravened their fundamental rights under
Articles 14, 21 and 22(4) (5) and (7) of the Constitution. The High Court
held that in view of the Presidential Order which was issued on November
3, 1962 under Article 359(1) of the Constitution, the petitions of habeas
corpus filed by the appellants were barred. Being aggrieved by the orders
dismissing their petitions, the detenus filed appeals in this Court which
were heard by a Constitution Bench consisting of 7 Judges. The judgment
of the majority was delivered by Ganjendragadkar J. Subba Rao J. gave a
dissenting judgment.

468. Both the majority and the minority judgments agree that the
Presidential Order would take away the right to move the Supreme Court
under Article 32 and the High Court under Article 226 for the enforcement
of the rights mentioned in the Order. But while the majority took the view
that the petition under Section 491 of the Criminal Procedure Code was
also barred, Subha Rao J. held that the petitioners' right to ask for relief
by filing an application under Section 491 was not affected by the
Presidential Order. This difference in the view of the majority and the
minority is now of no consequence as Section 491 has ceased to be on
the Statute Book after April 1, 1974 when the new CrPC came into force.

469. The conclusion of the Court in Makhan Singh's case may be summed
up thus:

1. Article 359 is reasonably capable of only one construction as

its language is clear and unambiguous.

2. The suspension of Article 19 contemplated by Article 358

removes during the pendency of the emergency the fetters
created on the legislative and executive powers by Article 19 and
if the legislatures make laws or the executive commits acts which
are inconsistent with the rights guaranteed by Article 19, their
validity is not open to challenge either during the continuance of
the emergency or even thereafter.

3. As soon as the Proclamation ceases to operate, the legislative

enactments passed and the executive actions taken during the
course of the said emergency shall be inoperative to the extent to
which they conflict with the rights guaranteed under Article 19
because as soon as the emergency is lifted, Article 19 which was
suspended during emergency is automatically revived and begins
to operate.

4. Article 359, on the other hand, does not purport expressly to

suspend any of the fundamental rights. What the Presidential
Order purports to do by virtue of the power conferred of the
President by Article 359(1) is to bar the remedy of the citizens to
move any court for the enforcement of the specified rights.

5. The Presidential Order cannot widen the authority of the

legislatures or the executive; it merely suspends the rights to
move any court to claim a relief on the ground that the rights
conferred by Part III have been contravened if the said right are
specified in the Order. If at the expiration of the Presidential
Order, Parliament passes any legislation to protect executive
action taken during the pendency of the Presidential Order and
afford indemnity to the executive in that behalf, the validity and
the effect of such legislative action may have to be carefully
scrutinised.

6. The words "the right to move any court" which occur in Article
359(1) refer to the right to move any court of competent
jurisdiction including both the Supreme Court and the High Court.

7. In determining the question as to whether a particular

proceeding falls within the mischief of the Presidential Order or
not, what has to be examined is not so much the form which the
proceeding has taken, or the words in which the relief is claimed,
as the substance of the matter and whether before granting the
relief claimed by the citizen it would be necessary for the Court to
enquire into the question whether any of his specified
fundamental rights have been contravened. If any relief cannot
be granted to the citizen without determining the question of the
alleged infringement of the said specified fundamental rights that
is a proceeding which falls under Article 359(1) and would,
therefore, be hit by the Presidential Order issued under the said
Article.

8. The right to ask for a writ in the nature of habeas corpus

which could once have been treated as matter of Common Law
has become a statutory right after 1923, and after Section 491
was introduced in the Cr. P. C, it was not open to any citizen in
India to claim the writ of habeas corpus on grounds recognised
by Common Law apart from the provision of Section 491(1)(b)
itself.

9. Whether or not the proceedings taken under Section 491(1)

(b) fall within the purview of the Presidential Order, must depend
upon the construction of Article 359(1) and the Order, and in
dealing with this point, one must look at the substance of the
matter and not its form.
 10. 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) of Article 32(1) of the
Constitution, or he may take a proceeding under Section 491(l)
(b) of the Code. But despite the fact that either of the two
remedies can be adopted by a citizen who has been detained
improperly or illegally, the right which he claims is the same if
the remedy sought for is based on the ground that there has
been a breach of his fundamental rights; and that is a right
guaranteed to the citizen by the Constitution, and so, whatever is
the form of the remedy adopted by the detenu, the right which
he is seeking to enforce is the same. therefore the prohibition
contained in Article 359(1) 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).

11. If the detenu is prohibited from asking for and order of

release on account of the Presidential Order, it would not be open
to him to claim a mere declaration either under Section 491 or
under Articles 32 or 226 that the detention is unconstitutional or
void.

12. The right specified in Article 359(1) includes the relevant

right, whether it is statutory, constitutional or constitutionally
guaranteed.

470. After recording these conclusions the majority judgment proceed to

consider the question as to Which are the pleas which are op to a person
to take in challenging the legality or the propriety of 1 detention, either
under Section 491 (1)(b) or under Article 226(1). T conclusions of the
Court on this question are as follows:

(a) If in challenging the validity of his detention order, the detenu

is pleading any right outside the rights specified in the Order, his
right to move any court in that behalf is not suspended, because
it is outside Article 359(1) and consequently outside the
Presidential Order itself." (Emphasis supplied) Accordingly if a
detenu is detained in violation of the mandatory provisions of the
Act it would be open to him to contend that his detention is
illegal. "Such a plea is outside Article 359(1) and the right of the
detenu to move for his release on such a ground cannot be
affected by the Presidential Order."

(b) The exercise of a power malafide is wholly outside the scope

of the Act conferring the power and can always be successfully
 challenged.

(c) It is only in regard to that class of cases falling under Section

491(1) (b) where the legality of the detention is challenged on
grounds which fall under Article 359(1) and the Presidential
Order that the bar would operate. In all other cases falling under
Section 491(1) the bar would be inapplicable and proceedings
taken on behalf of the detenu will have to be tried in accordance
with law.

(d) If a detenu contends that the operative provision of the law

under which he is detained suffers from the vice of excessive
delegation and is, therefore, in valid, the plea thus raised by the
detenu cannot at the threshold be said to be barred by the
Presidential Order. In terms, it is not plea which is relatable to
the fundamental rights specified in the said Order. It is a plea
which is independent of the said rights and its validity must be
examined. (The Court, however, rejected the contention that the
impugned provisions of the Act suffered from the vice of
excessive delegation.)

471. No judgment can be read as if it is a statute. Though the judgment

of the majority contain the conclusions set out in (a) to (d) above, I see
no doubt that these conclusions owe their justification to the peculiar
wording of the Presidential Order which was issued in that case. The
Order dated November 3, 1962, which was the subject matter of Makhan
Singh's case, has been set out at the beginning of this judgment. That
order suspends the right of a person to enforce the rights conferred by
Articles 14, 21 and 22 "if such person has been deprived of any such
rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule
or order made thereunder". The Presidential Order dated June 27, 1975
with which we are concerned in the instant case does not contain any
clause similar to the one extracted above from the order dated November
3, 1962. The inclusion of that clause in the earlier Order has a significant
impact on the question under consideration because, under the earlier
Presidential Order the right to move the court was taken away only if a
person was deprived of his rights under the Defence of India Ordinance or
under any rule or order made under the Ordinance. A petition for habeas
corpus filed during the operation of the Presidential Order dated
November 3, 1962 was not barred at the threshold because the detenu
was entitled to satisfy the court that though his detention purported to be
under the Defence of India Ordinance or the Rules it was in fact not so.
The detenu could establish this by satisfying the court that the detaining
authority had no power to detain him, which could be shown by pointing
out that the pre-conditions of the power to detain were not fulfilled. It
was also open to the petitioner to establish that the order was vitiated by
mala fides because a mala fide order has no existence in the eye of law
and mala fides would take the order out of the statute.

472. The same state of affairs continued under the two subsequent
Presidential Orders dated November 16, 1974 and December 23, 1974.
All the three orders were conditional and were dependent for their
application on the fulfilment of the condition that the person concerned
was deprived of his rights under the Defence of India Ordinance or any
rule or order made under it. The Presidential Order of June 27, 1975
makes a conscious and deliberate departure from the three earlier orders,
the object obviously being to deprive the detenu of the argument that he
has been detained under an order only purports to have been passed
under a particular Act but is in fact in derogation thereof, the terms of the
Act having not been complied with. The Order of June 27, 1975 is not
subject to any condition-precedent for its application and, therefore, there
is no question of the detenu satisfying the court that any pre-condition of
the power of detention has not fulfilled. Some of the observations in
Makhan Singh case may appear to support the argument that certain
pleas which are referred to therein are outside the scope of Article 359(1)
itself. With great respect, those observations really mean that the pleas
are outside the Presidential Order. Article 359(1) is only an enabling
provision and the validity of a plea cannot be tested with reference to that
Article. The right to move a court for the enforcement of the rights
conferred by Part III is not taken away by Article 359(1). It is the
Presidential Order passed in pursuance of the powers conferred by that
Article by which such a consequence can be brought about.

473. It would be useful in this connection to refer to the decision of this

Court in Dr. Ram Manohar Lohia v. State of Bihar and Ors.
MANU/SC/0054/1965 : 1966CriLJ608 . The appellant therein was also
detained under Rule 30(1) (b) of the Defence of India Rules, 1962, and
he moved this Court under Article 32 of the Constitution for his release.
The petition was argued on the basis that it was filed for the enforcement
of the right to personal liberty under Articles 21 and 22 of the
Constitution. A preliminary objection was raised on behalf of the
Government that the petition was barred by reason of the Presidential
Order dated November 3, 1962, the same as in Makhan Singh's case
(supra) Sarkar J., who shared the majority view repelled the preliminary
objection by saying that the petition could have been dismissed at the
threshold if the Order of November 3, 1962 were to take away all rights
to personal liberty under Articles 21 and 22. According to the learned
Judge, the particular Presidential Order did not do so in that, it was a
conditional order which deprived a person of his right to move a court for
the enforcement of a right to personal liberty only if he was deprived of it
by the Defence of India Act or any rule or order made under it. "If he has
not been so deprived, the Order does not take away his right to move a
court." This shows that if the first Presidential Order was unconditional
like the Order in the instant case, Dr. Lohia's petition would have been
rejected by this Court at the threshold. The judgment of Hidaya-tullah J.,
who on behalf of himself and Bachawat J. concurred with the view of
Sarkar J., also shows that the conditional Presidential Order left an area of
inquiry open as to whether the action was taken by a competent authority
and was in accordance with the Defence of India Act and the rules made
thereunder.

474. Yet another case arose under Rule 30(1)(b) of the Defence of India
Rules, 1962 involving the interpretation of the first Presidential Order
dated November 3, 1962. That case is K. Anandan Nambkii and Anr. v.
Chief Secretary, Government of Madras and Ors. MANU/SC/0060/1965 :
1966CriLJ586 Gajendra-gadkar C.J., who delivered the judgment of the
Constitution Bench referred to Makhan Singh's case and pointed out that
the sweep of the Presidential Order dated November 3, 1962 was limited
by its last clause and, therefore, it was open to the detenu to contend
that the order of detention was contrary to the conditions prescribed in
that behalf by the Defence of India Act or the rules made thereunder.

475. In State of Maharashtra v. Prabhakar Pandurang Sangzgiri and Anr.

MANU/SC/0089/1965 : 1966CriLJ311 the respondent, who was detained
under an order passed under Section 30(1)(b) of the Defence of India
Rules, 1962, sought permission from the State Government for publishing
a book which he had written while in jail. On the Government refusing the
permission, he filed a petition under Article) 226 of the Constitution for an
appropriate direction and after that petition was allowed by the High
Court, the Government of Maharashtra filed an appeal in this Court.
Subba Rao J., who delivered the judgment of the Bench, observed while
dismissing the appeal that the President's Order dated November 3, 1962
was a conditional order and, therefore, if a person was deprived of his
personal liberty not under the Act or a rule or order made thereunder but
in contravention thereof, his right to move the court in that regard would
not be suspended.

476. These judgments bring out clearly the ratio of Makhan Singh's case
which arose out of the first Presidential Order dated November 3, 1962.
The Presidential Order with which we are concerned in the instant case is
not subject to the pre-condition that the detenu should have been
deprived of his rights under any particular Act and, therefore, there is no
scope for the inquiry whether the order is consistent or in conformity with
any particular Act. This important distinction has not been fully
appreciated in some of the judgments under appeal.
477. The observations contained in the majority judgment in Makhan
Singh's case that the exercise of a power mala fide is wholly outside the
scope of the Act conferring the power and can always be successfully
challenged at once raises the question whether in spite of the Presidential
Order dated June 27, 1975 it is open to the respondents to show that the
order of detention in any particular case is vitiated by mala fides. The
proposition that a mala fide order has no existence in the eye of law is not
peculiar to Makhan Singh's case but has been accepted in various
decisions of this Court, two of them being Jaichand Lall Sethia v. State of
West Bengal and Ors. MANU/SC/0051/1966 : [1966] Supp. S. C. R. 464,
and Durgadas Shirali v. Union of India and Ors. MANU/SC/0092/1965 :
1966CriLJ812 . A mala fide exercise of power does not necessarily imply
any moral turpitude and may only mean that the statutory power is
exercised for purposes other than those for which the power was intended
by law to be exercised. In view of the fact that an unconditional
Presidential Order of the present kind affects the locus standi of the
petitioner to move any court for the enforcement of any of his
fundamental rights mentioned in the Order, it would not be open to him to
show that the statutory power has been exercised for a purpose other
than the one duly appointed under the law. So long as the statutory
prescription can be seen on the face of the order to have been complied
with, no further inquiry is permissible as to whether the order is vitiated
by legal mala fides.

478. As regards mala fides in the sence of malice-in-fact, the same

position must hold good because the Presidential Order operates as a
blanket ban on any and every judicial inquisition into the validity of the
detention order. Makhan Singh's case as also Jaichand Lall Sethia's and
Durgadas Shirali's arose under the Defence of India Rules, 1962 and the
relevant Presidential Order which applied was the one dated November 3,
1962 which, as stated above, was a conditional order. If in any given case
an order of detention appears on the very face of it to be actuated by an
ulterior motive, the court would have jurisdiction to set it aside because
no judicial inquiry of any sort is required to be undertaken in such a case.
But short of such ex-facie vitiation, any challenge to a detention order on
the ground of actual mala fides is also excluded under the Presidential
Order dated June 27, 1975.

479. Section 16A(9) of the MISA which was introduced by the Third
Amendment Ordinance, 16 of 1975, with effect from June 29, 1975 must
make a significant difference to the question whether in spite of the
Presidential Order, it is open to a detenu to challenge his detention on the
ground of mala fides. Prior to the enactment of Section 16A(9), the
detaining authority was under an obligation by reason of Section 8(1) of
the MJSA to communicate to the detenu the grounds of detention. The
only exception was as stated in Section 8(2), that the detaining authority
need not disclose facts which it considers to be against the public interest
to disclose. Section 16A(1) provides that the provisions of Section 16A
shall have effect during the period of operation of Proclamation of
emergency issued on December 3, 1971 and on June 25, 1975 or for a
period of 12 months from June 25, 1975 whichever period is the shortest.
By Sub-section (2) of Section 16A, the case of every person against
whom an order of detention was made under the MISA on or after June
25, 1975 but before the commencement of Section 16A on June 29, 1975
is required to be reviewed by the appropriate Government for the purpose
of determining whether the detention of such person is necessary for
dealing effectively with the emergency. If the answer be in the
affirmative, the Government is required to make a declaration to that
effect. By Sub-section (3), whenever an order of detention is made under
the Act after June 29, 1975 the officer making the order of" detention or
the appropriate Government is similarly required to consider whether the
detention of the persons is necessary for dealing effectively with the
emergency. If so, a declaration is required to be made to that effect. Sub-
section (9) (a) of Section 16A provides that the grounds on which an
order of detention is made against any person in respect of whom a
declaration is made under Sub-section (2) or Sub-section (3) of Section
16A and any information or materials on which such grounds are based
"shall be treated as confidential and shall be deemed to refer to matters
of State and to be against the public interest to disclose and save as
otherwise provided in this Act. no one shall communicate or disclose any
such grounds, information or material or any document containing such
ground, information or material." Clause (b) of Section 16A (9) provides
that no person against whom an order of detention is made under Sub-
section (1) of Section 3 shall be entitled to the communication or
disclosure of any such ground, information or material, as is referred to in
Clause (a) or the production to him of any document containing such
ground, information or material.

480. I will deal with the constitutionality of Section 16A(9) later but on
the assumption that it is valid, it is plain that not only is a detenu in
regard to whom the necessary declaration is made not entitled to be
furnished with the grounds of detention or the material or information on
which the grounds are based, but neither the Government nor the officer
passing the order of detention can communicate or disclose the grounds,
material or information since they are deemed to refer to matters of State
and against the public interest to disclose. In view of this cast-iron
prohibition, it is difficult to see how, at least those detenus falling within
Sub-sections (2) and (3) of Section 16A can possibly establish, even prim
a facie a charge of factual mala fides. It is the grounds of detention from
which generally a plea of mala fides is spelt out and if the court has
access to the grounds, the material and the information, it becomes
possible to unravel the real motive of detention. In the absence of these
aids, a charge of factual mala fides can only be a fling in the air and
cannot hope to succeed. The observation in Makhan Singh's case,
therefore, that the exercise of a power mala fide can always be
successfully challenged would not apply to cases falling under Sub-
sections (2) and (3) of Section 16A. by reason of the provisions contained
in Sub-section (9) of that Section .

481. Turning to the constitutional validity of Section 16A(9), the

contention of the respondents is that Clause (a) of Section 16A(9) by
which the grounds of detention and the information and materials on
which the grounds are based shall be treated as confidential and shall be
deemed to refer to matters of State and to be against the public interest
to disclose is not a genuine rule of evidence but is designed to encroach
upon the jurisdiction of the High Courts under Article 226 of the
Constitution and is, therefore, void. It is urged that the amendment made
by the Parliament in the exercise of its ordinary legislative power comes
into direct conflict with the High Court's jurisdiction under Article 226
because it would be impossible for any High Court to consider the validity
of an order of detention when a petition for habeas corpus comes before
it, if the law prohibits the disclosure of the grounds of detention and the
necessary information or materials to the High Court.

482. It is a relevant consideration for examining the charge that the true
purpose of Section 16A(9) is to encroach on the powers of the High Court
under Article 226, that the operation of Section 16A itself is limited to the
period during which the two proclamations of emergency dated December
3, 1971 and June 25, 1975 are in operation or for a period of 12 months
from. June 25, 1975 whichever period is the shortest. Following the
proclamations of emergency, the President has issued orders under Article
359(1). By the order dated June 27, 1975 the vary locus standi of the
detenu to enforce any of his fundamental rights mentioned in the
Presidential Order is taken away and consequently, there is no matter of
substance into which the High Courts in the exercise of their writ
jurisdiction can legitimately inquire. The injunction contained in Section
16A(9) is from this point of view innocuous, for it purports to create a
check on a power which for all practical purposes has but a formal
existence. Section 16A(9) is in aid of the constitutional power conferred
by Article 359(1) and further effectuates the purpose of the Presidential
Order issued under that Article. If so it cannot be declared
unconstitutional.

483. Quite apart from this position, I am unable to agree that the rule
enunciated in Section 16A(9) is not a genuine rule of evidence. It is true
that grounds of detention used to be disclosed before the emergence of
Section 16A(9) but that does not mean that the grounds on which the
order of detention is based or the information or materials on which the
grounds are based are not or cannot be of a confidential nature. More
likely than not, such grounds, material and information would be of a
confidential nature relating to matters of State which would be against
the public interest to disclose. Instead of leaving each individual matter to
be judged under Section 123 of the Evidence Act by the Head of the
Department concerned, who can give or withhold the permission as he
thinks fit, Parliament would appear to have considered that since the
grounds, material and information in detention cases are of a confidential
nature, it would be much more satisfactory to provide that they shall be
deemed to refer to matters of State.

484. If Section 16A(9) is unconstitutional so would Sections 123, 124 and

162 of the Evidence Act. Section 123 gives the necessary discretion to the
Head of the Department concerned. By reason of Section 124, the High
Court cannot compel any public officer to disclose communications made
to him in official confidence if the ' officer considers that the public
interest would suffer by the disclosure. By Section 162, the High Court
cannot inspect a document if it refers to matters of State. But these
provisions do not constitute an invasion of the High Court's jurisdiction
under Article 226. The writ jurisdiction of the High Court under that
Article has to be exercised consistently with the laws made by competent
legislatures within the area of their legislative power. I do not think that it
is open to any High Court to say that the law may be otherwise valid but
since it interferes with the High Court's power to undertake the fullest
enquiry into the matter before it, the law becomes unconstitutional. The
principles of res judicata and estoppel, the conclusive presumptions of law
and various provisions of substantive law deny a free play to courts in the
exercise of their jurisdiction. These are not for that reason
unconstitutional qua the High Court's jurisdiction under Article 226.

485. Counsel for the respondents cited the parallel of Section 14 of the
Preventive Detention Act, 1950 which was struck down by this Court in A.
K. Gupalan v. The State MANU/SC/0012/1950 : 1950CriLJ1383 . Sub-
section (1) of that Section provided, in substance, that no court shall,
except for certain purposes, allow any statement to be made or any
evidence to be given before it of the substance of any communication of
the grounds on which a detention order was made against any person or
of any representation made by him. Sub-section (2) of Section 14 made it
an offence for any person to disclose or publish without the previous
authorization of the Government any contents or matter purporting to be
contents of any communication or representation referred to in Sub-
section (1). The right to enforce Article 22 of the Constitution was not
suspended by any Presidential Order when Gopalan's case was decided
and therefore the court was entitled to find whether that Article was
emplaced with. The limits of judicial review have to be co-extensive and
commensurate with the right of an aggrieved person to complain of the
invasion of his rights. Since in Gopalan's case, it was open to the detenu
to contend that the grounds of detention did not bear any connection with
the order of detention, the Court was entitled to examine the grounds in
order to determine whether the plea of the detenu was well-founded. As
Section 14 debarred the court from examining the material which it was
entitled under the Constitution to examine, it was declared ultra vires.
(See pages 130-131, 217-218, 244, 285 and 333). In the instant case the
Presidential Order deprives the respondents of their very locus standi and
therefore, Section 16A(9) cannot be said to shut out an inquiry which is
other wise within the jurisdiction of the High Court to make.

486. Reliance was also placed by the respondents on the decision of this
Court in Mohd. Maqbool Damnoo v. State of Jammu and Kashmir
MANU/SC/0175/1972 : 1972CriLJ597 in which it was observed that the
proviso to Section 8, which was inserted by the Jammu and Kashmir
Preventive Dentention (Amendment) Act, 1967, would have been
unconstitutional if it had the same effect as Section 14 of the Preventive
Detention Act was found to have in Gopalan's case Damnoo's case did not
involve any question of privilege at all and in fact the relevant file was
produced by the Government for the perusal of the High Court. The case
also did not involve any question under Article 359(1) and the effect of a
provision like Section 16A(9) was not even hypothetically considered by
the Court.

487. The view of the Bombay High Court that Section 16A(9) may be read
down so as to enable the court to examine the forbidden material is
impossible to sustain. What use can a court make of material which it
cannot disclose to the detenu and how can it form a judicial opinion on
matters not disclosed to a party before it? The High Court, at the highest,
could satisfy its curiosity by tasting the forbidden fruit but its secret
scrutiny of the grounds and of the file containing the relevant information
and material cannot enter into its judicial verdict.

488. I am, therefore, of the opinion that the challenge made by the
respondents to the constitutionality of Section 16A(9) must fail.

