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Bajirao Baliram Mali Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberCriminal Application No. 1358 of 1975
Judge
Reported in(1977)79BOMLR189
AppellantBajirao Baliram Mali
RespondentThe State of Maharashtra
DispositionAppeal dismissed
Excerpt:
constitution of india - articles 21, 352 and 359--proclamations of emergency dated december 3, 1971 and june 25, 1975--presidential order dated june 27, 1975--maintenance of internal security act (xxvi of 1971), section 16a--analysis of decision of supreme court.; the petitioner was originally detained in pursuance of an order made by the district magistrate, dhule, on june 29, 1975 in exercise of his powers conferred by section 3(1)(a)(ii) read with section 3(2)(a) of the maintenance of internal security act, 1971. the district magistrate furnished to the petitioner on july 1, 1975 the grounds on which the detention order was based. thereafter on july 9, 1975 the district magistrate rescinded the earlier order and directed that the petitioner be released forthwith stating that he was.....chandurkar, j.1. in this petition filed by the petitioner who is a detenu under the maintenance of internal security act, 1971 (hereinafter referred to as the 'misa'), the main contention of the learned counsel for the petitioner is that h spite of the decision of the supreme court in a.d.m., jabalpur v. s. shukla : 1976crilj945 (hereinafter referred to as 'shukla's case'), there is still a small area of judicial review within which the high court functioning under article 226 of the constitution of india is entitled to exercise its powers and make an order for release o the detenu.2. the facts leading to the filing of this petition are not in dispute. originally the petitioner came to be detained in pursuance of an order made by the district magistrate, dhule, on june 29, 1975. this.....
Judgment:

Chandurkar, J.

1. In this petition filed by the petitioner who is a detenu under the Maintenance of Internal Security Act, 1971 (hereinafter referred to as the 'MISA'), the main contention of the learned Counsel for the petitioner is that h spite of the decision of the Supreme Court in A.D.M., Jabalpur v. S. Shukla : 1976CriLJ945 (hereinafter referred to as 'Shukla's case'), there is still a small area of judicial review within which the High Court functioning under Article 226 of the Constitution of India is entitled to exercise its powers and make an order for release o the detenu.

2. The facts leading to the filing of this petition are not in dispute. Originally the petitioner came to be detained in pursuance of an order made by the District Magistrate, Dhule, on June 29, 1975. This order (exh. C) recited that where as the District Magistrate, Dhule, was satisfied with respect to Shri Bajirao Baliram Mali of Dhule that it was necessary to make an order of detention with a view to preventing him from acting in any manner prejudicial to the security of the State and the maintenance of public order, he directs that the said Shri Bajirao Baliram. Mali should be detained and this order was made in the exercise of hi powers conferred by Section 3(1)(a)(ii) read with Section 3(2)(a) of the MISA. After the order was passed, the petitioner continued to be in detention and it is also no in dispute that the District Magistrate furnished on July 1, 1975 to the petitioner the grounds on which the detention order was made. Thereafter the District Magistrate passed an order on July 8, 1975 which road as follows:

Whereas, the District Magistrate, Dhulia is satisfied that it is no longer necessary to continue under detention Shri Bajirao Baliram Mali of Dhulia who has been directed to b detained under order No. POL/DC/5/75, dated 29.6.1975.

Now, therefore, in exercise of the powers conferred by Sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971 (26 of 1971) read with Section 21 of the General Clauses Act, 1897 (10 of 1897) the District Magistrate, Dhulia hereby rescinds the said order No. POL/DC/5/75 and directs that Shr Bajirao Baliram Mali of Dhulia shall be released forthwith on receipt of this order by the officer in charge of the place where he has been detained.