489. Section 18 need not detain me long because it merely declares that
no person who is detained under the Act shall have any right to personal
liberty by virtue of natural law or common law, if any. The 'natural law'
theory was discarded in Kesavananda Bharati's case MANU/SC/0114/1972
: 1972CriLJ1526 and likewise the common law theory was rejected in
Makhan Singh's case. The Section only declares what was the true law
prior to its enactment on June 25. 1975. The amendment of Section 18
by the substitution of the words "in respect or whom an order is made on
purported to be made under Section 3" in place of the words "detained
under this Act" does not render the Section open to a challenge on the
ground of excessive delegation. The words "purported to be made" have
been inserted in order to obviate the challenge that the detention is not in
strict conformity with the MISA. Such a challenge is even otherwsie
barred under the Presidential Order. The object of the added provision is
not to encourage the passing of lawless orders of detention but to protect
during emergency orders which may happen to be in less than absolute
conformity with the MISA. The executive is bound at all times to obey the
mandate of the legislature but the Presidential Order bars during a certain
period the right to complain of any deviation from that rule.

490. In numerous cases detenus have been released by this Court and by
the High Courts on the ground that there is no nexus between the
grounds of detention and the object of the law under which the order of
detention is made or that the acts complained of are too distant in point
of time to raise an apprehension that the past conduct of the detenu is
likely to project itself into the future or that the grounds are too vague for
the formation even of subjective satisfaction or that irrelevant and
extraneous considerations have materially influenced the mind of the
detaining authority. On some few occasions detention orders have also
been set aside on the ground of factual mala fides. An unconditional
Presidential Order obliterates (his jurisprudence by striking at the very
root of the matter. Locus of the detenu is its chosen target and it deprives
him of his legal capacity to move any court for the vindication of his rights
to the extent that they are mentioned in the Presidential Order. In their
passion for personal liberty courts had evolved, carefully and laboriously,
a sort of "detention jurisprudence" over the years with the sole object of
ensuring that the executive does not transcend its duty under the law. In
legal theory that obligation still remains but its violation will now furnish
no cause of action, at least to an extent, and to a significant extent.
Amidst the clash of arms and conflict of ideologies, laws will now be silent
but in times when the Nation is believed to be going through great strains
and stresses, it may be necessary to entrust sweeping powers to the
State. And it is no small comfort that those powers are granted with the
consent of the Parliament. The people of this country are entitled to
expect when they go to the ballot-box that their chosen representatives
will not willingly suffer an erosion of the rights of the people. And the
Parliament, while arming the executive with great and vast powers of
Government, may feel fairly certain that such powers will be reasonably
exercised. The periodical reviews of detention orders. the checks and
counter-checks which the law provides and above all the lofty faith in
democracy which ushered the birth of the Nation will, I hope, eliminate all
fear that great powers are capable of the greatest abuse. Ultimately, the
object of depriving a few of their liberty for a temporary period has to be
to give to many the perennial fruits of freedom.

491. I find it not so easy to summarize my conclusions in simple,

straightforward sentences. The many-sided issues arising before us do
not admit of a monosyllabic answer--'yes', or 'no'. All the same these
broadly are my conclusions:

(1) The Order issued by the President on June 27, 1975 under
Article 359(1) of the Constitution does not suspend the
fundamental principle that all executive action must have the
authority of law to support it.. Nor does the Presidential Order
give to the executive a charter to disobey the laws made by the
Parliament, which is the supreme law-making authority.

(2) The aforesaid Presidential Order, however, deprives a person

of his locus standi to move any court, be it the Supreme Court or
the High Court, for the en forcemeat of his fundamental rights
which are mentioned in the Order. Such deprivation or
suspension ensures during the period that the Proclamation of
emergency is in force or for such shorter period as may be
specified in the Order.

(3) The dominant purpose of the petitions filed by the

respondents in the High Courts is to obtain an order of release
from detention by enforcing the right to personal liberty. The
purpose is not to obtain a mere declaration that the order of
detention is ultra vires the Act under which it is passed. The
former plea is barred by reason of the Presidential Order. The
latter plea is also barred because regard must be had to the
substance of the matter and not to the form in which the relief is
asked for.

(4) The Presidential Order dated June 27, 1975 bars any
investigation or inquiry into the question whether the order of
detention is vitiated by mala fides, factual or legal, or whether it
is based on extraneous considerations or whether the detaining
authority had reached his subjective satisfaction validly on proper
and relevant material.

(5) Whether or not Article 21 of the Constitution is the sole

repository of the right to personal liberty, in a petition filed in the
High Court under Article 226 of the Constitution for the release of
 a person de tainted under the MISA, no relief by way of releasing
the detenu can be granted because no person has the legal
capacity to move any court to ask for such relief. The Presidential
Order takes away such legal capacity by including Article 21
within it. The source of the right to personal liberty is immaterial
because the words" "conferred by" which occur in Article 359(1)
and in the Presidential Order are not words of limitation.

(6) The Presidential Order does not bring about any amendment
of Article 226 and is not open to challenge on that ground.

(7) The Presidential Order neither bars the right of an accused to

defend his personal liberty in the court of first instance or in a
higher court, nor does it bar the execution of decrees passed
against the Government, nor does it bar the grant of relief other
or less than the release of the detenu from detention.

(8) Section 16A(9) of the MISA is not unconstitutional on the

ground that it constitutes an encroachment on the writ
jurisdiction of the High Court under Article 226. There is no
warrant for reading down that Section so as to allow the court to
inspect the relevant files to the exclusion of all other parties.

(9) Section 18 of the MISA does not suffer from the vice of
excessive delegation and is a valid piece of legislation.

492. And so we go back to The Zamora [1916] 2 A. C. 77, Rex v. Halliday

[1917] A. C. 260, Liversidge v. Anderson [1942] A. C. 206, Greene v.
Secretary of State [1942] A. C. 284. A jurisdiction of suspicion is not a
forum for objectivity; "Those who are responsible for national security
must be the sole judges of what the national security requires"; "However
precious the personal liberty of the subject may be, there is something for
which it may well be, to some extent, scarified by legal enactment,
namely, national success in the war, or escape from national plunder or
enslavement". As a result, perhaps the only argument which the court can
entertain is whether the authority which passed the order of detention is
duly empowered to pass it, whether the detenu is properly identified and
whether on the face of the order the stated purpose of detention is within
the terms of law. These questions, in almost all cases, will have an
obvious answer.

493. Counsel after counsel expressed the fear that during the emergency,
the executive may whip and strip and starve the detenu and if this be our
judgment, even shoot him down. Such misdeeds have not tarnished the
record of Free India and I have a diamond-bright, diamond-hard hope
that such things will never come to pass.

P.N. Bhagwati, J.

494. These appeals by special leave raise issues of gravest constitutional

importance. They affect personal liberty which is one of our most
cherished freedoms and impinge on the rule of law which is one of the
great principles that lies at the core of constitutional democracy and gives
content to it. Does a Presidential Order under Article 359, Clause (1)
specifying Article 21 silence the mandate of the law and take away
personal liberty by making it unenforceable in a court of law, or does
judicial scrutiny of legality of detention stand untouched and unimpaired,
so that, despite such Presidential Order, a person who is illegally detained
can seek his freedom by invoking the judicial process. That is the
agonizing question before the Court.

495. The facts giving rise to these appeals have been fully set out in the
judgment of my Lord the Chief Justice and it is not necessary for me to
reiterate them as nothing turns on the facts. None of the writ petitions
out of which these appeals arise has in fact been finally disposed of on
merits. Barring the writ petitions before the Rajasthan High Court and the
Nagpur Bench of the Bombay High Court, where one additional question
has been considered, the only question that has been decided in these
writ petitions is as to their maintainability in view of the Presidential Order
dated 27th June, 1975 issued under Article 359, Clause (1) of the
Constitution. The High Courts of Allahabad, Madhya Pradesh, Andhra
Pradesh, Delhi, Karnataka and Rajasthan and the Nagpur Bench of the
Bombay High Court before whom these writ petitions were heard on the
preliminary issue as to maintainability, took the view that the Presidential
Order, dated 27th June, 1975, did not wholly bar the maintainability of
these petitions, but left open certain grounds of challenge which could yet
be urged against the validity of the order of detention. These different
High Courts were not agreed upon what were the grounds of challenge
which were thus available to an applicant despite the Presidential Order
dated 27th June, 1975. There were differences of opinion amongst them,
but for the purpose of the present appeals, it is not necessary to refer to
those differences as they are not material. The Rajasthan High Court and
the Nagpur Bench of the Bombay High Court also considered the
interpretation and validity of Section 16A, Sub-section (9) of the
Maintenance of Internal Security Act, 1971 and while the Rajasthan High
Court accepted the interpretation of that Sub-section canvassed on behalf
of the Government and upheld its validity even on that interpretation, the
Nagpur Bench of the Bombay High Court held the Sub-section to be valid
by reading it down so as not to exclude the power of the High Court under
Article 226 of the Constitution to call for the grounds, information and
materials on which the order of detention was based. Since in the view of
these High Courts, the writ petitions filed by the detenus were
maintainable, though on certain limited grounds of challenge, each of the
writ petitions was directed to be set down for hearing on merits.
Thereupon each of the aggrieved State Governments obtained special
leave to appeal against the decision of the concerned High Court and that
is how the present appeals have come before this Court.

496. Two questions arise for consideration in these appeals. They have
been formulated by the learned Attorney General appearing on behalf of
the Union of India in the following terms:

(1) Whether, in view of the Presidential Order dated June 27,

1975 under Clause (1) of Article 359, any writ petition under
Article 226 before a High Court for habeas corpus to enforce the
right to personal liberty of a person detained under MISA on the
ground that the order of detention or the continued detention is
for any reason, not under or in compliance with MISA is
maintainable ?

(2) If such a petition is maintainable, what is the scope or extent

of judicial scrutiny, particularly, in view of the said Presidential
Order mentioning, inter alia, Clause (5) of Article 22 and also in
view of Sub-section (9) of Section 16A of MISA?

So far as the second question is concerned, it may be pointed out

straightaway that the learned Attorney General with his usual candor
conceded that if his first contention in regard to maintainability of a writ
petition for habeas corpus is not accepted and the writ petition is held
maintainable, the area of judicial scrutiny would remain the same as laid
down in the decisions of this Court, subject only to the qualification that
the grounds, information and materials, on which the order of detention is
based, would not be available either to the detenu or to the High Court by
reason of suspension of enforcement of the right conferred by Clause (5)
of Article 22 and the enactment of Section 16A, Sub-section (9) of the
Maintenance of Internal Security Act, 1971. The only point which would,
therefore, require to be considered under the second question is in regard
to the interpretation and validity of Sub-section (9) of Section 16A.

497. Before we proceed to consider the first question which turns on the
true interpretation and effect of the Presidential Order dated 27th June,
1975, it would help to place the problem in its proper perspective if we
first examine what is an emergency and how institutions and procedures
different from those in normal times are necessary to combat it. It would
be both profitable and necessary to embark upon this inquiry, because
Article 359, Clause (1) under which the Presidential Order dated 27th
June, 1975 has been issued is a consequential provision which comes into
operation when a Proclamation of emergency is issued by the President
under Article 352. It is evident that a national emergency creates
problems for a democracy no less than for other governments. A
totalitarian Government may handle such a situation without
embarrassment. But the apparent necessities evoked by danger often
conflict gravely with the postulates of constitutional democracy. The
question arises--and that was a question posed by Abraham Lincoln on
July 4, 1861 : can a democ ratio constitutional government beset by a
national emergency be strong enough to maintain its own existence
without at the same time being so strong as to subvert the liberties of the
people it has been instituted to defend. This question is answered
affirmatively by the incontestable facts of history if we have regard to the
experience of emergency governments of three large modern
democracies--the United States, Great Britain and France. There is no
reason why the Indian experience should be otherwise, if the basic norms
of constitutionalism in assumption of emergency powers are observed.
What are these basic norms in a constitutional democracy and what is the
purpose behind assumption of emergency powers are matters which I
shall presently discuss. But before I do so, let me first consider what are
the different types of emergency which may plague the government of a
country.

498. There are three types of crisis in the life of a democratic nation,
three well defined threats to its existence both as nation and democracy.
The first of these is war, particularly a war to repel invasion when "a State
must convert its peace-time political and social order into a war-time
fighting machine and over-match the skill and efficiency of the enemy".
There may be actual war or threat of war or preparations to meet
imminent occurrence of war, all of which may create a crisis situation of
the gravest order. The necessity of concentration of greater powers in the
Government and of contraction of the normal political and social liberties
cannot be disputed in such a case, particularly when the people are faced
with a grim horror of national enslavement. The second crisis is threat or
presence of internal subversion calculated to disrupt the life of the
country and jeopardize the existing of the constitutional government.
Such activity may stem from a variety of causes. Perhaps the most
common is disloyalty to the existing form of government, often
accompanied by a desire to effect changes by violent means. Another
cause may be strong disaffection with certain government policies.
Communal demands for States within the Federal on linguistic or religious
lines may fall within this category. Or the presence of powerful lawless
elements with perhaps no political motivation, but for various reasons
beyond the scope of ordinary machinery of the law, may give rise to this
problem. The third crisis, one recognised particularly in modern times as
sanctioning emergency action by constitutional government, is break
down or potential break down of the economy. It must be recognised that
an economic crisis is as direct a threat to a nation's continuing
constitutional existence as a war or internal subversion. These are three
kinds of emergencies which may ordinarily imperil the existence of a
constitutional democracy.

499. Now, it is obvious that the complex system of government of a

constitutional democratic State is essentially designed to function under
normal peaceful conditions and is often unequal to the exigencies of a
national crisis. When there is an emergency arising out of a national
crisis, a constitutional democratic government has to be temporarily
altered to whatever degree necessary to overcome the peril and restore
normal conditions. This alteration invariably involves government of a
stronger character. The government has to assume larger powers in order
to meet the crisis situation and that means that the people would have
fewer rights. There can be no doubt that crisis government means strong
and arbitrary government and as pointed out by Cecil Carr in his Article
on "Crisis Legislation in Great Britain" published during the Second World
War "in the eternal dispute between Government and liberty, crisis means
more government and less liberty." In fact Scrutton, L.J. never a fulsome
admirer of government departments, made the classic remark in his
judgment in Ronnfeldt v. Phillips 35 Times Law Reports 46 that war
cannot be carried on according to the principles of Magna Carta and there
must be some modification of the liberty of the subject in the interests of
the State, The maxim salus populi suprema lex esto, that is public safety
is the highest law of all, must prevail in times of crisis and the people
must submit to temporary abdication of their constitutional liberties in
order to enable the government to combat the crisis situation which might
otherwise destroy the continued existence of the nation.

500. While dealing with the emergency powers which may be assumed by
a constitutional democracy to deal effectively with a national crisis, it is
necessary to refer to the celebrated writ of habeas corpus. It is the most
renowned contribution of the English common law to the protection of
human liberty. It is one of the most ancient writs known to the Common
Law of England. It is a writ of immemorial antiquity "throwing its roots
deep into the genius" of the Common Law. It is not necessary to trace the
early history of this writ which is to be found in the decision of this Court
in Kanu Sanyal v. District Magistrate, Darjeeling and Ors. [9731] 2 S. C.
C. 674. Suffice it to state that by the 17th Century this writ had assumed
great constitutional importance as a device for impugning the validity of
arbitrary imprisonment by the executive and by invoking it, a person
unlawfully imprisoned could secure his release. As pointed out by
Holdsworth in Vol. 1 of his "History of English Law", "its position as the
most efficient protector of the liberty of the subject was unquestioned
after the great Rebellion". It was for this reason that men began to assign
as its direct ancestor the clauses of the Magna Carta which prohibited
imprisonment without due process of law. This may not be strictly
accurate, but there can be no doubt that, far more effective than any
other remedy, this writ helped to vindicate the right of freedom
guaranteed by the famous words of the Magna Carta. The decision in
Darnel's case (1627) 3 ST 1 was a set-back in the struggle for liberty
since it eroded to some extent the effectiveness of the writ by taking the
view that a return that the arrest was "by the special command of the
King" was a good and sufficient return to the writ, which meant that a
lawful cause of imprisonment was shown. But the Petition of Right, 1627
overruled this decision by declaring such a case of imprisonment to be
unlawful. In the same way, it was enacted in the Habeas Corpus Act,
1640 abolishing the Star Chamber that any person committed or
imprisoned by order of the Star Chamber or similar bodies or by the
command of the King or of the Council should have his habeas corpus.
There were also various other defects which were revealed in course of
time and with a view to remedying those defects and making the writ
more efficient as an instrument of securing the liberty of the subject
unlawfully detained, reforms were introduced by the Habeas Corpus Act,
1679, and when even these reforms were found insufficient, the Habeas
Corpus Act, 1816 was enacted by which the benefit of the provisions of
the Habeas Corpus Act, 1679 was made available in cases of civil
detention and the judges were empowered to inquire into the truth of the
facts set out in the return to the writ. The machinery of the writ was thus
perfected by legislation and it became one of the most important
safeguards of the liberty of the subject and, as pointed out by Lord
Halsbury, L.C., in Cox v. Hakes [1890] 15 A. C. 506 it has throughout
"been jealously maintained by courts of law as a check upon the illegal
usurpation of power by the executive at the cost of the liege".

501. Now, in the United States of America, the right to this important writ
of habeas corpus by means of which the liberty of a citizen is protected
against arbitrary arrest, is not expressly declared in the Constitution, but
it is recognised in Article I, Placitum 9, Clause (2) of the Constitution
which declares that "The privilege of the writ of habeas corpus shall not
be suspended, unless, when in cases of rebellion or invasion, the public
safety may require it". Cooley in his "General Principles of Constitutional
Law in the U.S.A." points out : "The privilege of the writ consists in this :
that, when one complains that he is unlawfully imprisoned or deprived of
his liberty, he shall be brought without delay before the proper court or
magistrate for an examination into the cause of his detention, and shall
be discharged if the detention is found to be unwarranted. The suspension
of the privilege consists in taking away this right to an immediate hearing
and discharge, and in authorising arrests and detentions without regular
process of law." The suspension of the privilege of the writ does not
legalise what is done while it continues : it merely suspends for the time
being the remedy of the writ.

502. The decision of Chief Justice Taney in ex P. Merryman 17 Fed. Cas.

144 (C. C. D. Md. 1861) contains the leading American discussion of the
suspension of the writ of [habeas corpus in a temporary emergency. In
the spring of 1861, the eve of the American civil War, President Lincoln
was confronted by a state of open insurrection in the State of Maryland
following the fall of Fort Sumter on April 15. Railroad communication to
the northern United States had been severed by the Marylanders on April
20 and the Sixth Massachusetts Militia reached Washington only after
fighting its way through the City of Baltimore. In these circumstances and
under the increasing threat of secession, President Lincoln issued a
Proclamation on April 27 authorising General Penfield Scot to suspend the
writ of habeas corpus "at any point on or in the vicinity of the military line
which is now, or shall be used between the City of Philadelphia and the
City of Washington". Another Proclamation of July 2 extended this power
to a similar area between Washington and New York. John Merryman who
was a Marylander openly recruited a company of soldiers to serve in the
Confederate Army and became their drill master and in consequence he
was arrested by the army of Lincoln and held prisoner in Fort McHenry. He
applied for a writ of habeas corpus and, despite the Presidential
authorisation suspending the writ, the Supreme Court presided over by
Chief Justice Taney granted the writ on the view that the power to
suspend the privilege of the writ is a legislative power and the President
cannot exercise it except as authorised by law. History tells us that
President Lincoln declined to implement the order of the Supreme Court
and this would have led to a major constitutional crisis, but the Congress
hastened to resolve the controversy by enacting legislation authorising
the President to suspend the privilege of the writ whenever in his
judgment the public safety requires it. It would, therefore, be seen that
even in United States of America, where personal liberty is regarded as
one of the most prized possessions of man, the Congress has the power
to suspend the writ of habeas corpus and this power has been exercised
in the past, though very sparingly.

503. So also in Great Britain the writ of habeas corpus which, as May
points out, "is unquestionably the first security of liberty" and which
"protects the subject from unfounded suspicions, from aggressions of
power" has been suspended, again and again, in periods of public danger
or apprehension. Parliament, convinced of the exigencies of the situation,
has on several occasions suspended, for the time being, the rights of
individuals in the interests of the State. This of course has had the effect
of arming the executive with arbitrary power of arrest by making it
impossible for a person detained to secure his release even if his
detention is illegal. It has resulted in great diminution in the security of
personal freedom, for, suspension of habeas corpus is verily, in substance
and effect, suspension of the right of personal liberty granted in Magna
Carta, But it has been justified on the ground that whatever be the
temporary danger of placing such power in the hands of the Government,
it is far less than the danger with which the Constitution and the society
are threatened, or to put it differently "when danger is imminent, the
liberty of the subject must be sacrificed to the paramount interests of the
State". Moreover, on each occasion when the writ of habeas corpus has
been suspended, the suspension of the writ has invariably been followed
by an Act of Indemnity "in order to protect officials concerned from the
consequences of any incidental illegal acts which they might have
committed under cover of suspension of the propogative writ". During the
period of emergency, many illegalities might have been committed by the
executive in order to deal with a crisis situation and all such illegalities
have been retrospectively legalised by an Indemnity Act.

504. I may now turn to consider the emergency provisions under our
Constitution. Unlike many of the older constitutions, our Constitution
speaks in detail on the subject of emergency in Part XVIII. That Part
consists of a fascicules of Articles from Article 352 to Article 360. Article
352 enacts that if the President is satisfied that a grave emergency exists
whereby the security of India or of any part of the territory thereof is
threatened, whether by war or external aggression or internal
disturbance, he may, by Proclamation, make a declaration1 to that effect
and such Proclamation is required to be laid before each House of
Parliament and approved by resolutions of both Houses before the
expiration of two months. It is not necessary that there should be actual
occurrence of war or external aggression or internal disturbance in order
to justify a Proclamation of emergency. It is enough if there is imminent
danger of any such crisis. It will be seen that this Article provides for
emergencies of the first two types mentioned above. The third type of
emergency threatening the financial stability of India or any part thereof
is dealt with in Article 360 but we are not concerned with it and hence it
is not necessary to consider the provisions of that Article. So far as the
emergencies of the first two types are concerned, the constitutional
implications of a declaration of emergency under Article 352 are much
wider than in the United States or Great Britain. These are provided for in
the Constitution itself. In the first place, Article 250 provides that while a
Proclamation of emergency is in operation, Parliament shall have the
power to make laws for the whole or any part of the territory of India with
respect to any of the matters enumerated in the State List, which means
that the federal structure based on separation of powers is put out of
action for the time being. Secondly, Article 353 declares that during the
time that Proclamation of emergency is in force, the executive power of
the Union of India shall extend to the giving of direction to any State as
to the manner in which the executive power thereof is to be exercised and
this provision also derogates from the federal principle which forms the
basis of the Constitution. If there is non-compliance by any State with the
directions given by the Union under Article 353, such non-compliance
may attract the provisions of Article 356 and 'President's rule' may be
imposed under that Article and in such event, Parliament may. under
Article 357, Clause (1), confer on the President the power of the
legislature of the State to make laws or to delegate such legislative power
to any other authority. This not only contradicts the federal principle, but
also strikes at the root of representative form of government. Then there
are two Articles, Article 358 and Article 359, which set out certain
important consequences of Proclamation of emergency and they read as
follows:

"358. While a Proclamation of emergency is in operation, nothing

in Article 19 shall restrict the power of the State as defined in
Part III to make any law or to take any executive action which
the State would but for the provisions contained in that part be
competent to make or to take, but any law so made shall, to the
extent of the incompetency, cease to have effect as soon as the
Proclamation ceases to operate, except as respects things done
or omitted to be done before the law so ceases to have effect.

359. (1) Where a Proclamation of emergency is in operation, the

President may by order declare that the right to move any court
for the enforcement of such of the rights conferred by Part III as
may be mentioned in the order and all proceedings pending in
any court for the enforcement of the rights so mentioned shall
remain suspended for the period during which the proclamation is
in force or for such shorter period as may be specified in the
order.

(1A) While an order made under Clause (1) mentioning any of

the rights conferred by Part III is in operation, nothing in that
Part conferring those rights shall restrict the power of the State
as defined in the said Part to make any law or to take any
executive action which the State would but for the provisions
contained in that Part be competent to make or to take, but any
law so made shall, to the extent of the in competency, cease to
have effect as soon as the order aforesaid ceases to operate,
 except as respects things done or omitted to be done before the
law so ceases to have effect.

(2) An order made as aforesaid may extend to the whole or any

part of the territory of India.

(3) Every order made under Clause (1) shall, as soon as may be
after it is made, be laid before each House of Parliament.

It may be pointed out that Clause (1A) did not form part of Article 359
when the Constitution was originally enacted but it was introduced with
retrospective effect by the Constitution (Thirty-eighth Amendment) Act,
1975. We are not directly concerned in these appeals with the
interpretation of Article 358 and Clause (1A) of Article 359, but in order to
arrive at the proper meaning and effect of Clause (1) of Article 359, it will
be relevant and somewhat useful to compare and contrast the provisions
of Article 358 and Clause (1A) of Article 359 on the one hand and Clause
(1) of Article 359 on the other.

505. It would be convenient at this stage to set out the various steps
taken by the Government of India from time to time in exercise of the
emergency powers conferred under Part XVIII of the Constitution. When
hostilities broke out with Pakistan in the beginning of December 1971, the
President issued a Proclamation of emergency dated 3rd December, 1971
in exercise of the powers conferred under Clause (1) of Article 352
declaring that "a grave emergency exists whereby the security of India is
threatened by external aggression". This was followed by two orders, one
dated 5th December, 1971 and the other dated 23rd December, 1974,
issued by the President under Clause (1) of Article 359. It is not
necessary to reproduce the terms of these two Presidential Orders since
they were subsequently rescinded by a Presidential Order dated 25th
December, 1975 issued under clause d) of Article 359. Whilst the first
Proclamation of emergency dated 3rd December, 1971 based on threat of
external aggression continued in force, the President issued another
Proclamation of emergency dated 25th June, 1975 declaring that "a grave
emergency exists whereby the security of India is threatened by internal
disturbance". This Proclamation of emergency was also issued in exercise
of the powers conferred under Article 352, Clause (1) and it was followed
by a fresh Presidential Order dated 27th June, 1975 under Clause (1) of
Article 359. The President, by this Order made under Clause (1) of Article
359, declared that "the right of any person, (including a foreigner) to
move any court for the enforcement of the rights conferred by Article 14,
Article 21 and Article 22 of the Constitution and all proceedings pending in
any court for the enforcement of the above mentioned rights shall remain
suspended for the period during which the Proclamations of emergency
made under Clause (1) of Article 352 of the Constitution on the 3rd
December, 1971 and on the 25th June, 1975 are both in force". The writ
petitions out of which the present appeals arise were filed after the issue
of this Presidential Order and it was on the basis of this Presidential Order
that it was contended on behalf of the State Governments and the Union
of India that the writ petitions were not maintainable, since, by moving
the writ petitions, the detenus sought enforcement of the right of
conferred by Article 21. This contention was substantially negatived by
the High Courts and hence the present appeals were brought by the State
Governments and the Union of India raising the same contention as to the
maintainability of the writ petitions. It may be pointed out that whilst the
present appeals were pending before this Court, the President issued
another Order dated 8th January, 1976 under Clause (1) of Article 359
suspending the enforcement of the rights conferred by Article 19. This
Presidential Order is not material, but I have referred to it merely for the
sake of completeness.

506. Now the orders of detention challenged by the detenus in the

different writ petitions were all expressed to be made in exercise of the
powers conferred by Section 3 of the Maintenance of Internal Security
Act, 1971. The detenus challenged them on various grounds, namely, the
orders of detention were not in accordance with the provisions of the Act,
they were not preceded by the requisite subjective satisfaction which
constitutes the foundation for the making of a valid order of. detention,
they were actuated by malice in law or malice in fact or they were outside
the authority conferred by the Act. The substance of these grounds,
according to the Union of India and the State Governments, was that, by
these orders of detention, the detenus, were deprived of their personal
liberty otherwise than in accordance with the procedure established by
law. This constituted infraction of the fundamental right conferred by
Article 21 and the writ petitions of the detenus were, therefore, clearly
proceedings for enforcement of that fundamental right. But by reason of
the Presidential Order dated 27th June, 1975, the right to move any court
for enforcement of the fundamental right conferred by Article 21 was
suspended during the period when the Proclamations of emergency dated
3rd December, 1971 and 25th June, 1975 were in force and, therefore,
the detenus had no locus standi to file the writ petitions and the writ
petitions were barred. The answer to this contention given on behalf of
the detenus was--and here we are setting out only the broad general
argument--that Article 21 merely defines an area of free action and does
not confer any right and hence it is outside the scope and ambit of Article
359, Clause (1) and consequently outside the Presidential Order itself. It
was also urged on behalf of the detenus that it is a basic principle of the
rule of law that no member of the executive can interfere with the liberty
of a person except in accordance with law. The principle of the rule of law
was recognised and declared by the Judicial Committee of the Privy
Council in Eshugbayi Eleko v. Officer Administering the Government of
Nigeria [1931] A. C. 662 and it was uniformly administered by courts in
India as the law of the land prior to the coming into force of the
Constitution. It was consequently law in for in the territory of India
immediately before the commencement of the Constitution and by reason
of Article 372, it continued in force ever after the coming into force of the
Constitution and since then it has been repeatedly recognised and
adopted by this Court as part of Indian jurisprudence in several decided
cases. Moreover, apart from being continued under Article 372 as law in
force, this principle of the rule of law stems from the constitutional
scheme itself which is based on the doctrine of distribution of powers
amongst different bodies created by the Constitution. Under the
constitutional scheme the executive is a limited executive and it is bound
to act in accordance with law and not go against it. This obligation of the
executive not to act to the detriment of a person without the authority of
law can be enforced under Article 226 by issue of a writ "for any other
purpose". When a detenu files a petition under Article 226 challenging the
validity of the order of detention on the ground that it is not in
accordance with the Act or is outside the authority conferred by the Act,
he seeks to enforce this obligation against the State Government and the
suspension of enforcement of the fundamental right under Article 21 does
not affect the maintainability of his writ petition. The detenus also
contended that in any event the right to personal liberty was a statutory
right and the suspension of the fundamental right conferred by Article 21
did not carry with it suspension of the enforcement of this statutory right.
The Union of India and the State Governments rejoined to this contention
of the detenus by saying that Article 21 was the sole repository of the
right of personal liberty and there was no common law or statutory right
in a person not to be deprived of his personal liberty except in accordance
with law, apart from that contained in Article 21 and, therefore, the writ
petitions filed by the detenus were in substance and effect petitions for
enforcement of the right conferred by Article 21 and hence they were not
maintainable.

507. Before we proceed to consider these contentions which have been

advanced before us, it is necessary to remind ourselves that the
emergency provisions in Part XVIII of the Constitution make no distinction
whether the emergency is on account of threat to the security of India by
war or external aggression or on account of threat to the security of India
by internal disturbance. The same provisions are applicable alike in both
situations of emergency, irrespective of the reason for which emergency,
has been declared. The legal consequences are the same and, therefore,
whatever interpretation we place on Article 359, Clause (1) in the present
case which relates to declaration of emergency on account of internal
disturbance would apply equally where the emergency is declared on
account of war or external aggression by a hostile power. If we take the
view that the Presidential Order under Article 359, Clause (1) suspending
enforcement of Article 21 does not bar the remedy of a detained person
to seek his release on the ground that his detention is illegal, it would be
open to a detained person to challenge the legality of his detention even
when there is emergency on account of war or external aggression,
because, barring Article 359, there is no other provision in the
Constitution which can even remotely be suggested as suspending or
taking away the right to move the Court in cases of illegal detention. The
consequence would be that even in a perilous situation when the nation is
engaged in mortal combat with an enemy, the courts would be free to
examine the legality of detention and even if a detention has been made
for efficient prosecution of the war or protecting the nation against enemy
activities, it would be liable to be struck down by the courts if some
procedural safeguard has been violated though it may be bona fide and
through inadvertence. This would imperil national security and the
Government of the day would be helpless to prevent it. The question is :
whether such is the interpretation of Article 359, Clause (1). Of course, if
that is the only possible interpretation, we must give effect to it
regardless of the consequence, leaving it to the constituent authority to
amend the Constitution, if it so thinks fit. But we may ask ourselves :
could the Constitution makers have intended that even in times of war or
external aggression, there should be no power in the President, as the
head of the Nation, to bar judicial scrutiny into legality of detention. It
may be pointed out that even in the United States of America, the
President has power under Article I Placitum 9, Clause (2) of the United
States Constitution to suspend the privilege of the writ of habeas corpus
"when in cases of rebellion or invasion the public safety may require it".
The British Parliament has also on several occasions in the past
suspended the writ of habeas corpus by legislative enactment, though in
limited classes of cases. The Constitution makers were obviously aware
that even in these countries which are essentially democratic in character
and where the concept of constitutional government has had its finest
flowering, the power to exclude judicial review of legality of detention
through the means of a writ of habeas corpus has been given to the
Supreme legislature or the head of the State and they must have realised
that this was a necessary power in times of national peril occasioned by
war or external aggression. Could the Constitution makers have intended
to omit to provide for conferment of this power on the head of the State
in our Constitution?

508. We must also disabuse our mind of any notion that the emergency
declared by the Proclamation dated 25th June, 1975 is not genuine, or to
borrow an adjective used by one of the lawyers appearing on behalf of the
interveners, is 'phoney'. This emergency has been declared by the
President in exercise of the powers conferred on him under Article 352,
Clause (1) and the validity of the Proclamation dated 25th June, 1975
declaring this emergency has not been assailed before us. Mr. Shanti
Bhushan and the other learned Counsel appearing on behalf of the
detenus in fact conceded before us that, for the purpose of the present
appeals, we may proceed on the assumption that the declaration of
emergency under the Proclamation dated 25th June, 1975 is valid. But if
this emergency is taken as' valid, we must equally presume that it is
genuine and give full effect to it, without any hesitation or reservation.

509. With these prefatory observations I will now turn to examine Clause
(1) of Article 359 under which the Presidential Order has been issued. The
language of this clause is clear and explicit and does not present any
difficulty of construction. It says that where a Proclamation of emergency
is in operation, the President may by order suspend the right to move any
court for the enforcement of such of the rights conferred by Part III as
may be mentioned in the Order. Any or all of the rights conferred by Part
III can find a place in the Presidential Order. Whilst the Presidential Order
is in force, no one can move any court for the enforcement of any of the
specified fundamental rights. I shall presently discuss whether Article 21
can be said to confer any right, but assuming it does--and, as will be
evident shortly, that is my conclusion--the right to move any court for the
enforcement of the fundamental right guaranteed by Article 21 may be
suspended by specifying it in the Presidential Order. When that is done,
no one can move any court, and any court would mean any court of
competent jurisdiction, including the High Courts and the Supreme Court.,
for enforcement of the right conferred by Article 21. The words "the right
to move any court for the enforcement" are wide enough "to include all
claims made by citizens in any court of competent jurisdiction when it is
shown that the said claims cannot be effectively adjudicated upon without
examining the question as to whether the citizen is, in substance, seeking
to enforce any of the specified fundamental rights". Vide Makhan Singh v.
State of Punjab MANU/SC/0039/1963 : 1964CriLJ217 . therefore, there
can be no doubt that in view of the Presidential Order which mentions
Article 21, the detenus would have no locus standi to maintain their writ
petitions, if it could be shown that the writ petitions were for enforcement
of the right conferred by Article 21.

510. That should logically take me straight to a consideration of the

question as to what is the scope and content of the right conferred by
Article 21, for without defining it, it would not be possible to determine
whether the right sought to be enforced by the detenus in their writ
petitions is the right guaranteed under Article 21 or any other distinct
fight. But before I examine this question, it would be convenient first to
deal with Clause (1A) of Article 359 and ascertain its meaning and effect.
Clause (1A) of Article 359 did not find a place in the Constitution when it
was originally enacted, but it was inserted with retrospective effect by the
Constitution (Thirty-eighth) Amendment Act, 1975. It provides that while
an order made under Clause (1) of Article 359 mentioning any of the
rights conferred by Part III is in operation, nothing in that Part conferring
those rights shall restrict the power of the State to make any law or to
take any executive action which the State would, but for the provisions
contained in that Part, be competent to make or to take. It will be noticed
that the language of Clause (1A) of Article 359 is in the same terms as
that of Article 358 and the decisions interpreting Article 358 would,
therefore, afford considerable guidance in the interpretation of Clause
(1A) of Article 359. But before I turn to those decisions, let me try to
arrive at the proper meaning of that clause on a plain interpretation of its
language.

511. In the first place, it is clear that Clause (1 A) of Article 359 is

prospective in its operation, for it says that, while a Presidential Order is
in operation, nothing in the Articles mentioned in the Presidential Order
shall restrict the power of the State to make any law or to take any
executive action which the State would, but for the provisions contained
in Part III, be competent to make or to take. This clause does not operate
to validate a legislative provision or executive action which was invalid
because of the constitutional inhibition before the Proclamation of
emergency. Secondly, it may be noted that the fundamental rights
operate as restrictions on the power of the State, which includes the
executive as well as the legislature. When a Presidential Order is issued
under Article 359, Clause (1), the fundamental right mentioned in the
Presidential Order is suspended, so that the restriction on the power of
the executive or the legislature imposed by the fundamental right is lifted
while the Presidential Order is in operation and the executive or the
legislature is free to make any law or to take any action which it would,
but for the provisions contained in Part III, be competent to make or to
take. The words "but for the provisions contained in that Part", that is,
but for the fundamental rights, means "if the fundamental rights were not
there". The question which has, therefore, to be asked is : if the
fundamental rights were not there in the Constitution, would the
executive or the legislature be competent to make the impugned law or to
take the impugned executive action? If it could, it would not be restricted
from doing so by reason of the particular fundamental right mentioned in
the Presidential Order. The Presidential Order would, therefore, have the
effect of enlarging the power of the executive of the legislature by freeing
it from the restriction imposed by the fundamental right mentioned in the
Presidential Order, but it would not enable the legislature or the executive
to make any law or to take any executive action which it was not
otherwise competent to make or to take. Now it is clear that, if the
fundamental rights were not there in the Constitution, the executive being
limited by law would still be unable to take any action to the prejudice of
a person except by authority of law and in conformity with or in
accordance with law and, therefore, even if the Presidential Order
mentions Article 21, Clause (1A) of Article 359 would not enable the
executive to deprive a person of his personal liberty without sanction of
law and except in conformity with or in accordance with law. If an order of
detention is made by the executive without the authority of law, it would
be invalid and its invalidity would not be cured by Clause (1A) of Article
359, because that clause does not protect executive action taken without
lawful authority. An unlawful order of detention would not be protected
from challenge under Article 21 by reason of Clause (1A) of Article 359
and the detenu would be entitled to complain of such unlawful detention
as being in violation of Article 21, except in so far as his right to move the
court for that purpose may be held to have been taken away by Clause
(1) of Article 359.

512. This interpretation of Clause (1A) of Article 359 is clearly supported

by the decision of this Court in State of Madhya Pradesh v. Thakur Bharat
Singh MANU/SC/0043/1967 : [1967]2SCR454 and the subsequent
decisions following it, which relate to the interpretation of the similarly
worded Article 358. What happened in Bharat Singh's case (supra) was
that whilst the Proclamation of emergency dated October 20, 1962 was in
operation, the State Government made an order under Sub-section (1) of
Section 3 of the Madhya Pradesh Public Security Act, 1959 directing that
Bharat Singh shall not be in any place in Raipur District and shall
immediately proceed to and reside in Jhabua. Bharat Singh challenged the
validity of the order inter alia on the ground that Sub-section (1) of
Section 3 of the Act infringed the fundamental rights guaranteed under
Clauses (d) and (e) of Article 19(1). The State Government sought to
meet the challenge by pleading the bar of Article 35 S. But this Court held
that Article 358 had no application because Sub-section (1) of Section 3
of the Act which was impugned in the petition was a pre-emergency
legislation. this Court, speaking through Shah, J. observed:

Article 358 which suspends the provisions of Article 19 during an

emergency declared by the President under Article 352 is in
terms prospective : after the proclamation of emergency nothing
in Article 19 restricts the power of the State to make laws or to
take any executive action which the State but for the provisions
contained in Part III was competent to make or take. Article 358
however does not operate to validate a legislative provision which
was invalid because of the constitutional inhibition before the
proclamation of emergency.
this Court accordingly proceeded to consider the validity of Section 3,
Sub-section (1) of the Act and held that Clause (b) of that Sub-section
was unconstitutional as it infringed the fundamental rights under clauses
(d) and (e) of Article 19(1) and if it was void before the Proclamation of
emergency,' "it was not revived by the Proclamation".

But on this view, another contention was put forward on behalf of the
State Government and that was that Article 358 protects not only
legislative but also executive action taken after the Proclamation of
emergency and, therefore, executive action taken by the State would not
be liable to be challenged on the ground that it infringes the fundamental
rights under Article 19, and consequently, the Order of the State
Government, though made under void law was protected against
challenge under Article 19. This contention was also rejected by the Court
in the following words:

In our judgment, the argument involves a grave fallacy. All

executive action which operates to the prejudice of any person
must have authority of law to support it and the terms of Article
358 do not detract from that rule. Article 358 does not purport to
invest the State with arbitrary authority to take action to the
prejudice of citizens and others it merely provides that so long as
the proclamation of emergency subsists laws may be enacted,
and executive action may be taken in pursuance of lawful
authority, which if the provisions of Article 19 were operative
would have been invalid.

The view taken by the Court was that it is only where executive action is
taken in pursuance of lawful authority that it is immune from challenge
under Article 19 and in such a case even if it conflicts with the
fundamental rights guaranteed under that Article, it would be valid. But
where executive action is taken without lawful authority, as for example,
where it is taken without the authority of any law at all or in pursuance of
a law which is void, it is not protected from challenge under Article 19 by
Article 358 and it would be void to the extent it violates Article 19.

513. The same view was taken by this Court in District Collector of
Hyderabad v. M/s. Ibrahim &. Co. MANU/SC/0070/1970 : [1970]3SCR498
where this Court said, without referring expressly to the decision in
Bharat Singh's case (supra) that "-- the executive order immune from
attack is only that order which the State was competent, but for the
provisions contained in Article 19, to make", and that "executive action of
the State Government, which is otherwise invalid, is not immune from
attack merely because the Proclamation of emergency is in operation
when it is taken". The reference here was to immunity from attack under
Article 19 and it was held that executive action which was contrary to law
and hence invalid, was not protected from attack under Article 19 by
reason of Article 358. So also in Bennett Coleman & Co. v. Union of India
MANU/SC/0038/1972 : [1973]2SCR757 , this Court referred to the
decisions in Bharat Singh's case (supra) and Ibrahim's case (supra) and
observed : "Executive action which is unconstitutional is immune during
Proclamation of emergency. During the Proclamation of emergency Article
19 is suspended. But it would not authorise the taking of detrimental
executive action during the emergency affecting fundamental rights in
Article 19 without any legislative authority or any purported exercise of
power conferred by any pre-emergency law which was invalid when
enacted". this Court also said to the same effect in Shree Meenakshi Mills
Ltd. v. Union of India MANU/SC/0064/1973 : [1974]2SCR398 : "-- if it
can be shown that the executive action taken during the emergency has
no authority of a valid Jaw, its constitutionality can be challenged". These
observations clearly show that where executive action is taken without
any legislative authority or in pursuance of a law which is void, it would
not be protected by Article 358 from challenge under Article 19 and it
would be unconstitutional to the extent to which it conflicts with that
Article.

514. If this be the interpretation of Article 358 as laid down in the

decision'; of this Court, a fortiori a like interpretation must be placed on
Clause (1A) of Article 359, as both are closely similar in form as well as
language. It must, therefore, be held that even though a Presidential
Order issued under Clause (1) of Article 359 mentions Article 21, where it
is found that a detention has not been made in pursuance of lawful
authority or in other words, the detention is without the authority of law,
whether by reason of there being no law at all or by reason of the law
under which the detention is made being void, Clause (1 A) of Article 359
would not protect it from challenge under Article 21 and it would be in
conflict with that Article. The only question then would be whether the
detenu would be entitled to challenge the validity of the detention as
being in breach of Article 21, in view of Clause (1) of Article 35'' read with
the Presidential Order mentioning Article 21.

515. Now, at the outset, a contention of a preliminary nature was

advanced by Mr. Shanti Bhushan, learned Advocate appearing on behalf of
some of the detenus, that Clause (1) of Article 359 can have no operation
in cases where a detenu seeks to enforce his right of personal liberty by
challenging the legality of his detention. Mr. Shanti Bhushan contended,
and in this contention he was strongly supported by Mr. Jeth-malani, that
personal liberty is not a conglomeration of positive rights but is merely a
negative concept denoting an area of free action to the extent to which
law does not curtail it or authorise its curtailment and such a negative
right cannot by its very nature be the subject of conferment under Article
21. The argument of counsel based on this contention was that when
Article 359 Clause (1) speaks of suspension of "the right to move any
court for the enforcement of such of the rights conferred by Part III as
may be mentioned in the order", it cannot include reference to the right
of personal liberty in Article 21, because it cannot be said of such a right
that it is conferred by Article 21. It was urged that Article 21 cannot
therefore appropriately find a place in a Presidential Order under Clause
(1) of Article 359 and even if it is erroneously mentioned there; it can
have no legal sequitur and cannot give rise to the consequences set out in
Clause (1) of Article 359. This argument was sought to be supported by
reference to two well known text books on jurisprudence, one by Salmond
and the other by Holland and the Declaration of the Rights of Man and the
Citizen adopted by the French National Assembly was also relied upon for
this purpose. There is, however, no merit in this argument. The words
'rights conferred by Part III' cannot be read in isolation, nor can they be
construed by reference to theoretical or doctrinaire considerations. They
must be read in the context of the provisions enacted in Part III in order
to determine what are the rights conferred by the provisions in that Part.
Part III is headed "Fundamental Rights" and it deals with fundamental
rights under seven heads, namely, right to equality, right to freedom,
right against exploitation, right to freedom of religion, cultural and
educational rights, right to property and right to constitutional remedies.
Articles 19 to 22 occur under the heading "Right to Freedom" and what is
enacted in Article 21 is a right, namely, the right to life and personal
liberty. It is true that Article 21 is couched in negative language, but it is
axiomatic that to confer a right it is not necessary to use any particular
form of language. It is not uncommon in legislative practice to use
negative language for conferring a right. That is often done for lending
greater emphasis and strength to the legislative enactment. One instance
may be found in Section 298, Sub-section (1) of the Government of India
Act, 1935 which provided that no subject of His Majesty domiciled in India
shall on grounds only of religion, place of birth descent, colour or any of
them be ineligible for office under the Crown in India, or be prohibited on
any such grounds from acquiring, holding or disposing of property or
carrying on any occupation, trade, business or profession in British India.
Though this provision was couched in negative language, the Judicial
Committee of the Privy Council in Punjab Province v. Daulat Singh 73
Indian Appeals 59 construed it as conferring a right on every subject of
His Majesty, domiciled in India.

516. Similarly, Article 14 also employs negative language and yet it was
construed to confer a fundamental right on every person within the
territory of India, S. R. Das, C.J., pointed out in Basheshar Nath v. The
Commissioner of Income Tax, Delhi & Rajasthan [1959] Su. (1) S. C. R.
529 that it is clear from the language of Article 14 that "The command of
that Article is directed to the State and the reality of the obligation thus
imposed on the State is the measure of the fundamental right which
every person within the territory of India is to enjoy."

(emphasis supplied)
517. Article 31, Clause (1) is also couched in negative language : it is
almost in the same form as Article 21. Speaking about Article 31, S. R.
Das, J. observed in State of Bihar v. Maharajadhiraj Kameshwar Singh, of
Dharbhanga and Ors. MANU/SC/0019/1952 : [1952]1SCR889 . "It confers
a fundamental right in so far as it protects private property from State
action. The only limitation put upon the State action is the requirement
that the authority of law is prerequisite for the exercise of its power to
deprive a person of his property. This confers some protection on the
owner, in that, he will not be deprived of his property save by authority of
law and this protection is the measure of the fundamental right. It is to
emphasise this immunity from State action as a fundamental right (that
the clause has been worded in negative language ..." (emphasis
supplied). If Article 31(1), by giving a limited immunity from State action,
confers a fundamental right, it should follow equally on a parity of
reasoning that Article 21 also does so. In fact, this Court pointed out in so
many terms in P. D. Shamdasani v. Central Bank of India Ltd.
MANU/SC/0017/1951 : [1952]1SCR391 : that Clause (1) of Article 31 "is
a declaration of fundamental right of private property in the same
negative form in which Article 21 declares the fundamental right to life
and liberty".

518. Then again in R. C. Cooper v. Union of India MANU/SC/0011/1970 :

[1970]3SCR530 this Court in a majority judgment to which ten out of
eleven judges were parties said:

--it is necessary to bear in mind the enunciation of the guarantee

of fundamental rights which has taken different forms. In some
cases it is an express declaration of a guaranteed right : Article
29(1), 30(1), 26, 25 and 32, in others to ensure protection of
individual rights they take specific forms of restrictions on State
action--legislative or executive --Articles 14, 15, 16, 20, 21,
22(1), 27 and 28; The enunciation of rights either express or by
implication does not follow a uniform pattern. But one thread
runs through them; they seek to protect the rights of the
individual or groups of individuals against infringement of those
rights within specific limits. Part III of the Constitution weaves a
pattern of guarantees on the texture of basic human rights.
This statement of the law establishes clearly and without doubts that
Article 21 confers the fundamental right of personal liberty.

519. Let us, for a moment, consider what would be the consequences if
Article 21 were construed as not conferring a right to personal liberty.
Then there would be no fundamental right conferred by Article 21 and
even if a person is deprived of his personal liberty otherwise than in
accordance with the procedure established by law and there is
infringement of Article 21, such person would not be entitled to move the
Supreme Court for a writ of habeas corpus under Article 32, for that
Article is available only for enforcement of the rights conferred by Part III.
That would be a startling consequence, as it would deprive the Supreme
Court of a wholesome jurisdiction to protect the personal liberty of an
individual against illegal detention. Let it not be forgotten that the
Supreme Court has exercised this jurisdiction in a large number of cases
over the last 25 years and set many detenus at liberty where it found that
they were illegally detained. All this exercise of jurisdiction in the past
would be rendered illegal and void. Ever since the commencement of the
Constitution, this Court has always regarded Article 21 as conferring the
fundamental right of personal liberty which can be enforced in this Court
by a petition under Article 32 and there is no justification for departing
from this well settled constructional position.

520. What then is the scope and ambit of this fundamental right
conferred by Article 21 ? The first question that arises in this connection is
: what is the meaning and content of the word 'personal liberty' in this
Article ? This question came up for consideration before a Bench of six
judges of this Court in Kharak Singh v. State of U.P. and Ors.
MANU/SC/0085/1962 : 1963CriLJ329 . The majority judges took the view
"that 'personal liberty' is used in the Article as a compendious term to
include within itself all the varieties of rights which go to make up the
'personal liberties' of man other than those dealt with in the several of
clauses of Article 19 (1). In other words, while Article 19(1) deals with
particular species or attributes of that freedom, 'personal liberty' in Article
21 takes in and comprises the residue". The minority judges, however
disagreed with this view taken by the majority and explained their
position in the following words : "No doubt the expression 'personal
liberty' is a comprehensive one and the right to move freely is an
attribute of personal liberty. It is said that the freedom to move freely is
carved out of personal liberty and, therefore, the expression 'personal
liberty' in Article 21 excludes that attribute. In our view, this is not a
correct approach. Both are independent fundamental rights, though there
is overlapping. There is no question of one being carved out of another.
The fundamental right of life and personal liberty have many attributes
and some of them are found in Article 19. If a person's fundamental right
under Article 21 is infringed, the State can rely upon a law to sustain the
action, but that cannot be a complete answer unless the said law satisfies
the test laid down in Article 19(2) so far as the attributes covered by
Article 19(1) are concerned." There can be no doubt that in view of the
decision of this Court in R. C. Coopers case (supra) the minority view
must be regarded as correct and the majority view must be held to have
been overruled. No attribute of personal liberty can be regarded as having
been carved out of Article 21. That Article protects all attributes of
personal liberty against executive action which is not supported by law. It
is not necessary for the purpose of the present appeals to decide what
those attributes are or to identify or define them. It is enough to say that
when a person is detained, there is deprivation of personal liberty within
the meaning of Article 21.

521. Now Article 21 gives protection against deprivation of personal

liberty but what is the nature and extent of this protection ? In the first
place, it may be noted that this protection is only against State action and
not against private individuals. Vide P. D. Shamdasani v. Central Bank of
India Ltd. (supra) and Smt. Vidya Verma v. Dr. Shiv Narain [1955] 2 S. C.
R. 983 Secondly, it is clear from the language of Article 21 that the
protection it secures is a limited one. It says and I am quoting here only
that part of the Article which relates to personal liberty, that no one shall
be deprived of his personal liberty except by the procedure prescribed by
law. The meaning of the word 'law' as used in this Article came to be
considered by this Court in A. K. Gopalan v. State of Madras [1950] S. C.
R. 88 and it was construed to mean 'enacted law' or 'State law'. Kania,
C.J., observed : "It is obvious that--law must mean enacted law", and to
the same effect spoke Patanjali Sastri, J., when he said : "In my opinion
'law' in Article 21 means 'positive or State made law' ". So also
Mukherjea, J., said that his conclusion was that "in Article 21 the word
'law' has been used in the sense of State made law", and Das, J. too
expressed the view that law in Article 21 must mean State made law. The
only safeguard enacted by Article 21, therefore, is that a person cannot
be deprived of his personal liberty except according to procedure
prescribed by 'State made' law. If a law is made by the State prescribing
the procedure for depriving a person of his personal liberty and
deprivation is effected strictly in accordance with such procedure, the
terms of Article 21 would be satisfied and there would be no infringement
of the right guaranteed under that Article.

522. Now, based on the phraseology "except according to procedure

established by law" in Article 21, an argument was advanced on behalf of
the detenus that it is only where procedure prescribed by the law has not
been followed in making the order of detention that Article 21 is attracted
and the right conferred by that Article is breached and not where an order
of detention is made without there being any law at ail or where there is a
law, outside the authority conferred by it. It was urged that where an
order of detention is challenged as mala fide or as having been made
without the requisite subjective satisfaction, the challenge would not be
on the ground of breach of the procedure prescribed by the Act but it
would be on the ground that the order of detention is outside the
authority of the Act and such a challenge would not be covered by Article
21. This argument is, in my opinion, wholly unsustainable. It is clear on
plain natural construction of its language that Article 21 imports two
requirements : first, there must be a law authorising deprivation of
personal liberty, and secondly, such law must prescribe a procedure. The
first requirement is indeed implicit in the phrase "except according to
procedure prescribed by law". When a law prescribes a procedure for
depriving a person of personal liberty, it must a fortiori authorise such
deprivation. Article 21 thus provides both substantive as well as
procedural safeguards. This was pointed out by Patanjali Sastri, J. in A. K.
Gopalan v. State of Madras (supra) at page 195 of the Report where the
learned Judge said:

If Article 21 is to be understood as providing only procedural

safeguards, where is the substantive right to personal liberty of
non-citizens to be found in the Constitution ? Are they denied
such right altogether ? If they are to have no right of personal
liberty, why is the procedural safeguard in Article 21 extended to
them ? And where is that most fundamental right of all, the right
to life, provided for in the Constitution ? The truth is that Article
21, --presents an example of the fusion of procedural and
substantive rights in the same provision--the first and essential
step in a procedure established by law for such deprivation must
be a law made by a competent legislature authorising such
deprivation.

Mahajan, J. also pointed out in the same case at page 229 of the Report:

Article 21, in my opinion, lays down substantive law as giving

protection to life and liberty inasmuch as it says that they cannot
be deprived except according to the procedure established by
law; in other words, it means that before a person can be
deprived of his life or liberty as a condition precedent there
should exist some substantive law conferring authority for doing
so and the law should further provide for a mode of procedure for
such deprivation.

S. R. Das, J. too spoke in the same strain when he negatived the

argument "that personal liberty as a substantive right is protected by
Article 19(1) and Article 21 gives only an additional protection by
prescribing the procedure according to which that right may be taken
away." It would, therefore, be seen that both the safeguards of Article 21,
substantive as well as procedural, have to be complied with in order that
there should be no infraction of the right conferred by that Article. Where
there is a law authorising deprivation of personal liberty, but a person is
detained otherwise than in conformity with the procedure prescribed by
such law, it would clearly constitute violation of Article 21. And so also
there would be breach of Article 21, if there is no law authorising
deprivation of personal liberty and yet a person is detained, for then the
substantive safeguard provided in the Article would be violated. therefore,
when a detenu challenges an order of detention made against him on the
ground that it is mala fide or is not preceded by the requisite subjective
satisfaction, such challenge would fall within the terms of Article 21.

523. It is also necessary to point out two other ingredients of Article 21.
The first is that there must not only be a law authorising deprivation of
personal liberty, but there must also be a procedure prescribed by law, or
in other words, law must prescribe a procedure. Vide observations of
Fazal Ali, J. at page 169, Pataujali Sastri, J. at page 205, Mahajan, J. at
pages 229 and 230 and S. R. Das, J. at page 319 of the Report in A. K.
Gopalan's case (supra). Article 21, thus, operates not merely as a
restriction on executive action against deprivation of personal liberty
without authority of law, but it also enacts a check on the legislature by
insisting that the law, which authorises deprivation, must establish a
procedure. What the procedure should be is not laid down in this Article,
but there must be some procedure and at the least, it must conform to
the minimal requirements of Article 22. Secondly, 'law' within the
meaning of Article 21 must be a valid law and not only must it be within
the legislative competence of the legislature enacting it, but it must also
not be repugnant to any of the fundamental rights enumerated in Part III,
Vide Shambhu Nath Sarkar v. The State of West Bengal
MANU/SC/0163/1973 : [1974]1SCR1 and Khudiram Das v. The State of
West Bengal and Ors. MANU/SC/0423/1974 : [1975]2SCR832

524. It was contended by Mr. Jethmalani on behalf of some of the detenus

that when a Presidential Order suspends enforcement of the right
conferred by Article 21, its effect is merely to suspend enforcement of the
aforesaid two ingredients and, therefore, the only claims which a detenu
is interdicted from enforcing, whilst the Presidential Order is in operation,
are : (1) that the law authorising deprivation does not prescribe a
procedure, and (2) that it does not impose reasonable restrictions on the
freedom guaranteed under Article 19. This contention is plainly erroneous
and does not need much argument to refute it. In the first place, the
requirement that the law which authorises deprivation of personal liberty
should not fall foul of Article 19, or for the matter of that, with any other
fundamental right set out in Part III, is not a requirement of Article 21,
but it is a requirement of Article 13. Secondly, the effect of suspension of
enforcement of Article 21 by the Presidential Order is that no one can
move any court for enforcement of the right conferred by Article 21,
whilst the Presidential Order is in operation. The right conferred by Article
21 is the right not to be deprived of personal liberty except according to
procedure prescribed by law. therefore, when the executive detains a
person without there being any law at all authorising detention or if there
is such law, otherwise than in accordance with its provisions, that would
clearly be in violation of the right conferred by Article 21 and such
violation would a fortiori be immune from challenge by reason of the
Presidential Order: It must follow inevitably from this that when a detenu
challenges an order of detention on the ground that it is mala fide or is
not in accordance with the provisions of the Act or is outside the authority
conferred by the Act, he would be seeking to enforce the right of personal
liberty conferred on him under Article 21 and that would be inhibited by
the Presidential Order.

525. That takes me to a consideration of the concept of the rule of law on

which so much reliance was placed on behalf of the detenus in order to
save their writ petitions from the lethal effect of the Presidential Order.
The contention on behalf of the detenus was that their writ petitions were
for enforcement of the right of the personal liberty based on the principle
of the rule of law that the executive cannot interfere with the liberty of a
person except by authority of law and that was not within the inhibition of
the Presidential Order. The question is : what is this principle of the rule
of law and does it exist under our Constitution as a distinct and separate
constitutional principle, independently and apart from Article 21, so as to
be capable of enforcement even when enforcement of Article 21 is
suspended by the Presidential Order.

526. The Great Charter of Liberties of England, commonly known as the

Magna Carta, was granted under the seal of King John in the meadow
called Runnymede on 15th June, 1215. This was followed within a couple
of years by a revised version of the Charter which was issued in the name
of Henry III in 1217 and ultimately with slight amendments, another
Charter was re-issued by Henry III in 1225 and that document has always
been accepted as containing the authorised text of Magna Carta.
Whenever reference is made to Magna Carta, it is to the Charter of 1225
which is also described as "9 Henry III (1225)". Magna Carta, according
to Sir Ivor Jennings symbolises "what we should now call the rule of law,
government according to law or constitutional government" which means
that all power should come from the law and that "no man, be he king or
minister or private person is above the law". It recognised that "the
liberties of England, which means the liberties of all free men--depended
on the observance of law by King, lord and commoner alike", and "without
law there is no liberty". Cap. XXTX contains the famous clause of the
Magra Carta which provided that: "No free man shall be taken, or
imprisoned, or dispossessed, of his free tenement, or liberties, or free
customs, or be outlawed, or exiled, or in any way destroyed; nor will we
condemn him. nor will we commit him to prison, excepting by the legal
judgment of his peers, or by the laws of the land." Thus, for the first time
the great principle was enunciated--though even before, it was always
part of the liberties of the subject--that no one shall be imprisoned or
deprived of his liberty except by the authority of the law of the land. The
power of the King to arrest a person or to deprive him of his liberty was
circumscribed by law. That is why Bracton said about the middle of the
13th Century "--the king himself ought not to under man but under God
and under the law, because the law makes the King. therefore, let the
King attribute to the law what the law attributes to the King, namely,
lordship and power, for there is no king where will governs and not law".
Magna Carta was confirmed again by the successive kings on the
insistence of Lords and commons and. the rule of law embodied in Magna
Carta governed the actions of the King vis-a-vis his subjects. But this
great principle of liberty was placed in jeopardy in the 17th Century when
a claim was made by the King that he had a prerogative right to arrest
and detain a subject and this prerogative right was necessary for the
defence of the Realm. When the King sought to raise moneys from the
subjects without the sanction of the Parliament, it was resisted by Darnel
and others and they were on that account committed to prison under the
orders of the King. On the application of these persons, who were so
imprisoned, a writ of habeas corpus was issued and the return made to it
on behalf of the King was that they were imprisoned per special mandate
Domini Regis (1627 St. Tr. I warnel's case). This return was considered
sufficient and the writ was discharged. The effect of this decision was that
King needed no authority of law in order to deprive a subject of his
personal liberty. But the Parliament was quick to nullify this decision by
enacting the Petition of Right, 1628 and it reaffirmed the right to personal
liberty in Section 3 of that Act and declared such a cause of imprisonment
to be unlawful. The principle that the Executive cannot interfere with the
liberty of a subject unless such interference is sanctioned by the authority
of law was thus restored in its full vigour.

527. Blackstone in his Commentaries on the Laws of England, vol. 1, 4th

ed. p. 105 stated the principle in these terms:

-- the law of England regards, asserts and preserves the personal

liberty of individuals. This personal liberty consists in the power
of locomotion, of changing situation, or removing one's person to
 whatsoever place one's own inclination may direct; for
imprisonment or restraint, unless by due course of law--It cannot
ever be abridged at the mere discretion of the magistrate,
without the explicit permission of the laws. Here again, the
language of the Great Charter is, that no free man shall be taken
or imprisoned, but by the lawful judgment of his equals, or by
the law of the land.

(emphasis supplied)
Since then, the validity of this principle has never been doubted and the
classical statement of it is to be found in the oft-quoted passage from the
judgment of Lord Atkin in Eshugbayi (Eleko) v. Officer Administering the
Government of Nigeria (supra) where the learned Law Lord said:

The Governor acting under the Ordinance acts solely under

executive powers, and in no sense a Court. As the executive he
can only act in pursuance of the powers given to him by law. In
accordance with British jurisprudence no member of the
executive can interfere with the liberty or property of a British
subject except on the condition that he can support the legality of
his action before a Court of Justice. And it is the tradition of
British justice that Judges should not shrink from deciding such
issues in the face of the executive.

Since in this country prior to the commencement of the Constitution, we

were administering British jurisprudence, this constitutional principle was
equally applicable here. That was the direct result of the binding authority
of the decision of the Privy Council in the aforementioned case. But quite
apart from that, the courts in India uniformly accepted this constitutional
principle as part of the law of the land. Vide Secretary of State for India v.
Hari Bhanji [1882] I. L. R. 5 Mad. 273 and Province of Bombay v.
Khushaldas Advani MANU/SC/0034/1950 : [1950]1SCR621 . Bose, J., in
P. K. Tare v. Emperor MANU/NA/0067/1942 quoted with approval the
aforesaid passage from the judgment of Lord Atkin and pointed out that
before the executive can claim power to override the rights of the subject
"it must show that the legislature has empowered it to do so". The
learned Judge also referred to the following passage from the dissenting
judgment of Lord Atkin in Liversidge v. Anderson [1942] 42 A. C. 206 "It
has always been one of the pillars of freedom, one of the principles of
liberty for which, on recent authority, we are now fighting(that the Judges
are no respecter of persons and stand between the subject and any
attempted encroachments on his liberty by the executive; alert to see
that any coercive action is justified in law." (emphasis supplied), and,
pointing out that Lord Macmillan and Lord Wright also agreed with this
principle, observed that these principles of liberty "to which Lord Atkin
refers, apply as much to India as elsewhere". So also in Vimlabai
Deshpande v. Emperor MANU/NA/0092/1944 : A. I. R. 1945 Nag. 8 the
same two passages, one from the judgment of Lord Atkin in Eshugbayi's
case (supra) and the other from the judgment in Liversidge's case (supra)
were referred to with approval by Bose and Sen, JJ.

528. It was also accepted by a Division Bench of the Calcutta High Court
consisting of Malik and Remfry, JJ. in Jitendranath Ghosh v. The Chief
Secretary to the Government of Bengal I. L. R. 60 Cal. 364that "-in
accordance with British jurisprudence, and with the jurisprudence of
British India, no member of the executive can interfere with the liberty or
property of a British subject, or of a foreigner in our land, except on the
condition that he can, and, if duly called upon, must support the legality
of his action before a court of justice". The Division Bench pointed out
that "the courts can, and in a proper case must, consider and determine
the question whether there has been a fraud on an Act or an abuse of
powers granted by the legislature, Eshugbayi Eleko's case".

529. Ameer Ali, A.C.J., and S. R. Das, J. also quoted with approval In re :
Banwarilal Roy (48 Cal. Weekly Notes 766 at 780) the aforesaid passage
from the judgment of Lord Atkin in Eshugbayi Eleko's case (supra) and
relied on the decision in Jitendranath Ghosh's case (supra) and
particularly the observations from the judgment in that case which I have
just reproduced. These observations clearly show that in our country,
even in pre Constitution days, the executive was a limited executive, that
is, an executive limited by law and it could act only in accordance with
law.

530. It would be seen from the above discussion that, even prior to the
Constitution, the principle of rule of law that the executive cannot act to
the prejudice of a person without the authority of law was recognised as
part of the law of the land and was uniformly administered by the courts.
It was clearly 'law in force' and ordinarily, by reason of Article 372, it
would have continued to subsist as a distinct and separate principle of law
even after the commencement of the Constitution. But when the
Constitution was enacted, some aspects of this principle of rule of law
were expressly recognised and given constitutional embodiment in
different Articles of the Constitution.. Thereafter they did not remain in
the realm of unwritten law. Article 21 enacted one aspect of the principle
of rule of law that executive cannot deprive a person of his life or personal
liberty without authority of law and added a requirement that the law
which authorises such deprivation must prescribe a procedure. Another
aspect of the principle of rule of law was enacted in Clause (1) of Article
31. namely, that no one shall be deprived of his property save by
authority of law. That is why it was pointed out by Shah, J. in R .C.
Cooper's case (supra) that "Clauses (1) and (2) of Article 31 subordinate
the exercise of the power of the State to the basic concept of the rule of
law". A third aspect was constitutionailsed in various sub-clauses of
Clause (1) of Article 19 inhibiting executive action unsupported by law,
which conflicted with the different freedoms guaranteed in these sub-
clauses. Then Article 265 recognised and enacted a yet fourth aspect,
namely, that no tax shall be levied and collected without authority of law.
Article 19, Clause (1), Article 21, Article 31, Clause (1) and Article 265
thus embody different aspects of the principle of rule of law. We are
concerned in these appeals only with Article 21 and, therefore, I shall
confine my discussion only to that Article.

531. Now, to my mind, it is clear that when this principle of rule of law
that the executive cannot deprive a person of his liberty except by
authority of law, is recognised and embodied as a fundamental sight and
enacted as such in Article 21, it is difficult to comprehend how it could
continue to have a distinct and separate existence, independently and
apart from this Article in which it has been given constitutional vesture. I
fail to see how it could continue in force under Article 372 when it is
expressly recognized and embodied as a fundamental right in Article 21
and finds a place in the express provisions of the Constitution. Once this
principle is recognised and incorporated in the Constitution and forms part
of it, it could not have any separate existence apart from the Constitution,
unless it were also enacted as a statutory principle by some positive law
of the State.
This position indeed become incontrovertible when we notice that, while
recognising and adopting this principle of rule of law as a fundamental
right, the Constitution has defined its scope and ambit and imposed
limitation on it in the shape of Article 359A, clauses (1) and (1A). When
the Constitution makers have clearly intended that this right should be
subject to the limitation imposed by Article 359, Clause (1) and (1A), it
would be contrary to all canons of construction to hold that the same right
continues to exist independently, but free from the limitation imposed by
Article 359, Clauses (1) and (1A). Such a construction would defeat the
object of the Constitution makers in imposing the limitation under Article
359, Clauses (1) and (1A) and make a mockery of that limitation. The
consequence of such a construction would be that, even though a
Presidential Order is issued under Clause (1) of Article 359 suspending
the right to move the court for enforcement of the right guaranteed under
Article 21, the detenu would be entitled to ignore the Presidential Order
and challenge the order of the detention on the ground that it is made
otherwise than in accordance with law, which is precisely the thing which
is sought to be interdicted by the Presidential Order. The Presidential
Order would in such a case become meaningless and ineffectual. Can an
interpretation be accepted which would reduce to futility Article 359,
Clause (1) in its application in relation to Article 21 ? Could the
Constitution makers have intended such a meaning ? The only
explanation which could be offered on behalf of the detenus was that the
object of Article 359, Clause (1) is merely to prevent a person from
moving the Supreme Court under Article 32 for enforcing the right of
personal liberty and it is not intended to effect the enforcement of the
right of personal liberty based on the rule of law by moving the High
Court under Article 226. But this explanation is-wholly unconvincing. It is
difficult to understand why the Constitution makers should have intended
to bar only the right to move the Supreme Court under Article 32 in so far
as the right of personal liberty is concerned. There would be no point in
preventing a citizen from moving the Supreme Court directly under Article
32 for securing his release from illegal detention, While at the same time
leaving it open to him to move the High Court for the same relief and
then to come to the Supreme Court In appeal, if necessary. That would be
wholly irrational and meaningless. therefore, the only way in which
meaning and effect can be given to the Presidential Order suspending the
enforcement of the right of personal liberty guaranteed under Article 21 is
by holding that the principle of rule of law, that the executive cannot
interfere" with the personal liberty of any person except by authority of
law, is enacted in Article 21 and it does not exist as a distinct and
separate principle conferring a right of personal liberty, independently and
apart from that Article. Consequently, when the enforcement of the right
of personal liberty conferred by Article 21 is suspended by a Presidential
Order, the detenu cannot circumvent the Presidential Order and challenge
the legality of his detention by falling back on the supposed right of
personal liberty based on the principle of rule of law.

532. It was also said on behalf of the detenus that under our
constitutional set up, the executive is bound to act in accordance with law
and this obligation of the executive arises from the very basis of the
doctrine of distribution of powers amongst different bodies created by the
Constitution as also from the terms of Articles 73, 154 and 256 of the
Constitution. This obligation, contended the detenus, could be enforced
against the executive under Article 226 by issue of a writ "for any other
purpose". Now, it is true that under our Constitution, the executive is a
limited executive and it is bound to act in accordance with law and cannot
disobey it. If the Maintenance of Internal Security Act, 1971 says that the
executive shall be entitled to detain a person only on the fulfilment of
certain conditions and according to a specified procedure, it cannot make
an order of detention if the prescribed conditions are not fulfilled or the
specified procedure is not followed. The executive is plainly and
indubitably subordinated to the law and it cannot flout the mandate of the
law but must act in accordance with it. The Judicial Committee of the
Privy Council pointed out this constitutional position in Eastern Trust
Company v. Mckenzie Mann & Co. Ltd. [1915] A. c. 750 in an appeal from
the Supreme Court of Canada : "The non-existence of any right to bring
the Crown into Court--does not give the Crown immunity from all law, or
authorize the interference by the Crown with private rights at its own
mere will--It is the duty of the Crown and of every branch of the
Executive to abide by and obey the law. (emphasis supplied)". This rule
must naturally apply with equal force in our constitutional set up and that
was recognised by this Court in Rai Sahib Rain Jawaya Kapur v. The State
of Punjab MANU/SC/0011/1955 : [1955]2SCR225 where Mukherjea, J.,
speaking on behalf of the Court said : "In India, as in England, the
executive has to act subject to the control of the legislature" and
proceeded to add : "--the executive Government are bound to conform
not only to the law of the land but also to the provisions of the
Constitution--" In Bharat Singh's case (supra) also, this Court pointed out
: "Our federal structure is founded on certain fundamental principles : (1)
the sovereignty of the people with limited Government authority i.e. the
Government must be conducted in accordance with the will of the
majority of the people. The people govern themselves through their
representatives, whereas the official agencies of the executive
Government possess only such powers as have been conferred upon them
by the people; (2) There is distribution of powers between the three
organs of the State--Legislative, executive and judicial--each organ
having some check direct or indirect on the other; and (3) the rule of law
which includes judicial review of arbitrary executive action". The
obligation of the executive to act according to law and not to flout or
disobey it is, therefore, unexceptionable and cannot be disputed. But this
obligation, in so far as personal liberty is concerned., is expressly
recognised and enacted as a constitutional provision inter alia in Article 21
and when the Constitution itself has provided that the enforcement of this
obligation may be suspended by a Presidential Order, it is difficult to see
how the intention of the Constitution makers can be allowed to be
defeated by holding that this obligation exists independently of Article 21
and it can be enforced despite the limitation imposed by the constitutional
provision The same reasoning which I have elaborated in the preceding
paragraph would equally apply to repel the present argument.

533. Before I go to the decided cases, I must refer to one argument

which strongly supports the view I am taking. It is almost conclusive. It is
an argument for which I must express my indebtedness to Prof. P. K.
Tripathi. In an Article written on 'Judicial and Legislative Control over the
Executive during Martial Law' and published in the Journal Section of All
India Reporter at page 82, Prof. P. K. Tripathi has suggested that
considerations of Martial Law may support the conclusion that a
Presidential Order mentioning Article 21 takes away, wholly and
completely, the right of an individual to obtain a writ of habeas corpus
challenging the legality of his detention. I must of course hasten to make
it clear that there is no Martial law anywhere in the territory of India at
present and I am referring to it only in order to buttress the conclusion
otherwise reached by me. The concept of Martial law is well known in the
British and Americas jurisprudence. When a grave emergency arises in
which the executive finds itself unable to restore order by employing the
ordinary civilian machinery and it becomes necessary for it to use force, it
may declare what is commonly termed 'martial law'. Martial law means
that the executive calls the military to its aid and the military, acting
under the general authority of the executive, proceeds to quell violence
by violence. When martial law is in force, it is well settled that the courts
cannot issue a writ of habeas corpus or otherwise interfere with the
military authorities or the executive to protect the life or liberty of an
individual, even if illegal or mala fide action is taken or threatened to be
taken by the military authorities or the executive. To give only one
example : In Ireland in John Allan's case [1921] 2 Irish. Reports 241, the
martial law authorities ordered all persons to deposit their fire arms
within twenty-four hours with the army authorities on pain of death. John
Allen, who failed to obey, was arrested and sentenced by the military
tribunal, which was, in law, a mere body of army men advising the officer
commanding, to death, and the martial law authorities announced the day
and date when he was to be executed. The court was moved on behalf of
John Allen on the ground that the order of the military tribunal was
invalid, but the court refused to interfere on the theory that when martial
law is properly declared, the court will not issue habeas corpus during the
period when martial law is in force. It is the basic characteristic and
essence of martial law that during the time that it is in force, the
individual cannot enforce his right to life and liberty by resorting to
judicial process and the courts cannot issue the writ of habeas corpus or
pass any similar orders.

534. Now, under our Constitution there does not appear to be any
express provision conferring power on the executive to declare martial
law. But it is implicit in the text of Article 34 of the Constitution that the
Government may declare martial law in any area within the territory of
India. What are the legal implications and consequences of declaration of
martial law is not provided any where in the Constitution. It is, therefore,
obvious that merely declaring martial law would not, by itself, deprive the
courts of the power to issue the writ of habeas corpus or other process for
the protection of the right of the individual to life and liberty. In our
country, unlike England, the right to life and liberty is secured as a
fundamental right and the right to move the Supreme Court for
enforcement of this right is also guaranteed as a fundamental right. Also
the power to issue a writ or order in the nature of habeas corpus has
been expressly conferred on the High Courts by a constitutional provision,
namely, Article 226. therefore, the declaration of martial law, which is not
even expressly provided in the Constitution, cannot override the
provisions of the Article conferring the right to life and liberty as also of
Articles 32 and 226 and, unless the right of an individual to move the
courts for enforcement of the right to life and liberty can be suspended or
taken away by or under an express provisions of the Constitution, the
individual would be entitled to enforce the right to life and liberty under
Article 32 or Article 226 or by resorting to the ordinary process of law,
even during martial law. That would be contradictory of the basic and
essential feature of martial law and make it impossible to impose effective
martial law anywhere at any time in the territory of India. Such a
consequence could never have been imagined by the Constitution makers.
They could never have intended that the Government should have the
power to declare martial law and yet it should be devoid of the legal effect
which must inevitably follow when martial law is in force. Moreover,
Article 34 itself presupposes that acts contrary to law may be committed
by the military authorities or the executive during the time when martial
law is in force and that is why it provides that after the martial law ceases
to be in force, Parliament may by law indemnify "any person in the
service of the Union or of a State or any other person in respect of any
act done by him in connection with the maintenance or restoration of
order in any area--where martial law was in force or validate any
sentence passed, punishment inflicted, forfeiture ordered or other act
done under martial law in such area". This provision clearly postulates
that during the time that martial law is in force, no judicial process can
issue to examine the legality of any act done by the military authorities or
the executive in connection with the maintenance or restoration of order.
But, how is this result to be achieved under the Constitution ?

535. The only provision in the Constitution which authorises temporary

suspension or taking away of the right of an individual to move any court
for enforcement of his right to life and liberty is Article 359, Clause (1). If
the Presidential Order under Clause (1) of Article 359 suspending
enforcement of the fundamental right under Article 21 were construed not
to have the effect of barring an individual from moving the court for
impugning the legality of the act of the executive interfering with his life
or liberty, on the assumption that in doing so, he is merely enforcing his
right to life or personal liberty based on the rule of law, the result would
be that even when and where martial law is in force, courts will continue
to have the power to examine the legality of the act of the executive,
because, as explained earlier, the mere declaration of martial law does
not, under our Constitution, have the effect of taking away that power.
That would be plainly an insufferable situation which would carry the
power of courts even beyond that claimed by the United States courts in
the case of the ex parte Milligan (1866) 4 Wallace 2 which case went to
the farthest limit and which has for that reason been criticised by great
authorities like E. S. Corwin and has not been consistently followed even
by the United States Supreme Court Vide Moyer v. Peabody (1909) 212 U.
S. 76 and Duncan v. Kohan-meku (1945) 327 U. S. 304. There can be no
two opinions that during martial law the courts cannot and should not
have power to examine the legality on the action of the military
authorities or the executive on any ground whatsoever, including the
ground of mala fide. But, if the courts are to be prevented from exercising
such power during martial law, that situation can be brought about only
by a Presidential Order issued under Article 359, Clause (1) and in no
other way and the Presidential Order in so far as it suspends the
enforcement of the right of personal liberty conferred under Article 21
must be construed to bar challenge to the legality of detention in any
court, including the Supreme Court and the High Courts, whilst the
Presidential Order is in operation.

536. I may also in this connection refer to the decision of the House of
Lords in Attorney General v. De Keyser's Royal Hotel [1920] A. C. 508.
There, in May 1916, the Crown, purporting to act under the Defence of
Realm Consolidation Act, 1914 and the Regulations made thereunder took
possession of a hotel for the purpose of housing the Headquarters'
personnel of the Royal Flying Corps and denied the legal right of the
owners to compensation. The owners yielded up possession under protest
and without prejudice to their right and by a Petition of Right, they asked
for a declaration that they were entitled to compensation under the
Defence Act, 1842. The Crown was plainly liable to pay compensation
under the Statute, but it sought to justify its action in taking possession
of the hotel without payment of compensation, under the sanction of the
Royal Prerogative. The question which, therefore, arose for consideration
before the House of Lords was whether the Royal Prerogative was
available to the Crown for taking possession of the hotel without
compensation, when the statute authorised taking of such possession but
on condition on payment of compensation. The House of Lords
unanimously held that, in view of the statutory provision on the subject,
the Royal Prerogative to take property without payment of compensation
did not subsist and the principle laid down was that where by Statute, the
Crown is empowered to do what it might heretofore have done by virtue
of its prerogative, it can no longer act under the prerogative and must act
under and subject to the conditions imposed by the statute. Lord Dunedin
in the course of his speech observed:

None the less, it is equally certain that if the whole ground of

something which could be done by the prerogative is covered by
the statute, it is the statute that rules.
Lord Atkinson quoted with approval the following pregnant passage from
the judgment of the Master of the Rolls in the same case:

Those powers which the executive exercises without

Parliamentary authority are comprised under the comprehensive
term of the prerogative. Where, however, Parliament has
intervened and has provided by statute for powers, previously
within the prerogative, being exercised in a particular manner
and subject to the limitations and provisions contained in the
statute, they can only be so exercised. Otherwise, what use
would there be in imposing limitations, if the Crown could at its
pleasure disregard them and fall back on prerogative ?

and pointed out that the question posed by the Master of the Rolls was
unanswerable. The learned Law Lord then proceeded to add:

It is quite obvious that it would be useless and meaningless for

the Legislature to impose restrictions and limitations upon, and to
attach conditions to, the exercise by the Crown of the powers
conferred by a statute, if the Crown were free at its pleasure to
disregard these provisions, and by virtue of its prerogative do the
very thing the statutes empowered it to do.

The other learned Law Lords who participated in the decision also made
observations to the same effect in the course of their speeches.

537. Now it is obvious that the contention of the detenus in the present
case is very similar to that advanced on behalf of the Crown in De
Keyser's Royal Hotel's case (supra). It almost seems to be an echo of that
contention and it must inevitably be answered the same way. When the
right of personal liberty based on the rule of law which existed
immediately prior to the commencement of the Constitution has been
enacted in the Constitution as a fundamental right in Article 21 with the
limitation that, when there is a Proclamation of emergency, the President
may, by Order under Article 359, Clause (1) suspend its enforcement, it is
impossible to imagine how that right of personal liberty based on the rule
of law can continue to exist as a distinct and independent right free from
the limitation as to enforcement contained in Article 359, Clause (1). It
would be meaningless and futile for the Constitution makers to have
imposed this limitation in regard to enforcement of the right of personal
liberty guaranteed by Article 21, if the detenu could, with impunity,
disregard such limitation and fall back on the right of personal liberty
based on the rule of law.
538. There is a decision of this Court in Dhimbha Devisingh Gohil v. The
State of Bombay MANU/SC/0032/1954 : [1955]1SCR691 which clearly
supports this view. The question which arose for determination in this
case was whether the Bombay Taluqdari Tenure Abolition Act, 1949 was a
valid piece of legislation. When this Act was enacted by the Bombay
Legislature, the Government of India Act, 1935 was in force and the
validity of this Act was challenged on the ground that it was in violation of
Section 299, Sub-section (2) of the Government of India Act, 1934. Since
this Act was included in the Ninth Schedule to the Constitution by the
Constitution of India (First Amendment) Act, 1951, the State contended
that by reason of Article 31-B, this Act was immune from attack of the
kind put forward on behalf of the petitioner. Article 31-B provides inter
alia that none of the Acts specified in the Ninth Schedule nor any of the
provisions thereof shall be deemed to be void or ever to have become
void on the ground that such act or provision is inconsistent with or takes
away or abridges any of the right conferred by any provisions of Part III.
The petitioner disputed the applicability of Article 31-B on the ground that
the protection under that Article was confined only to "9 challenge based
on the provisions of Part III of the Constitution and did not extend to a
challenge based on violation of Section 299, Sub-section (2) of the
Government of India Act, 1935. The petitioner relied on the words "-- is
inconsistent with or takes away or abridges any rights conferred by any
provisions" of Part III and contended that inconsistency with or taking
away or abridgement of the right conferred by s. 299, Sub-section (2) of
the Government of India Act, 1935 was not within the protection of Art
31-B. This contention of the petitioner was negatived and it was held by
this Court speaking through Jagannatha Das, J.:

When Article 31-B protects is not a mere "contravention of the

provisions" of Part III of the Constitution but an attack on the
grounds that the impugned Act is "inconsistent with or takes
away or abridges any of the rights conferred by any provisions of
this Part." One of the rights secured to a person by Part III of the
Constitution is a right that his property shall be acquired only for
public purposes and under a law authorising such acquisition and
providing for compensation which is either fixed by the law itself
or regulated by principles specified by the law. That is also the
very right which was previously secured to the person under
Section 299 of the Government of India Act. The challenge now
made to the validity of the impugned Act is based on the alleged
violation of that right."--" But it is urged, that even so, Article 31-
B protects only the violation of the fundamental right in so far as
"it was conferred by Part III of the Constitution" and that this
right cannot be said to have been "conferred" by the
Constitution. We cannot agree with this contention. This is clearly
 a case where the concerned right which was secured under
Section 299 of the Government of India Act in the form of a
fetter on the competency of the Legislature and which in
substance was a fundamental right, was lifted into the formal
category of a fundamental right along with other fundamental
rights recognised in the present Constitution. There is therefore
nothing inappropriate in referring to this right which was
preexisting, along with the other fundamental rights for the first
time secured by this Constitution, when grouping them together,
as fundamental rights "conferred" by the Constitution.

This Court held that when Article 31-B protected the Act against attack on
the ground that the Act is "inconsistent with or takes away or abridges
any of the rights conferred by any provisions of "Part III, the protection
extended to giving immunity against violation of the right secured by
Section 299, Sub-section (2) of the Government of India, 1935 because
that was the very right lifted into the category of fundamental right and
enacted as Article 31, Clause (2) of the Constitution and it could
accordingly with appropriateness, be referred to as the right conferred by
Article 31, Clause (2). On the parity of reasoning, it may be said that the
right based on the principle of rule of law that no one shall be deprived of
his life or personal liberty except by authority of law, which was a pre-
existing right, was lifted into the category of fundamental right and
enacted as Article 21 and hence it became a fundamental right conferred
by Article 21 and ceased to have any distinct and separate existence.

539. The maxim 'expressum facit cessare taciturn' that is what is

expressed makes what is silent cease, would also clearly be applicable in
the present case. This maxim is indeed a principle of logic and common
sense and not merely a technical rule of construction. It was applied in
the construction of a constitutional provision in Shankara Rao Badami v.
State of Mysore MANU/SC/0022/1968 : [1969]3SCR1 . The argument
which was advanced in that case was that the existence of public purpose
and the obligation to pay compensation were necessary concomitants of
compulsory acquisition of private property and so the term 'acquisition' in
Entry 36 of List II of the Seventh Schedule to the Constitution must be
construed as importing by necessary implication the two conditions of
public purpose and payment of adequate compensation, and
consequently, the Mysore (Personal and Miscellaneous) Inams Abolition
Act, 1955, which provided for acquisition of the rights of the inamdars in
inam estates in Mysore State without payment of just and adequate
compensation was beyond the legislative competence of the State
Legislature. This argument was rejected on the ground that the
limitations of public purpose and payment of compensation being
expressly provided for as conations of acquisition in Article 31(2), there
was no room for implying either of these limitations in the interpretation
of the term 'acquisition' in Entry 36 of List II. Ramaswamy, J., speaking
on behalf of the Court observed:

It is true that under the Common law of eminent domain as

recognised in Anglo-Saxon jurisprudence the State cannot take
the property of its subject unless such property is required for a
public purpose and without compensating the owner for its loss.
But when these limitations are expressly provided for in Article
32(2) and it is further enacted that no law shall be made which
takes away or abridges these safeguards, and any such law, if
made, shall be void, there can be no room for implication, and
the words 'acquisition of property' in entry 36 must be
understood in their natural sense of the act of acquiring property,
without importing into the phrase an obligation to pay
compensation or a condition as to the existence of a public
purpose. In other words, it is not correct to treat the obligation to
pay compensation as implicit in the legislative entry 33 of List I
or legislative entry 36 of List II for it is separately and expressly
provided for in Article 31(2). The well known maxim expresum
facit cessare taciturn is indeed a principle of logic and
commonsense and not merely a technical rule of construction.
The express provision in Article 31(2) that a law of acquisition .in
order to be valid must provide for compensation will, therefore,
necessarily exclude all suggestion of an implied obligation to
provide for compensation sought to be imported into the meaning
of the word "acquisition" in entry 36 of List II. In the face of the
express provision of Article 31(2), there remains no room for
reading any such implication in the legislative heads.

Similarly, in the present case, on an application of the maxim expressum

facit cessare taciturn, the express provision in Article 21 that no person
shall be deprived of his life or personal liberty except according to
procedure prescribed by law will necessarily exclude a provision to the
same effect to be gathered or implied from the other provisions of the
Constitution.

540. I find myself fortified in this conclusion by the view taken on a

similar question under the Irish Constitution which also contains a catena
of Articles conferring fundamental rights Kelly in his book one.
'Fundamental Rights in the Irish Law and Constitution' points out "that the
various fundamental fights which were previously notionally present in
the common law have been subsumed in and replaced by the written
guarantees" and, therefore., these rights cannot be found elsewhere than
in the Constitution. The decision of the High Court of Justice in Ireland in
'State (Walsh and Ors.) v. Lennon and Ors. 1942 Irish Reports 112 has
also adopted the same view. The petitioners in this case, who were
detained in Arbour Hill Military Detention Barracks awaiting trial on a
charge of murder before a Military Court established under emergency
Powers (No. 41) Order, 1940, made an application to the High Court for
an order of habeas corpus directed to the Governor of the Detention
Barracks in which they were held and for an order of prohibition directed
to the President and members of the Military Court before whom it was
ordered by emergency Powers (No. 41F) Order, 1941 that they should be
tried. The application inter alia challenged the validity of the emergency
Powers (No. 41 F) Order, 1941 on the ground that it was ultra vires the
Government, as it directed that the Military Court, which was to try the
petitioners, should try them together and so precluded the Court from
exercising its discretion and control over its own procedure and was thus
violativc of the right of a citizen to insist that he shall not be tried on a
criminal charge save in due course of law and was, also in conflict with
the right of a citizen to personal liberty. The right of personal liberty was
guaranteed by Article 40, Section 4, Sub-section (1) of the Constitution,
while the right of a citizen charged with a criminal offence to insist that he
shall not be tried save in due course of law was to be found in Article 38,
Section 1. The respondents relied on Article 28, Section 3, Sub-section
(;3) of the Constitution which provided : "Nothing in this Constitution
shall be invoked to invalidate any law enacted by the Oireachtas which is
expressed to be for the purpose of securing the public safety and the
preservation of the State in time of war or armed rebellion or to nullify
any act done or purported to be done in pursuance on any such law." and
contended that by reason of this provision, the emergency Powers (No. 41
F) Order, 1941 was protected from challenge on the ground of
contravention of Article 38, Section 1 and Article 40, Section 4, Sub-
section (1) of the Constitution. This contention clearly had the effect of
putting the petitioners out of court and., therefore, they sought to get
round this difficulty by arguing that the constitutional rights, which they
claimed to have been infringed were derived not from the written
constitution, but from the Common Law, and consequently. Article 28,
Section 3, Sub-section (3) of the Constitution did not stand in their way.
This argument, which was very similar to the present argument advanced
before us, was unhesitatingly rejected by all the three judges who took
part in the decision. Maguire J. said:--

The contention is that the constitutional principles which assure

to a citizen his personal liberty., his right to resort to this Court
for an order of habeas corpus, his right that he shall not be tried
on a criminal charge save in due course of law, have as their
source the Common Law, and exist side by side with these rights
in the written Constitution. In support of this contention reliance
 is placed on the decision of the Supreme Court in Burke's Case
(1940) I.R. 136, particularly on the passage in the judgment of
Murnaghan J. at p. 171, where he says 'certain constitutional
principles are stated in the Constitution but many other
important constitutional principles have been accepted as existing
in the law then in force.

I do not find in the judgment of Murnaghan J. or elsewhere in the

judgments in that case any basis for the contention that these rights are
to be found in a body of principles which exist side by side with the
written Constitution, having their source in the Common Law, and of
equal validity with the principles stated in the Constitution, and which on
the argument here, would have the added virtue that they are
uncontrolled by Article 28, s. 3, Sub-section 3. The constitutional rights
relied upon in this case find clear expression in Article 40 and 38 of the
Constitution. In my view they cannot be found elsewhere than in the
Constitution.

The advantages of a written Constitution are manifest. Such a

Constitution can, and our Constitution does, give rights such as these
definite and clear expression. Our Constitution can, and does, protect
them against being whittled away save with great difficulty. The framers
of the Constitution have provided that, after the passage of a limited
time, many, though not all .,of the rights which it gives are put beyond
the reach of interference by ordinary . law. The framers have, however,
deliberately inserted Article 28, s. 3, Sub-section 3, which is clearly
designed to prevent the Courts from invoking anything in the Constitution
to invalidate enactments passed, or to nullify acts done, or which purport
to be done,, in pursuance of Acts passed for securing the public safety or
the preservation of the State in time of war."

Gavan Duffy, J. also observed to the same effect:

The applicants seek, in the alternative, to base their claims to

habeas corpus and prohibition upon antecedent rights of personal
liberty and regular trial at Common Law: but, whether or not the
imminent Common Law of Ireland needed generally any Article
50 (containing the laws in force) to retain its vigour, the
particular Common Law principles here invoked must both, in my
opinion, of necessity have merged in the express provisions
declaring how the two corresponding rights are to be in force
under the new polity established by An Bunreacht.

And so did Martin Maguire, J. when he said:

 It is argued, in the alternative, that, apart from the Constitution
and existing side by side with it, there is a body of constitutional
law, founded on Common Law, and comprising the same
constitutional rights which the prosecutors seek to assert, and in
respect of which they demand the relief claimed in these
proceedings. This argument involves the propositions that the
State has two Constitutions, the one enacted by the people,
written and defined; the other unwritten and undefined, and that
the latter may be invoked, or called in aid, to the extent even of
defeating the clear terms of the Constitution where a conflict real
or apparent is alleged between them. There is no authority for
these propositions. I am unable to accept this argument.

On this view, all the three judges of the High Court held that the
emergency Powers (No 41-F) Order,, 1941 was immune from challenge by
reason of Article 28, Section 3, Sub-section (3) of the Constitution. This
decision was taken in appeal and affirmed by the Supreme Court, but this
point about the continuance of the common law rights side by side in the
constitution, was not examined since it was obvious that the emergency
Powers (No. 41 F) Order, 1941 should not be set at naught on the ground
of repugnancy to any supposed Common Law rights. It will be seen that
there is a close analogy between this decision of the High Court and the
present case and the observations of the three judges quoted above are
directly applicable here.

541. The detenus, however, strongly relied on the decisions of this Court
in Bharat Singh's case (supra), Ibralum & Co.'s case (supra) Berrnet
Coleman & Co.'s case (supra) and Shree Meenakshi Mills' case (supra) in
support of their contention that the principle of rule of law that the
executive cannot' act to the prejudice of a person except by authority of
law continues to exist as a distinct and independent principle unaffected
inter alia by the enactment of Article 21. I have already referred to these
decisions earlier and it will be evident from what I have said, that these
decisions do not lay down any such proposition as is contended for on
behalf of the detenus. What these decisions say is only this, namely, that
Article 358 protects against challenge under Article 19 only such
executive action as is "taken under lawful authority and if any executive
action is taken without authority of law or. in pursuance of a law which is
void, it will not be protected from challenge under Article 19 by Article
358 and it will be void to the extent to which it conflicts with Article 19.
These decisions, properly read, do not support the thesis put forward on
behalf of the detenus.

542. The detenus then relied on the decision of this Court in Bidi Supply
Co. v. Union of India MANU/SC/0040/1956 : [1956]29ITR717(SC) .
There, an omnibus order was made under Section 5, Sub-section (7A) of
the Income Tax Act transferring cases of the petitioner form one place to
another. The petitioner challenged this order as being outside the power
conferred under Section 5, Sub-section (7A) and hence violative of the
fundamental rights guaranteed to him by Articles 14, 19(1) (f) and (b)
and 31 of the Constitution. this Court held that the omnibus order made
in this case was not contemplated or sanctioned by Sub-section (7A) of
Section 5 and, therefore, the petitioner was still entitled to the benefit of
the provisions of Sub-sections (1) and (2) of Section 64 and since the
Income Tax authorities had by an executive order., unsupported by law,
picked out the petitioner for discriminatory-treatment, there was violation
of the equality clause of the Constitution and hence the petitioner was
entitled to relief under Article 32 of the Constitution setting aside the
impugned order. S.R. Das-, C.J., speaking on behalf of the Court,
observed:

As said by Lord Aktin in Eshugbayi Eleko's case the executive can

only act in pursuance of the powers given to it by law and it
cannot interfere with the liberty, property and rights of the
subject except on the condition that it can support the legality of
its action before the Court. Here there was no such order of
transfer as is contemplated or functioned by Sub-section (7A) of
Section 5 and, therefore, the present assessee still has the right,
along with all other Bidi merchants carrying on business in
Calcutta, to have his assessment proceedings before the Income
Tax Officer OL the area in which his place of business is situate.
The Income Tax authorities have by an executive order,
unsupported by law, picked out this petitioner and transferred all
his cases by an omnibus order unlimited in point of time.
(Emphasis supplied).
and since the action of the Income Tax authorities was contrary to Sub-
sections (1) and (2) of Section 64, the impugned order was held to be
bad. Hence it will be noticed that the impugned order operated to the
prejudice of the petitioner by affecting his rights under Section (1) and
(2) of Section 64 but it did not affect any of his rights under Article 19 or
Article 21 or Clause (1) of Article 31 and therefore, the principle of rule of
law that the executive cannot act to the prejudice of a person without
authority of law could be legitimately invoked. It continued to be in law in
force to the extent to which if was not recognised and enacted in any
provision of the Constitution.

543. The next decision to which I must refer in this connection is Bishan
Das and Ors. v. The State of Punjab MANU/SC/0348/1961 :
[1962]2SCR69 . This was a petition under Article 32 of the Constitution
and the action of the officers of the State Government impugned in this
case was forcible dispossession of the petitioners of properties which were
in their management and possession. The challenge to the impugned
action of the officers of the State Government was based on violation of
the fundamental right guaranteed under Clause (1) of Article 31. this
Court upheld the challenge and struck down the impugned action as being
without the authority of law and while doing so, made the following
observations which were strongly relied on behalf of the detenus : "Before
we part with this case, we feel it our duty to say that the executive action
taken in this case by the State and its officers is destructive of basic
principle of the rule of law--the action of the Government in taking the)
law into their hands and dispossessing the petitioners by the display of
force, exhibits a callous disregard of the normal requirements of the rule
of law--We have here a highly discriminatory and autocratic act which
deprives a person of the possession of property without reference to any
law or legal authority", (emphasis supplied). These observations made in
the context of a petition for enforcement of the fundamental right under
Article 31, Clause (1) clearly show that this Court regarded the principle
of rule of law that no person shall be deprived of his property "without
reference to any law or legal authority" as embodied in Article 31, Clause
(1) and did not rely upon this principle of rule of law as a distinct and
independent principle apart from Article 31, Clause (1) : otherwise the
petition under Article 32 would not have been maintainable and this Court
could not have granted relief.

544. The last decision to which I must refer is the decision of this Court in
State of Bihar v. Kameshwar Prasad Verma MANU/SC/0116/1962 :
1965CriLJ494 . That was a case arising out of a petition for a writ of
habeas corpus filed under Article 226 for release of one Bipat Gope from
illegal detention. this Court held that the State Government had failed to
show under what lawful authority Bipat had been re-arrested and in the
absence of such lawful authority, the detention was illegal. Kapur, J.,
speaking on behalf of the Court referred with approval to the observations
of Lord Atkin in Eshugbayi Eleko's case (supra) and pointed out : "It is the
same jurisprudence which has been adopted in this country on the basis
of which the courts of this country exercise jurisdiction". These
observations were relied upon on behalf of the detenus to contend that
the principle of rule of law in Eshugbayi Elekos case (supra) was held by
this Court to have been adopted in this country and it must, therefore, be
enforced independently of Article 21. But I do not think that is the effect
of these observations. What Kapur, J., said was only this, namely that the
principle of rule of law in Eshugbayi Eleko's case (supra) had been
adopted in this country. He did not make it clear how it had been adopted
nor did he say that it had been adopted as a distinct and independent
principle apart from the fundamental rights. There can be no doubt that
the principle in Eshogbayi Eleko's case (supra) had been adopted in this
country in Article 21 to the extent to which it protects personal liberty. It
will, thererefore., be seen that there is no decision of this Court which
says that there is a right of personal liberty based on the rule of law
distinct and independent from that guaranteed by Article 21.

545. I must now turn to the decision of this Court in Makhan Singh v.
State of Punjab (supra) on which very strong reliance was placed on
behalf of the detenus. That was a decision given in a batch of twenty-six
appeals from the decisions of the High Courts of Bombay and Punjab. The
appellants in these six appeals were detained respectively by the Punjab
and the Maharashtra State Governments under Rule 30(1") (b) of the
Defence of India Rules made by the Central Government in exercise of the
powers conferred on it by Section 3 of the Defence of India Ordinance,
1962. They applied to the Punjab and the Bombay High Courts
respectively under Section 491(1) (b) of the CrPC and alleged that they
had been improperly and illegally detained. Their contention was that
Section 3(2)(15)(i) and Section 40 of the Defence of India Act, 1962
which replaced the Defence of India Ordinance and Rule 30(1) (b) under
which they were detained were constitutionally invalid because they
contravened their fundamental rights under Articles 14, 21 and 22 C4) (5)
and (7) of the Constitution and so they claimed that an order should be
passed in their favour directing the respective State Governments to set
them at liberty. There was in operation at that time a Proclamation of
emergency dated 26th October, 1962 issued by the President under
Article 352, Clause (1) on account of the Chinese aggression. The
President had also issued an order dated 3rd November, 1962 under
Article 359, Clause (1) suspending the right of any person to move any
court for the enforcement of the rights conferred by Articles 21 and 22 "if
such person has been deprived of any such rights under the Defence of
India Ordiance, 1962 (4 of 1962) or any rule or order made thereunder."
The contention of the State Governments based on this Presidential Order
was--and that contention found favour with both High Courts--that the
Presidential Order created a bar which precluded the appellants from
maintaining the petitions under Section 491 (1) (b) of the CrPC. On this
contention. two questions arose for determination before this Court. The
first was as to what was the true scope and effect of the Presidential
Order and the second was whether the bar created by the Presidential
Order operated in respect of applications made by the appellants under
Section 491(l)(b) of the CrPC. this Court in a majority judgment delivered
by Gajendragadkar, J., analysed the provisions of Article 359, Clause (1)
and held that the words "any court" in that Article must be given their
plain grammatical meaning and must be construed to mean any court of
competent jurisdiction which would include the Supreme Court and the
High Courts before which the specified rights can be enforced by the
citizens". The majority judgment then proceeded to add ; "The sweep of
Article 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 said specified
fundamental rights. " Having thus disposed of the first question, the
majority judgment went on to consider the second question and after
analysing the nature of the proceedings under Section 491(1) (b) of the
CrPC, held that the prohibition contained in Article 359, Clause (1) and
the Presidential Order would apply "as much "to proceedings under
Section 491(1)(b) as to those under Article 226(1) and Article 32(1)". It
was obvious that on this view, the petitions under Section 491(1)(b) were
not maintainable,, since the only ground on which they challenged the
orders of detention was that the provisions of Section 3(2)(15)(i) as well
as Rule 30(1)(b) were invalid as offending against Articles 14, 21 and 22
and in the circumstances it was not necessary for this Court to express
any opinion on the question as to what were the pleas available to a
citizen under the Presidential Order in challenging the legality or propriety
of his detention. Still, however, the majority judgment proceeded to give
its opinion on this question? in the following terms:

It still remains to consider what are the pleas which are now
open to the citizens to take 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
enough : the detenu will have to prove the malafides. But if the
mala-fides 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).--We ought to
add that these categories of pleas have been mentioned by us by
way of illustration., and so, they should not be read as
exhausting all the pleas which do not fall within the purview of
the Presidential Order.

The strongest reliance was placed on behalf of the detenus on these

observations in the majority judgment. It was contended on behalf of the
detenus that the observations clearly showed that if an order of detention
is challenged on the ground that it is in violation of the mandatory
provisions of the Act or is made malafide, such a plea would be outside
Article 359, Clause (1) and would not be barred by a Presidential Order
specifying Article 21. The detenus, in support of this contention leaned
heavily on the words 'such a plea is outside Article 359(1) and the right of
the detenu to move for his release on such a ground cannot be affected
by the Presidential Order", and "that is another kind of plea which is
outside the purview of Article 359(1) occurring in these observations and
urged that such a plea was held to be permissible because it was outside
the purview of Article 359, Clause (1) and not because it was outside the
terms of the particular Presidential Order.

546. Now, at first blush, these observations do seem to support the

contention of the detenus. But there are two very good reasons why I do
not think these observations can be of much help in the determination of
the question before us. In the first place, the question as to what were
the other pleas available to a detenu in challenging the legality or
propriety of his detention, despite the President Order dated 3rd
November, 1962, was not in issue before the Court and did not fall, to be
decided and the aforesaid observations made by the Court on this
question were, therefore, clearly obiter. These observations would
undoubtedly be entitled to great weight, but, as pointed out by this Court
in H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur and Ors. v.
Union of India MANU/SC/0050/1970 : [1971]3SCR9 "an obiter cannot
take the place of the ratio. Judges are not oracles". These observations do
not, therefore, have any binding effect and they cannot be regarded as
conclusive on the point. Moreover, it must be remembered that
when we are considering the observations of a high judicial authority like
this Court, the greatest possible care must be taken to relate the
observations of a judge to the precise issues before him and to confine
such observations, even though expressed in broad terms, in the general
compass of the question before him, unless he makes it clear that he
intended his remarks to have a wider ambit. It is not possible for judges
always to express their judgments so as to exclude entirely the risk that
in some subsequent case their language may be misapplied and any
attempt at such perfection of expression can only lead to the; opposite
result of uncertainty and even obscurity as regard the case in hand.
It may be noted that, in this case the Presidential Order dated 3rd
November, 1962, which came up for consideration before the Court,, was
a conditional order, inasmuch as it operated to suspend the right of any
person to move any court for enforcement of the rights conferred by
Articles 21 and 22, only if he was deprived of any such rights under the
Defence of India Act, 1962 or any rule or order made under it. It was in
the context of this Presidential Order that the aforesaid observations were
made by this Court. It is obvious that, on the terms of this Presidential
Order, if a person was deprived of his personal liberty otherwise than in
accordance with the provisions of the Defence of India Act, 1962 or any
rule or order made under it, his right to move the Court for enforcement
of his right of personal liberty under Article 21 would not be barred by the
Presidential Order. That is why it was said in this case, that, if the
detention is illegal for the reason that the mandatory provisions of the
Defence of India Act., 1962 or, any rule or order made thereunder have
been contravened or that the detention has been ordered mala fide, such
a plea would not fall within the terms of the Presidential Order and hence
it would be outside the purview of Article 359, Clause (1). That is the only
way in which these observations can and must be understood. It was
pointed out by the House of Lords as far back as 1901 in Queen v.
Leatham [1901] A. C. 495 "Every judgment must be read as applicable to
the particular facts proved, or assumed to be proved, since the generality
of the expressions which may be found there are not intended to be
exposition of the whole law, but are governed and qualified by the
particular facts in which such expressions are to be found." this Court had
also occasion to point out in the State of Orissa v. Sudhansu Sekhar Misra
MANU/SC/0047/1967 : (1970)ILLJ662SC that the observations in a
judgment must be "only in the context of the question that arose for
decision." It would not be right, as observed by this Court in Madhav Rao
v. Union of India (supra), "to regard a word, a clause or a sentence
occurring in a judgment of this Court, divorced from its context, as
containing a full exposition on the law on a question" particularly "when
the question did not even fall to be answered in that judgment". Here, in
the present case, unlike the Presidential Order dated 3rd November,
1962, which was a conditional Order, the Presidential Order dated 27th
June, 1975 is, on the face of it. an unconditional one and; as such there is
a vital difference in effect between the Presidential Order dated 3rd
November, 1962 and the present Presidential Order. In fact, it appears
that because of the interpretation and effect of the Presidential Order
dated 3rd November, 1962 given in this case and the subsequent cases
following it, the President deliberately and advisedly departed from the
earlier precedent and made the present Presidential Order an
unconditional one. These observations made in the context of a
conditional Presidential Order cannot, therefore, be read as laying down
that a plea that an order of detention is not in accordance with the
provisions of law or is mala fide is outside the purview of Article 359,,
Clause (1) and would not be barred even by an unconditional Presidential
Order such as the one we have in the present case.

547. This distinguishing feature of Makhan Singh's case (supra) was in

fact highlighted and emphasised in the subsequent decision of this Court
in A. Nambiar v. Chief Secretary MANU/SC/0060/1965 : 1966CriLJ586
There Gajendragadkar, C.J., stressed the conditional nature of the
Presidential Order dated 3rd November, 1962 and indicated that it was in
view of the last clause of the Presidential Order, that the aforesaid
observations were made by this Court in Makhan Singh's case. The
learned Chief Justice explained the position in the following words:

In Makhan Singh Tarsikka v. The State of Punjab a Special Bench

of this Court has had occasion to consider the effect of the
Proclamation of emergency issued by the President and the
Presidential Order with which we are concerned in the present
writ petitions.--this Court took the precaution of pointing out that
as a result of the issue of the Proclamation of emergency and the
Presidential Order, a citizen would not be deprived of his right to
move the appropriate court for a writ of habeas corpus on the
ground that his detention has been ordered mala fide. Similarly,
it was pointed out that if a detenu contends that the operative
provisions of the Defence of India Ordinance under which he is
detained suffer from the vice of excessive delegation, the plea
thus raised by the detenu cannot, at the threshold, be said to be
barred by the Presidential Order, because, in terms, it is not a
plea which is relatable to the fundamental rights specified in the
said order.

Let us refer to two other pleas which may not fall within the
purview of the Presidential Order. If the detenu, who is detained
under an order passed under Rule 30(1)(b), contends that the
said Order has been passed by a delegate outside the authority
 conferred on him by the appropriate Government under Section
40 of the Defence of India Act. or it has been exercised
inconsistently with the conditions prescribed in that behalf,, a
preliminary bar against the competence of the detenu's petition
cannot be raised under the Presidential Order, because the last
clause of the Presidential Order would not cover such a petition,
and there is no doubt that unless the case falls under the last
clause of the Presidential Order, the bar created by it cannot be
successfully invoked against a detenu. therefore, our conclusion
is that the learned Additional Solicitor-General is not justified in
contending that the present petitions are incompetent under
Article 32 because of the Presidential Order. The petitioners
contend that the relevant Rule under which the impugned orders
of detention have been passed, is invalid on grounds other than
those based on Articles 14, 19, 21 and 22, and if that plea is
well-founded, the last clause of the Presidential Order is not
satisfied and the bar created by it suspending the citizens'
fundamental rights under Articles 14, 21 and 22 cannot be
pressed into service.

These observations, and particularly the portions underlined by me,

clearly show that it was because of the conditional nature of the
Presidential Order that the view was taken that if a detente contends that
tie order of detention has been made mala fide or that it has been passed
by a delegate outside the authority conferred on him under the Act or
that it has been exercised inconsistently with the conditions prescribed in
that behalf", that is, it is not in accordance with the provisions of law,
such a plea would not be barred at the threshold by the Presidential
Order. The conditional nature of the Presidential Order was also stressed
by this Court in State of Maharashtra v. Prabhakar Pandurang Sangzgiri
MANU/SC/0089/1965 : 1966CriLJ311 where this Court, speaking through
Subba Rao, J., pointed out that in view of the last clause of the
Presidential Order, "if a person was deprived of his personal liberty not
under the Act or a rule or order made thereunder, but in contravention
thereof, his right to move the said courts", that is the High Court and the
Supreme Court "in that regard would not be suspended".

548. It was then contended on behalf of the detenus that in any event the
right of personal liberty is a natural right which inheres in every one from
the moment of his birth and this right can always be enforced by the
detenus under Article 226 by a writ "for any other purpose" and the
Presidential Order does not operate as a bar. When, in answer to this
contention the Union of India and the State Governments relied on His
Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala
MANU/SC/0182/1962 : [1962]45ITR414(SC) , the detenus urged that
Kesavananda Bharati's case (supra) did not say that there is no natural
right inhering in a person, but all that it said was that natural rights do
not stand in the way of amendment of the Constitution. Kesavanand
Bharati's case (supra) according to the detenus, did not negative the
existence and enforceability of natural rights. But this contention of the
detenus is clearly belied by the observations from the judgments of at
least seven of the judges who decided Kesavanand Bharati's case (supra).
Ray, C. J. said at pages 419 of the Report: "Fundamental rights are
conferred by the Constitution. There are no natural rights under our
Constitution." Palekar, J., also said at page 594 of the Report : "The so
called natural rights--have in course of time--lost their utility as such in
the fast changing world and are recognised in modern political
constitutions only to the extent that organised society is able to respect
them." So also Khanna, J. said at page 703 of the Report: "-- the later
writers have generally taken the view that natural rights have no proper
place outside the Constitution and the laws of the State. It is up to the
State to incorporate natural rights, or such of them as are deemed
essential, and subject to such limitations as are considered appropriate, in
the Constitution of the laws made by it. But independently of the
Constitution and the laws of the State, natural rights can have no legal
sanction and cannot be enforced." Mathew, J., too, spoke to the same
effect when he said at page 814 of the Report : "Although called 'rights',
they are not per se enforceable in courts unless recognised by the
positive law of a State". Beg, J. also discounted the theory of natural
rights at pages 881 and 882 of the Report and Dwivedi, J. observed at
page 910 of the Report that to regard fundamental rights as natural rights
overlooks the fact that some of these rights did not exist before the
Constitution and '"were begotten by our specific national experience".
Chandrachud, J., was equally emphatic in saying at pages 975 and 976 of
the Report that "There is intrinsic evidence in Part III of the Constitution
to show that the theory of natural rights was not recognised by our
Constitution makers--The natural theory stands, by and large, repudiated
today--The belief is now widely held that natural rights have no other than
political value". It may be pointed out that Subba Rao. I, also in I.C.
Golak Nath and Ors. v. State of Punjab at page 789 of the Report rejected
the theory of natural rights independent and apart from fundamental
rights in Part III. He said : ''Fundamental rights are the modern name for
what have been traditionally known as natural rights". There is, therefore,
no scope for the contention that even if the enforcement of the
Fundamental right conferred by Article 21 is suspended by the
Presidential Order, the detenu can still enforce a supposed natural right of
personal liberty in a court of law.

549. I may also refer to one other argument advanced on behalf of the
detenus that in any event the right not to be deprived of personal liberty
except by authority of law is a statutory right which can be enforced
despite the Presidential Order suspending enforcement of the right of
personal liberty guaranteed under Article 21. I agree and there can be no
doubt about it that if the positive law of the State decrees that no person
shall be deprived of his personal liberty except according to the procedure
prescribed by law, the enforcement of such statutory right would not be
barred by the Presidential Order. But 1 am afraid, the premise on which
this argument is founded is incorrect. There is no legislation in our
country which confers the right of personal liberty by providing that there
shall be no deprivation of it except in accordance with law. On the
contrary, Section 18 of the Maintenance of Internal Security Act, 1971
enacts that no person in respect of whom an order of detention is made
or purported to be made under Section 3 shall have any right to personal
liberty by virtue of natural law or common law. if any. The Indian Penal
Code in Section 342 undoubtedly makes it penal to wrongfully confine any
person and the offence of wrongful confinement postulates that no one
shall be deprived of his personal liberty except by authority of law. But it
can hardly be said on that account that Section 342 of the Indian Penal
Code confers a right of personal liberty. The utmost that can be said is
that this Section proceeds on a recognition of the right of personal liberty
enacted in Article 21 and makes it an offence to wrongfully confine a
person in breach of the right conferred by that constitutional provision.

550. Then I must refer to one other contention of the detenus and that is
that the remedy under Article 226 can be invoked not only for the
purpose of enforcement of the fundamental rights, but also "for any other
purpose". These words greatly enlarge the jurisdiction of the High Court
and the High Court can issue a writ of habeas corpus if it finds that the
detention of a person is illegal. It is not necessary for this purpose that
the court should be moved by the detenu. It is sufficient if it is moved by
any person affected by the order of detention. When it is so moved and it
examines the legality of the order of detention, it does not enforce the
right of personal liberty of the detenu, but it merely keeps the executive
within the bounds of law and enforces the principle of legality. The
remedy of habeas corpus is a remedy in public law and hence it cannot be
excluded by suspension of enforcement of the right of an individual. This
contention of the detenus does appear, at first sight, to be quite
attractive, but I am afraid, it is not well founded. It fails to take into
account the substance of the matter. When an applicant moves the High
Court for a writ of habeas corpus, he challenges the legality of file order
of detention on the ground that it is not in accordance with law. That
challenge proceeds on the basis that the executive cannot deprive a
person of his personal liberty except by authority of law and that is why
the order of detention is bad. But once it is held that the obligation of the
executive not to deprive a person of his personal liberty except in
accordance with law is to be found only in Article 21 and no where else, it
must follow necessarily that, in challenging the legality of the detention,
what the applicant claims is that there is infraction by the executive of the
right of personal liberty conferred under Article 21 and that immediately
attracts the applicability of the Presidential Order. If we look at the
substance of the matter and analyse what is it exactly that the High Court
is invited to do, it will be clear that what the applicant wants the High
Court to do is to examine whether the executive has carried out the
obligation imposed upon it by Article 21 not to deprive a person of his
personal liberty except according to the procedure prescribed by law and
if it finds that the executive has failed to comply with this obligation, then
to strike down the order of detention. That is precisely what is not
permitted to be done by the Presidential Order, for it plainly amounts to
enforcement of the right of personal liberty conferred by Article 21. The
words "any other purpose" cannot be availed of for the purpose of
circumventing the constitutional inhibition flowing from the Presidential
Order.

551. It is necessary to point out that Article 359 Clause (1) and the
Presidential Order issued under it do not have the effect of making
unlawful actions of the executive lawful. There can be no doubt that the
executive is bound to act in accordance with law and cannot flout the
command of law. The executive cannot also act to the detriment of a
person without authority of law or except in accordance with law. If the
executive takes any action which is not supported by law or is contrary to
law, its action would be unlawful. This unlawful characteristic of the action
is not obliterated by the Presidential Order issued under Article 359
Clause (1). Article 359, Clause (1) and the Presidential Order issued
under it do not give any power to the executive to alter or suspend or
flout the law nor do they enlarge the power of the executive so as to
permit it to go beyond what is sanctioned by law. They merely suspend
the right of a person to move any court for redress against the unlawful
action of the executive, if his claim involves enforcement of any of the
fundamental rights specified in the Presidential Order. This is a position
akin in some respects to that in the United States when the privilege of
the writ of habeas corpus is suspended under Article 1, Placitium 9,
Clause (2) of the United States Constitution and in Great Britain when the
Habeas Corpus Suspension Act is passed. It must inevitably follow from
this position that as soon as the emergency comes to an end and the
Presidential Order ceases to be operative, the unlawful action of the
executive becomes actionable and the citizen is entitled to challenge it by
moving a court of law.

552. It will be clear from what is stated above that whilst a Presidential
Order issued under Article 359, Clause (1) is in operation, the rule of law
is not obliterated and it continues to operate in all its vigour. The
executive is bound to observe and obey the law and it cannot ignore or
disregard it. If the executive commits a breach of the law, its action would
be unlawful, but merely the remedy would be temporarily barred where it
involves enforcement of any of the fundamental rights specified in the
Presidential Order. This would be obvious if we consider what would be
the position under the criminal law. If the executive detains a person
contrary 'to law or shoots him dead without justifying circumstances, it
would clearly be an offence of wrongful confinement in one case and
murder in the other, punishable under the relevant provisions of the
Indian Penal Code, unless the case falls within the protective mantle of
Section 76 or 79 and the officer who is responsible for the offence would
be liable to be prosecuted, if there is no procedural bar built by the CrPC
against the initiation of such prosecution. The Presidential Order
suspending the enforcement of Article 21 would not bar such a
prosecution and the remedy under the Indian Penal Code would be very
much available. The offence of wrongful confinement or murder is an
offence against the society and any one can set the criminal law in motion
for punishment of the offender. When a person takes proceedings under
the CrPC in connection with the offence of wrongful confinement or
murder or launches a prosecution for such offence, he cannot be said to
be enforcing the fundamental right of the detenu or the murdered man
under Article 21 so as to attract the inhibition of the Presidential Order.

553. So also, if a positive legal right is conferred on a person by

legislation and he seeks to enforce it in a court, it would not be within the
inhibition of a Presidential Order issued under Article 359, Clause (1).
Take for example the class of cases of detention where no declaration has
been made under Sub-sections (2) and (3) of Section 16A. This category
would cover cases where orders of detention have been passed prior to
June 25, 1975, because in such cases no declaration under Sub-sections
(2) or (3) of Section 16A is contemplated and it would also cover the
rather exceptional cases where orders of detention have been made after
25th June, 1975 without a declaration under Sub-section (2) or Sub-
section (3) of Section 16A. Sections 8 to 12 would continue to apply in
such cases and consequently the detaining authority would be under an
obligation to refer the case of the detenu to the Advisory Board and if the
Advisory Board reports that there is in its opinion no sufficient cause for
the detention of the detenu,, the State Government would be bound to
revoke the detention order and release the detenu. That is the plain
requirement of Sub-section (2) of Section 12. Now. suppose that in such
a case the State Government fails to revoke the detention order and
release the detenu in breach of its statutory obligation under Sub-section
(2) of Section 12. Can the detenu not enforce this statutory obligation by
filing a petition for a writ of mandamus ? The answer must obviously be:
he can. When he files such a petition for a writ of mandamus, he would
be enforcing his statutory right under Sub-section (2) of Section 12 and
the enforcement of such statutory right would not be barred by a
Presidential Order specifying Article 21. The Presidential Order would have
no operation where a detenu is relying upon a provision of law to enforce
a legal right conferred on him and is not complaining of absence of legal
authority in the matter of deprivation of his personal liberty.

554. I may also refer by way of another illustration to Section 57 of the

CrPC Code, 1973. This Section provides that no police officer shall retain
in custody a person arrested without warrant for a longer period than
under all the circumstances of case is reasonable, and such period shall
not, in the absence of a special order of a magistrate under Section 167,
exceed 24 hours exclusive of the time necessary for the journey from the
place of arrest to the magistrate's court. There is clearly a legal injunction
enacted by this Section requiring a police officer not to detain an arrested
person in custody for a period longer than 24 hours without obtaining a
special order of a magistrate and to release him on the expiration of such
period of 24 hours, if in the meantime such special order is not obtained.
If, in a given case, an arrested person is detained in custody by the police
officer for a period longer than 24 hours without obtaining an order of a
magistrate, can he not apply to the magistrate that he should be directed
to be released by the police officer under Section 57 ? Would such an
application be barred by a Presidential Order specifying Article 21 ? I do
not think so. When the arrested person makes such an application, he
seeks to enforce a statutory obligation imposed on the police officer and a
statutory right created in his favour by Section 57 and that would not be
barred, because what is suspended by a Presidential Order specifying
Article 21 Is the right to move the court for enforcement of the
fundamental right conferred by that Article and not the right to move the
court for enforcement of the statutory right to be released granted under
Section 57.

555. I may take still another example to illustrate the point I am making.
Take a case where an order of detention has been made without a
declaration under Sub-section (2) or Sub-section (3) of Section 16A).
Sections 8 to 12 would admittedly apply in such a case and under Section
8, the detaining authority would be bound to communicate to the detenu
the grounds on which the order of detention has been made and to afford
him the earliest opportunity of making a representation to the appropriate
government. If, in a given case, the detaining authority declines to furnish
the grounds of detention to the detenu or to afford him an opportunity of
making a representation, in violation of the statutory right conferred on
him under Section 8, can be detenu not enforce this statutory right by
filing a petition for a writ of mandamus against the detaining authority ?
Would it be any answer to such an application that the enforcement of the
fundamental right conferred by Article 22, Clause (5) has been suspended
by the Presidential Order? The answer is plainly: no. There are two rights
which the detenu has in this connection: one is the fundamental right
conferred by Article 22, Clause (5) and the other is the statutory right
conferred by Section 8. Though the content of both these rights is the
same, they have distinct and independent existence and merely because
enforcement of one is suspended, it does not mean that the other also
cannot be enforced. The 'theory of reflection' which found favour with the
Kerala High Court in Fathima Beebi v. M. K. Ravindranathan
MANU/KE/0119/1974 is clearly erroneous. If the right conferred under
Section 8 were a reflection of the fundamental right conferred by Article
22, Clause (5) as the Kerala High Court would have us believe, the
removal of the fundamental right under Article 22, Clause (5), which is
the object reflected, must necessarily result in the effacement of the right
under Section 8 which is said to constitute the reflection. But even if
Article 22, Clause (5) were deleted from the Constitution, Section 8 would
still remain on the statute book until repealed by the legislature. The
Presidential Order would, not, therefore, bar enforcement of the right
conferred by Section 8.

556. To my mind, it is clear that if a petition or other proceeding in court

seeks to enforce a positive legal right conferred by some legislation, it
would not be barred by the Presidential Order. I may also point out that,
in the present case, if I had taken the view that there is. independently
and apart from Article 21, a distinct and separate right not to be deprived
of personal liberty except according to law, I would have held, without the
slightest hesitation, that the Presidential Order suspending enforcement
of the fundamental right conferred by Article 21 does not have the effect
of suspending enforcement of this distinct and separate legal right. But
since I have come to the conclusion, for reasons already discussed, that
there is no such distinct and separate right of personal liberty apart from
and existing side by side with Article 21, it must be held that when a
detenu claims that his detention is not under the Act or in accordance
with it, he seeks to enforce the fundamental right conferred by Article 21
and that is barred by the Presidential Order. Of course, this does not
mean that whenever a petition for a writ of habeas corpus comes before
the Court, it must be rejected straightaway without even looking at the
averments made in it. The Court would have to consider whether the bar
of the Presidential Order is attracted and for that purpose, the Court
would have to see whether the order of detention is one made by an
authority empowered to pass such an order under the Act; if it is not, it
would not be State action and the petition would not be one for
enforcement of the right conferred by Article 21. On this view in regard to
the interpretation of the constitutional provision, it is unnecessary to go
into the question of construction and validity of Section 18 of the Act.

557. It was strongly urged upon us that if we take the view that the
Presidential Order bars the right of a person to move a court even when
his detention is otherwise than in accordance with law, there would be no
remedy against illegal detention. That would encourage the executive to
disregard the law and exercise arbitrary powers of arrest. The result
would be--so ran the argument--that the citizen would be at the mercy of
the executive : every one would be living in a state of constant
apprehension that he might at any time be arrested and detained :
personal liberty would be at an end and our cherished values destroyed.
Should we accept a construction with such fearful consequences was the
question posed before us. An impassioned appeal was made to us to save
personal liberty against illegal encroachments by the executive. We were
exhorted to listen to the* voice of judicial conscience as if judicial
conscience were a blithe spirit like Shelley's Skylark free to sing and soar
without any compulsions. I do not think I can allow myself to be deflected
by such considerations from arriving at what I consider to be the correct;
construction of the constitutional provision. The apprehensions and fears
voiced on behalf of the detenus may not altogether be ruled out. It is
possible that when vast powers are vested in the executive, the exercise
of which is immune from judicial scrutiny, they may sometimes be abused
and innocent persons may be consigned to temporary detention. But
merely because power may sometimes be abused, it is no ground for
denying the existence of the power. All power is likely to be abused. That
is inseparable from the nature of human institutions. The wisdom of man
has not yet been able to conceive of a government with power sufficient
to answer its legitimate ends and at the same time incapable of mischief.
In the last analysis, a great deal must depend on the wisdom and
honesty., integrity and character of those who are in charge of
administration and the existence of enlightened and alert public opinion.
It was Lord Wright who said in Liversidge v. Siglov Anderson (supra) that
"the safeguard of British liberty is in the good sense of the people and in
the system of representative and responsible government which has been
evolved."

558. It is true that, if, in a situation of emergency, judicial scrutiny into

legality of detention is held to be barred by a Presidential Order specifying
Article 21, illegalities might conceivably be committed by the executive in
exercise of the power of detention and unlawful detentions might be
made against which there would be no possibility of redress. The danger
may not be dismissed as utterly imaginary, but even so, the fact remains
that when there is a crisis-situation arising out of an emergency, it is
necessary to best the Government with extra-ordinary powers in order to
enable it to overcome such crisis-situation and restore normal conditions.
Even Harold Laski conceded in his Article on "Civil Liberties in Great
Britain in Wartime" that "the necessity--of concentrating immense power
in a Government waging total war is beyond discussion" and what he said
there regarding a Government waging total war must apply equally in
relation to a Government engaged in meeting internal subversion or
disturbance, for the two stand on the same footing so far as our
Constitution is concerned. Now, when vast powers are conferred on the
executive and judicial scrutiny into the legality of exercise of such powers
is excluded,, it is not unlikely that illegalities might be committed by the
executive in its efforts to deal with the crisis situation. Dicey, in his
"Introduction to the Study of Law of the Constitution" frankly admits that
it is "almost certain that, when the suspension of the Habeas Corpus Act
makes it possible for the Government to keep suspected persons in a
prison for a length of time without bringing them to trial, a smaller or
greater number of unlawful acts will be committed, if not by the members
of Ministry themselves, at any rate by their agents." But howsoever
unfortunate this situation might be, that cannot be helped. The
Constitution permits judicial scrutiny to be barred during times of
emergency, because it holds that when a crisis arises in the life of the
nation, the rights of individuals must be postponed to considerations of
State and national safety must override any other considerations. I may
add that there is nothing very unusual in this situation because, as
already pointed out above,, such a situation is contemplated even in
countries like the United States of America and Great Britain which are
regarded as bastions of democracy. But at the same time it must be
remembered by the executive that, because judicial scrutiny for the time
being is excluded, its responsibility in the exercise of the power of
detention is all the greater. The executive is under an added obligation to
take care to see that it acts within the four corners of the law and its
actions are beyond reproach. It must guard against misuse or abuse of
power, for, though such misuse or abuse may yield short-term gains, it is
a lesson of history which should never be forgotten that ultimately means
have a habit of swallowing up ends.

559. Before I leave this question, I may point out that, in taking the view
T have, I am not unaware of the prime importance of the rule of law
which, since the dawn of political history,, both in India of
Brahadaranyaka Uunishad and Greece of Aristotle, has tamed arbitrary
exercise of power by the government and constitutes one of the basic
tenets of constitutionalism. I am not unmindful of the famous words of
Lord Atkin in his powerful dissent in Liversidge v. Anderson (supra) that
"amid the clash of arms"--and much more so in a situation of emergency
arising from threat of internal subversion--"laws are not silent. They may
be changed, but they speak the same language in war and in peace". I
am also conscious--and if I may once, again quote the words of that great
libertarian Judge : "Judges are no respect-or of persons and stand
between the subject and any attempted encroachments on his liberty by
the executive, alert to see that any coercive action is justified in law". But
at the same time

it cannot be overlooked that,

in the ultimate analysis, the protection of personal liberty and the
supremacy of law which sustains it must be governed by the Constitution
itself. The Constitution is the paramount and supreme law of the land and
if it says that even if a person is detained otherwise than in accordance
with the law, he shall not be entitled to enforce his right of personal
liberty, whilst a Presidential Order under Article 359, Clause (1) specifying
Article 21 is in force I have to give effect to it. Sitting as I do, as a Judge
under the Constitution, I cannot ignore the plain and emphatic command
of the Constitution
for what I may consider to be necessary to meet the ends of justice. It is
said that law has the feminine capacity to tempt each devotee to find his
own image in her bosom. No one escapes entirely.. Some yield blindly,
some with sophistication. Only a few more or less effectively resist. I have
always leaned in favour of upholding; personal liberty, for, I believe, it is
one of the most cherished values of mankind. Without it life would not be
worth living. It is one of the pillars of free democratic society. Men have
readily laid down their lives at its altar, in order to secure it, protect it and
preserve it. But I do not think it would be right for me to allow my love of
personal liberty to cloud my vision or to persuade me to place on the
relevant provision of the Constitution a construction which its language
cannot reasonably bear. I cannot assume to myself the role of Plato's
'Philosopher King' in order to render what I consider ideal justice between
the citizen and the State. After all,, the Constitution is the law of all laws
and there alone judicial conscience must find its ultimate support and its
final resting place. It is in this spirit of humility and obedience to the
Constitution and driven by judicial compulsion, that I have come to the
conclusion that the Presidential Order dated 27th June, 1975 bars
maintainability of a writ petition for habeas corpus where an order of
detention is challenged on the ground that it is mala fide or not under the
Act or not in compliance with it.<mpara>

560. On the view I have taken in regard to the answer to be given to the
first question, it would be unnecessary to consider the second question,
but since the second question has been debated fully and elaborate
arguments have been advanced before us touching not only the
interpretation but also the validity of Sub-section (9) (a), of Section 16A,
I think it will be desirable if I pronounce my opinion, on this question as
well. But before I proceed to do so, I may make it clear once again that
though this question is framed in general terms and so framed, it invites
the Court to consider the area of judicial scrutiny in a petition for a writ of
habeas corpus, it is not really necessary to embark on a consideration of
this issue, since it was conceded by the learned Attorney General, and in
my opinion rightly, that the area of judicial scrutiny remains the same as
laid down in the decision of this Court, subject only to such diminution or
curtailment as may be made by Sub-section (9) (a) of Section 16A. The
learned Additional Solicitor General, who argued this question on behalf of
the Union of India, took us through various decisions of English courts on
the is to as to what is the nature of the jurisdiction which the Court
exercises in a petition for a writ of habeas corpus, and what is the manner
in which such jurisdiction must be exercised. It is not necessary for the
,purpose of these appeals to wade through these decisions and to analyse
them, because the practice in our country in regard to the exercise of this
jurisdiction, as it has evolved over the years as a result of the decisions of
this Court, is a little different from that prevailing in England. This Court
has never insisted on strict rules of pleading in cases involving the liberty
of at person nor placed undue emphasis, on the question as to on whom
the burden of proof lies. Even a postcard, written by a detenu from jail
has been sufficient to activise this Court into examining the legality of
detention. this Court has consistently shown great anxiety for personal
liberty and refused to throw out a petition merely on the ground that does
not disclose a prima facie case invalidating the order of detention.
Whenever a petition for a writ of habeas corpus has come up before this
Court, it has almost invariably issued a rule calling upon the detaining
authority to justify the detention. this Court has on many occasions
pointed out that when a rule is issued,, it is incumbent on the detaining
authority to satisfy the Court that the detention of the petitioner is legal
and in conformity with the mandatory provisions of the Act. Vide Naranjan
Singh v. State of Madhya Pradesh MANU/SC/0194/1972 : [1973]1SCR691
, Shaikh Hanif, Gudma Majhi & Kamal Saha v. State of West Bengal
[1974] 2 S.C.R. 258 and Dulal Roy v. The District Magistrate, Burdwan
and Ors. MANU/SC/0112/1975 : 1975CriLJ1322 . It has also been insisted
by this Court that, in answer to the Rule, the detaining authority must
place all the relevant facts before the Court which would show that the
detention is in accordance with the provisions of the Act. It would be no
argument on the part of the detaining authority to say that a particular
ground is not taken in the petition. Vide Nizanuiddin v. The State of West
Bengal [1975] 2 S.C.R. 593. Once the Rule is issued, it is the bounden
duty of the Court to satisfy itself that all the safeguards provided by law
have been seruplously observed and the citizen is not deprived of his
personal liberty otherwise than in accordance with law. Vide Mohd. Alam
v. State of West Bengal MANU/SC/0169/1974 : 1974CriLJ770 and
Khudirain Das v. State of West Bengal and Ors. MANU/SC/0423/1974 :
[1975]2SCR832 This practice marks a slight departure from that
obtaining in Cinland but it has been adopted by this Court in view of the
peculiar socio-economic conditions prevailing in the country. Where large
masses of people are poor, illiterate and ignorant and access to the courts
is not easy on account of lack of financial resources, it would be most
unreasonable to insist that the petitioner should set out clearly and
specifically the grounds on which he challenges the order of detention an
make out a prima facie case in support of those grounds before a Rule
can be issued on he petition and when the Rule is issued, the detaining
authority should not be liable to do anything more than just meet the
specific grounds of challenge put forward by the petitioner in the petition.
Of course, I must make it clear that where an order of detention is
challenged as mala fide, a clear and specific averment to that effect would
have to be made in the petition and in the absence of such averment, the
court would not entertain the plea of mala fide. The petitioner would have
to make out a prima facie case of mala fide before the detaining authority
can be called upon to meet it. Whether a prima facie case has been made
out or not would depend on the particular facts and circumstances of each
case, but the test would be whether the prima facie case made out is of
such a nature that the Court feels that it requires investigation. The Court
would then investigate and decide the question of mala fide on the basis
of the material which may be placed before it by both parties.

561. What is the area of judicial scrutiny in a petition for a writ of habeas
corpus has been laid down by this Court in: numerous decisions. It is not
necessary to refer to all these decisions, since there is one recent
decision, namely, Khudiram Das v. State of West Bengal (supra) where
the entire law on the subject has been reviewed by a Bench of four
judges: of this Court. There,, the effect of the previous decisions has
been considered and the law has been summarised at pages 843 to 845
of the Report in a judgment delivered by me on behalf of the Court. I
have carefully listened to the most elaborate arguments advanced before
us in this case and even after giving my most serious consideration to
them, I still adhere to all that I said in Khudiram Das's case (supra). I
maintain that the subjective satisfaction of the detaining authority is liable
to be subjected to judicial scrutiny on the grounds enumerated by me in
Khudiram Das's case (supra) and the decision in Khudiram Das's case
(supra) lays down the correct law on the subject. The only question is :
how far and to what extent Sub-section (9) (a) of Section 16A has
encroached upon this area of judicial scrutiny and whether it is a valid
piece of legislation.

562. Now the first question that arises for consideration is as to what is
the correct interpretation of Section 16A, Sub-section (9) (a). That Sub-
section reads as follows:
 (9) Notwithstanding anything contained in any other law or any
rule having the force of law--

(a) the grounds on which an order of detention is made

or purported to be made under Section 3 against any
person in respect of whom,, a declaration is made under
Sub-section (2) or Sub-section (3) and any information
or materials on which such grounds or a declaration
under Sub-section (2) or a declaration or confirmation
under Sub-section (3) or the non-revocation under
subjection (4) of a declaration are based, shall be
treated as confidential and shall be deemed to refer to
matters of State and to be against the public interest to
disclose and save as otherwise provided in this Act, no
one shall communicate or disclose any such ground,
information or material or any document containing such
ground, information or material;

The argument urged on behalf of the detenus was that Sub-section (9)
(a) of Section 16A should be read down and construed so as not to
exclude the power of the High Court in the exercise of its jurisdiction
under Article 226 to call for the grounds, information and materials on
which the order of detention is made and the declaration under Sub-
section (2) is based with a view to satisfying itself as regards the legality
of the detention. It was pointed out on behalf of the detenus that, unlike
Section 54 of the Indian Income Tax Act, 1922 and Section 14 of the
Preventive Detention Act, 1950, Sub-section (9) (a) of Section 16A does
not include any reference to a court and it is clear that it is not directed,
against the Court. Reliance was also placed on behalf of the detenus on
the following: statement of the law in Wigmore on Evidence (3rd ed.) vol.
8 at page 801, Article 2379 : "Any statute declaring in general terms that
official records are confidential should be liberally construed to have an
implied exception for disclosure when needed in court of justice", and
reference was also made to the decision of the English Court in Lee v.
Burrell 170 English Reports 1402 in support of the proposition that in a
statutory provision, like Sub-section (9) (a) of Section 16A, the Court
must read an implied exception in favour of the Court and particularly the
High Court exercising constitutional function under Article 226. It was also
stressed on behalf of the detenus that if a wider construction is placed on
Sub-section (9) (a) of Section 16A taking within its sweep the High Court
exercising jurisdiction under Article 226, that Sub-section would be
rendered void as offending Article 226 and hence the narrower
construction must be preferred which excludes the High Court from the
purview of the Sub-section. This contention, attractive though it may
seem because it has the merit of saving judicial scrutiny from being
rendered ineffectual and illusory, is not justified by the plain language of
Sub-section (9) (a) of Section 16A and hence, despite these weighty
considerations which have been pointed out on behalf of the detenus. I
find myself unable to accept it.

563. It is true that Sub-section (9) (a) of Section 16A does not specifically
refer to any court. It does not say in so many terms, as did Section 54 of
the Indian Income Tax Act, 1922, that no court shall require any officer to
produce before it the grounds, information and materials on which the
order of detention is made or the declaration under Sub-section (2) or
Sub-section (3) is based, nor does it contain any provision, like Section
14 of the Preventive Detention Act, 1950 that no court shall allow any
statement to be made or any evidence to be given of such grounds,
information and materials. But there is inherent evidence in the Sub-
section itself to show that it is intended to prevent disclosure of such
grounds, information and materials before a court. It says that the
grounds, information and materials on which the order of detention is
made or the declaration under Sub-section (2) or Sub-section (3) is based
"shall be treated as confidential and shall be deemed to refer to matters
of State and to be against public interest to disclose". There is clearly an
echo here of Section 123 of the Indian Evidence Act. That Section is
intended to prevent disclosure in a court of "unpublished official records
relating to any affairs of State" and likewise, Sub-section (9) (a) of
Section 16A must also be held to be designed to achieve the same end,
namely, prevent, inter alia, disclosure in a court. The words "shall be
treated as confidential" and " shall be deemed to be against the public
interest to disclose" are very significant. If they are to have any meaning
at all, they must be construed as prohibiting disclosure even to a court.
How can the grounds, information and materials referred to in this Sub-
section remain 'confidential, if they can be required to be produced before
a court? How can they be permitted to be disclosed to a court when the
legislature says in so many terms that it would be against the public
interest to disclose them. Even if the court holds its sittings in camera,
there would be a real danger of leakage and that might, in a given case,
jeopardize national security and weaken the efforts towards meeting the
crisis-situation arising out of the emergency. Vide observations in the
speech of Lord Wright at page 266 in Liversidge's case (supra). Sub-
section (9) (a) of Section 16A cannot, therefore, be read down so as to
imply an exception in favour of disclosure to a court.

564. But then it was contended on behalf of the detenus that if, on a
proper construction of its language, Sub-section (9) (a) of Section 16A
precludes the High Court in exercise of its jurisdiction under Article 226,
from calling for the production of the grounds, information and materials
on which the order of detention is made or the declaration under Sub-
section (2) or Sub-section (3) is based, it would impede the exercise of its
constitutional power by the High Court and make it virtually ineffective
and hence it would be void as offending Article 226. This contention
requires serious consideration. Prima facie it appears to be formidable,
but for reasons which 1 shall immediately proceed to state, I do not think
it is well founded.

565. There can be no doubt that Article 226 is a constitutional provision

and it empowers the High Court to issue a writ of habeas corpus for
enforcement of the fundamental right conferred by Article 21 and also for
any other purpose. The High Court has, therefore, constitutional power to
examine the legality of detention and for that: purpose, to inquire and
determine whether the detention is in accordance with the provisions of
law. Now, obviously this being a constitutional power, it cannot be taken
away or abridged by a legislative enactment. If there is any legislative
provision which obstructs or retards the exercise of this constitutional
power, it would be void. There are several decisions of this Court which
recognise and lay down this proposition. It was said by this Court in one
of its early decisions in Hari Vishnu Kamath v. Syed Ahmad Ishaque and
Ors. MANU/SC/0095/1954 : [1955]1SCR1104 that the jurisdiction under
Article 226 having been conferred by the Constitution, limitation cannot
be placed on it except by the Constitution itself. So also n Durga Shankar
Mehta v. Thakur Raghuraf Singh and Ors. MANU/SC/0099/1954 :
[1955]1SCR267 this Court, while considering the effect of Section 105 of
the Representation of the People Act, 1951 which gave finality to an order
made by the Election Tribunal, observed that that Section cannot "cut
down and affect the overriding powers which this Court can exercise in
the matter of grant of special leave under Article 136", and the same rule
was applied to Article 226 in Raj Krushna Base v. Binod Kanungo and Ors.
MANU/SC/0096/1954 : [1954]1SCR913 where the Court held that Section
105 cannot take away or whittle down the power of the High Court: under
Article 226. The same view was taken by this Court in In re : The Kerala
Education Bill, 1957 MANU/SC/0029/1958 : [1959]1SCR995 where S. R.
Das, C. J., speaking on behalf of the Court said in relation to Article 226
that "No enactment of a State legislature can, as long as that Article
stands, fake away or abridge the jurisdiction and power conferred on the
High Court by that Article". this Court in Prem Chand Garg v. Excise
Commissioner, U.P. Allahabad MANU/SC/0082/1962 : [1963] Supp. 1 S.
C. R. 885 actually struck down Rule 12 of Order XXXV of the Supreme
Court Rules which required the petitioner in a writ petition under Article
32 to furnish security for the cost of the respondent, on the ground that it
retarted or obstructed the assertion or vindication of the fundamental
right guaranteed under Article, 32 by imposing a pecuniary obligation on
the petitioner. The principle of this decision must equally apply in a case
where the legislative provision impedes or obstructs the exercise of the
constitutional power of the High Court under Article 226. It is, therefore,
clear that if it can be shown that Sub-section (9) (a) of Section 16A
abridges or whittles down the constitutional power of the High Court
under Article 226 or obstructs or retards its exercise, it would be void as
being in conflict with Article 226.

566. Now, it is settled law that when a petition for writ of habeas corpus
is filed and a Rule is issued, it is the bounden duty of the Court to satisfy
itself that all the safeguards provided by law have been scrupulously
observed and the liberty of the detenu has not been taken away
otherwise than in accordance with law. Vide Khudiram Das v. State of
West Bengal (supra). The Court may also for the purpose of satisfying
itself as regards the legality of detention, call for the record of the case
relating to the detention and look into it. That is what the Court did in
Biren Dutta and Ors. v. Chief Commissioner of Tripura and Anr.
MANU/SC/0076/1964 : 1965CriLJ501 There, an interim order was made
by this Court "directing that the Chief Secretary to the Tripura
Administration shall forthwith transmit to this Court the original file in
respect of the detenus concerned" since the Court wanted to satisfy itself
that the Minister or the Secretary or the Administrator had reviewed the
cases of the detenus and arrived at a decision that their detention should
be continued. So also in M. M. Damnoo v. J & K State
MANU/SC/0175/1972 : 1972CriLJ597 this Court required the State
Government to produce the file containing the grounds of detention so
that the Court could satisfy itself that "the grounds on which the detenu
has been detained have relevance to the security of the State". It would,
therefore, be seen that if there is a legislative provision which prohibits
disclosure of the grounds, information and materials on which the order of
detention is based and prevents the Court from calling for the production
of such grounds, information and materials, it would obstruct and retard
the exercise of the constitutional power of the High Court under Article
226 and would be void as offending that Article.

567. This was the basis on which Section 14 of the Preventive Detention
Act, 1950 was struck down by this Court in A. K. Gopakm's case (supra).
That Section prohibited the disclosure of the grounds of detention
communicated to the person detained and the representation-' made by
him against the order of detention and barred the court from allowing
such disclosure to be made except for purposes of a prosecution for such
disclosure. It was held by this Court-in fact by all the judges who
participated in the decision--that this Section was void as it contravened
inter alia Article 32. Kanta, C. J. observed at page 130 of the Report in a
passage of which certain portions have been underlined by me for
emphasis:
 By that Section the Court is prevented (except) for the purpose
of punishment for such disclosure) from being informed, either by
a statement or by leading evidence, of the substance of the
grounds conveyed to the detained person under Section 7 on
which the order was made, or of any representation made by him
against such order. It also prevents the Court from calling upon
any public officer to disclose the; substance of those grounds or
from the production of the proceedings or report of the advisory
board which may be declared confidential. It is clear that if this
provision is permitted to stand, the Court can have no material
before it to determine whether the grounds are sufficient or not. I
do not mean whether the grounds are sufficient or not. It even
prevents the Court from ascertaining whether the alleged
grounds of detention have anything to do with the circumstances
or class or classes of cases mentioned in Section 12(1) (a)-

Patanjali Sastri, J., also observed to the same effect at page 217 of the
Report:

If the grounds are too vague to enable him to make any such
representation, or if they are altogether irrelevant to the object
of his detention, or are such as to show that his detention is not
bona fide, he has the further right of moving this Court and this
remedy is also guaranteed to him under Article 32. These rights
and remedies, the petitioner submits, cannot be effectively
exercised, if he is pre-vented on pain of prosecution, from
disclosing the grounds to the Court. There is great force in this
contention--The argument (of the Attorney General) overlooks
that it was recognised in the decision referred to above that it
would be open to the Court to examine the grounds of detention
in order to see whether they were relevant to the object which
the legislature had in view, such as, for instance, the prevention
of acts prejudicial to public safety and tranquility, or were such as
to show that the detention was not bona fide. An examination of
the grounds for these purposes is made impossible by Section
14, and the protection afforded by Article 22(5) and Article 32 is
thereby rendered nugatory. It follows that Section 14
contravenes the provisions of Article 22 (5) and Article 32 in so
far as it prohibits the person detained from disclosing to the
Court the grounds of his detention communicated to him by the
detaining authority or the representation made by him against
the order of detention, and prevents the Court from examining
them for the purpose aforesaid, and to that extent it must be
held under Article 13 (2) to be void.
 (emphasis supplied).
And so did the other learned Judges. It is clear from what they said that
inasmuch as Section 14 prohibited the disclosure of the grounds of
detention and prevented the Court from looking at them for the purpose
of deciding whether the detention is legal, it was violative of Article 32
which conferred a fundamental right on a detenu to move this Court for
impugning the legality of his detention.

568. The same view was taken by a Constitution Bench of this Court in M.
M. Damnoo v. J. & K. State (supra). In fact, the observations of Kania, C.
J. in A. K. Gopalan's case (supra), which I have reproduced above, were
quoted with approval in this decision. The petitioner in this case
challenged the legality of his detention by the State of Jammu & Kashmir
on several grounds. One of the grounds was that the proviso to Section 8
of the Jammu & Kashmir Preventive Detention Act was void as it
conflicted with Section 103 of the Constitution of Jammu & Kashmir.
Section 103 was in the same term as Article 226 and it conferred power
on the High Court of Jammu & Kashmir to issue inter alia a writ of habeas
corpus Section 8 of the Preventive Detention Act required the detaining
authority to communicate to the detenu the grounds on which the order
of detention was made, but the proviso to that Section dispensed with the
requirement in case of "any person detained with a view to preventing
him from acting in any manner pre-judicial to the security of the State if
the authority making the order--directs that the person detained may be
informed that it would be against the public interest to communicate to
him the grounds on which his detention has been made". The argument
of the petitioner was that the proviso to Section 8 of the Preventive
Detention Act was violative of Section 103, since it debarred the High
Court and this Court from calling for the grounds of detention and thus
made it virtually impossible for the High Court and this Court to examine
the legality of the detention. this Court agreed that there would have
been some force in the contention of the petitioner, if the High Court and
this Court were prevented from calling upon the State Government to
produce the grounds of detention, but it pointed out that the proviso to
Section 8 was not ultra vires "because the proviso and the Act do not bar
the High Court and this Court from looking into the validity of the
detention". this Court, after referring to the observations made by Kania.
C.J. in A. K. Gopalan's case (supra) in regard to Section 14 of the
Preventive Detention Act, 1950 said:

But fortunately there is no similar provision in this Act and it

leaves the High Court and the Supreme Court free to exercise the
jurisdiction by calling upon the State in appropriate cases to
produce before it the grounds of detention and other material in
 order to satisfy itself that the detenu was being detained in
accordance with law. If it were not so, we would have difficulty in
sustaining the proviso.

It will, therefore, be seen that prima facie this Court was of the view that
if the proviso to Section 8 had debarred the High Court and this Court
from requiring the grounds of detention to be produced "before them, it
would have been difficult to sustain that proviso.

595. The learned Additional Solicitor General, however, sought to

distinguish these two decisions and contended that Sub-section (9) (a) of
Section 16A merely enacts a rule of evidence and it cannot, therefore, be
said to obstruct or retard the exercise of the constitutional power of the
High Court under Article 226 so as to be in conflict with that Article. Now,
there can be no doubt, although at one time in the course of his
arguments Mr. Shanti Bhushan contended to the contrary, that a rule of
evidence can always be enacted by the legislature for the purpose of
regulating the proceedings before the High Court under Article 226. A rule
of evidence merely determines what shall be regarded as relevant and
admissible material for the purpose of enabling the Court to come to a
decision in the exercise of its jurisdiction and it does not in any way
detract from or affect the jurisdiction of the Court and it cannot, in the
circumstances, be violative of Article 226. But in order that it should not
fall foul of Article 226, it must be a genuine rule of evidence. If in the
guise of enacting a rule of evidence, the legislature in effect and
substance disables and impedes the High Court from effectively exercising
its constitutional power under Article 226, such an enactment would be
void. It will be colourable exercise of legislative power. The legislature
cannot be permitted to violate a constitutional provision by employing an
indirect method. If a legislative provision, though in form and outward
appearance a rule of evidence, is in substance and reality something
different, obstructing or impeding the exercise of the jurisdiction of the
High Court under Article 226, the form in which the legislative provision is
clothed would not save it from condemnation. Let us, therefore, examine
whether Sub-section (9) (a) of Section 16A enacts a genuine rule of
evidence or it is a colourable piece of legislation in the garb of a rule of
evidence. If it is the former, it would be valid; but if it is latter, it would be
an indirect and covert infringement of Article 226 and hence void.

596. Now, it is well settled that in order to determine the true character
of a legislative provision, we must have regard to the substance of the
provision and not its form. We must examine the effect of the provision
and not be misled by the method and manner adopted- or the
phraseology employed. Sub-section (9) (a) of Section 16A is inform and
outward appearance a rule of evidence which says that the grounds,
information and materials on which the order of detention is made or the
declaration under Sub-section (2) or Sub-section (3) is based shall be
treated as confidential and shall be deemed to refer to matters of State
and be against the public interest to disclose. But in substance and effect,
is it a genuine rule of evidence? The argument on behalf of the detenus
was that it is only a legislative device adopted by the legislature for the
purpose of excluding the grounds, information and materials from the
scrutiny of the Court and thereby making it virtually impossible for the
Court to examine the legality of the detention and grant relief to the
detenu. If the veil is removed, contended the detenus, the position is no
different from that obtaining in A. K. Gopalan's case (supra) where
Section 14 of the Preventive Detention Act, 1950 was struck down as
constituting a direct assault on Article 226. It was pointed out that, in
every case of detention, the grounds, information and materials would not
necessarily refer to matters of State and be against the public interest to
disclose. Since, even orders of detention purported to be made under
Section 3 are brought within the purview of Sub-section (9) (a) of Section
16A, the grounds, information and materials in cases of such detention
may be wholly unrelated to the objects and purposes set out in Section 3
and in that event, they would mostly have nothing to do with matters of
State and it may not be possible to say that their disclosure would injure
public interest. But even so, Sub-section (9) (a) of Section 16A surrounds
such grounds, information and materials with the veil of secrecy and, to
use the words of Mahajan, J. in A. K. Gopalan's case (supra), places "an
iron curtain around them". This Sub-section, according to the detenus,
compels the Court to shut its eyes to reality and presume by a legal
fiction that in every case, whatever be the actuality--and in many cases
the actuality may be otherwise--the grounds, information and materials
shall be deemed to refer to matters of State and shall be against the
public interest to disclose. This contention of the detenus is undoubtedly
very plausible and it caused anxiety to me. but on deeper consideration, I
think it cannot be sustained.

597. It is significant to note that Sub-section (9) (a) of Section 16A is a

provision enacted to meet the emergency declared under the
Proclamations dated 3rd December, 1971 and 25th June, 1975. Vide Sub-
section (1) of Section 16A. It comes into operation only when there is a
declaration made under Sub-section (2) or Sub-section (3) that the
detention of the person concerned is necessary for dealing effectively with
the emergency. The condition precedent to the applicability of the Sub-
section is that there should be a declaration under Sub-section (2) or
Sub-section (3) in respect of the person detained. It may also be noted
that though the words "or purported to be made" were added after the
words "an order of detention is made" in the Sub-section by the
Maintenance of Internal Security (Amendment) Act, 1976, no such or
similar words were added in relation to the declaration under Sub-section
(2) or Sub-section (3). Sub-section (9) (a) of section 16A, therefore,
assumes a valid declaration under Sub-section (2) or Sub-section (3) and
it is only when such a declaration has been made, that Sub-section (9)
(a) of Section 16A applies or in ether words it is only in cases where a
person is detained in order to deal effectively with the emergency that the
disclosure of the grounds. information and materials is prohibited by Sub-
section (9) (a) of Section 16 A.

598. I have already pointed out how emergency can create a crisis
situation imperiling the existence of constitutional democracy and
jeopardizing the functioning of the social and political machine. It is
therefore, reasonable to assume that where a person is detained in order
to deal effectively with the emergency, the grounds, information and
materials on which the order of detention is made or the declaration
under Sub-section (2) or Sub-section (3) is based would, by, and large,
belong to a class of documents referring to matters of State which it
would be against public interest to disclose. What was observed by two of
the Law Lords in Liversidge's case (supra) would be applicable in such a
case, Viscount Maugham said at page 221 of the Report. "it is obvious
that in many cases he will be acting on information of the most
confidential character, which could not be communicated to the person
detained or disclosed in court without the greatest risk of prejudicing the
future efforts of the Secretary of State in this and like matters for the
defence of the realm--It is sufficient to say that there must be a large
number of cases in which the information on which the Secretary of State
is likely to act will be of a very confidential nature," and Lord Wright also
observed to the same effect at page 266 of the Report : "In these cases
full legal evidence or proof is impossible, even if the Secretary does not
claim that disclosure is against the public interest, a claim which must
necessarily be made in practically every case, and a claim which a judge
necessarily has to admit." In view of the fact that the detention is made
in order to deal effectively with the emergency, the grounds, information
and materials would in most cases be confidential and if a claim of
privilege were made under Section 123 of the Indian Evidence Act, it
would almost invariably be held justified. The Legislature, therefore,
taking into account the privileged character of the grounds, information
and materials in the generality of cases, enacted Sub-section (9)(a) of
Section 16A laying down a rule that the grounds, information and
materials shall be deemed to refer to matters of State which it would be
injurious to public interest to disclose, instead of leaving it to the
discretion of the detaining authority to make a claim of privilege in each
individual case and the court to decide it. The rule enacted in Sub-section
(9) (a) of Section 16A bears close analogy to a rule of conclusive
presumption and in the circumstances, it must be regarded as a genuine
rule of evidence. I may make it clear that if the grounds, information and
materials were not, by and large, of such a character as to fall within the
class of documents relating to matters of State which it would be injurious
to public interest to disclose, I would have found it impossible to sustain
this statutory provision as a genuine rule of evidence. If the grounds,
information and materials have no relation to matters of State or they
cannot possibly be of such a character that their disclosure would injure
public interest, the Legislature cannot, by merely employing a legal
fiction, deem them to refer to matters of State which it would be against
public interest to disclose and thereby exclude them from the judicial ken.
That would not be a genuine rule of evidence : it would be a colourable
legislative device --a fraudulent exercise of power. There can be no
blanket ban on disclosure of the grounds, information and materials to
the High Court or this Court, irrespective of their true character. That was
the reason why Section 14 of the Preventive Detention Act, 1950 was
struck down by this Court in A. K. Gopalan's case (supra) and this Court
said in M. M. Damnoo's case (supra) that if the proviso to Section 8 had
debarred the High Court and this Court from calling for the grounds of
detention and looking into them, it would have been difficult to sustain
that proviso. But here, on account of the declaration under Sub-section
(2) or Sub-section (3), which, as I said above, must be a valid declaration
in order to attract the applicability of Sub-section (9) (a) of Section 16A,
the grounds, information and materials in almost all cases would be of a
confidential character falling within the class of documents privileged
under Section 123 and hence the rule enacted in the Sub-section
genuinely partakes of the character of a rule of evidence. It may be
pointed out that if the declaration under Sub-section (2) or Sub-section
(3) is invalid Sub-section (9) (a) of Section 16A will not be attracted and
the grounds, information and materials on which the order of detention is
made would not be privileged under that Sub-section. I am, therefore, of
the view that Sub-section (9) (a) of Section 16A enacts a genuine rule of
evidence an it does not detract from or affect the jurisdiction of the High
Court under Article 226 and hence it cannot be successfully assailed as
invalid.

599. I accordingly answer the first question by saying that the

Presidential Order dated June 27, 1975 bars maintainability of a petition
for a writ of habeas corpus where an order of detention is challenged on
the ground that it is vitiated by mala fides, legal or factual, or is based on
extraneous considerations or is not under the Act or is not in compliance
with it. So far as the second question is concerned, I do not think there is
any warrant for reading down Sub-section (9) (a) of Section 16A so as to
imply an exception in favour of disclosure to the Court, and, on the
interpretation placed by me on that provision, T hold that it does not
constitute an encroachment on the constitutional jurisdiction of the High
Court under Article 226 and is accordingly not void. In the circumstances,
I allow the appeals and set aside the judgments of the High Courts
impugned in the appeals.

ORDER

600. By majority--

1. In view of the Presidential Order dated 27 June 1975 no

person has any locus standi to move any writ petition under
Article 226 before a High Court for habeas corpus or any other
writ or order or direction to challenge the legality of an order of
detention on the ground that the order is not under or in
compliance with the Act or is illegal or is vitiated by malafides
factual or legal or is based on extraneous considerations;

2. Section 16A(9) of the Maintenance of Internal Security Act is

constitutionally valid;

3. The appeals are accepted. The judgments are set aside;

4. The petitions before the High Courts are now to be disposed of

in accordance with the law laid down in these appeals.

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