After this order was passed on July 9, 1975, the same District Magistrate passed another order on July 9, 1975 which read as follows:

Whereas, the District Magistrate, Dhulia is satisfied with respect to Shri Bajirao Baliram Mali of Dhulia that, with a view to preventing him from acting in any manner prejudicial to the Security of the state and the maintenance of Public Order, it is necessary to make the following order:

Now, therefore, in exercise of the powers conferred by Sub-clause (ii) of the Clause (a) of Sub-section (1) read with clause (a) of Sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971 (26 of 1971), the District Magistrate, Dhulia hereby directs that the said Shri Bajirao Baliram Mali of Dhulia be detained.

3. The District Magistrate also made a declaration on the same day under Section 16A of the MISA that it was necessary to detain the petitioner for effectively dealing with the emergency referred to in Section 16A of MISA. There is on record a later order dated July 24, 1975 which states that the Government of Maharashtra has reviewed the declaration made by the District Magistrate on July 9, 1975 and that the Government had confirmed the said declaration in exercise of the powers conferred on it by the proviso to Sub-section (3) of Section 16A of the MISA. There is some dispute as to the point of time which the orders dated July 8,1975 and July 9,1975 were served on the detenu because while according to the petitioner, both the orders were served on July 9, 1975, according to the respondents, the detenu was released in pursuance of the order of revocation dated July 8, 1975 and thereafter, a fresh order of detention was served on the detenu and the detenu was redetained in pursuance of the fresh order of detention.

4. The substantial contention raised on behalf of the petitioner in this petition regarding the validity of the detention order dated July 9, 1975 is, to quote the words of the learned Counsel for the petitioner, 'Satisfaction in one nullifies the satisfaction in the other and, therefore, the impugned order is without the requisite satisfaction and ceases to be an order under Section 3 of the MISA. It is, therefore, contended that the order on the face of it does not comply with the statutory prescription, as ruled by Mr. Justice Chandrachud in para. 477 of his judgment, or the purpose of detention was not within the terms of law, as contemplated by the observations of Mr. Justice Chandrachud in para. 492 of the judgment in Shukla's case. The learned Counsel contends that it is not the ratio of the decision of the Supreme Court in Shukla's case that circumstances attendant on the making of an order of detention should be ignored. It is also contended that it was not the ratio of the decision in Shukla's case that in view of the Presidential Order dated June 27, 1975 made under Article 359(1) of the Constitution, every petition for habeas corpus or for any other writ, order or direction under Article 226 of the Constitution of India challenging an order of detention should be dismissed in limine without an enquiry of any nature whatsoever or that the petition is barred at the very threshold or that there is a blanket ban on every such petition asking for a relief of habeas corpus. The learned Counsel for the petitioner relying on certain observations in the judgments of Mr. Justice Beg, Mr. Justice Chandrachud and Mr. Justice Bhagwati contends that a preliminary objection with regard to the maintainability of such a petition can be sustained only in a case where:

(a) the order is passed by an officer who has authority or jurisdiction to pass the same,

(b) the order is duly authenticated,

(c) the order records the purported satisfaction to detain a person under the relevant law of detention,

(d) the order does not fall outside tho provisions of the relevant law of detention, and

(e) the order is operative either before or after its confirmation by the appropriate Government.

According to the learned Counsel, if an order does not fall within the above mentioned catagories, a petition for writ of habeas corpus cannot be dismissed on the ground that it is barred by the Presidential Order of June 27, 1975 but that the said petition must be hoard on merits and in such cases, a claim for an order for release from detention can be enforced even during the Emergency.

5. In order to decide whether the petitioner has a locus to ask for the relief which he seeks in this petition, it is necessary to refer in some detail to the decision of the Supreme Court in Shukla's case. Both the learned Counsel for the petitioner and the learned Advocate-General appearing on behalf of the respondents have taken us extensively through the relevant passages in the judgments of the learned Judges who have propounded the majority view in Shukla's case.

6. According to the learned Advocate-General, it was clearly laid down by the Supreme Court in Shukla's case that Article 21 is the sole repository of the right of personal liberty of a citizen and that since the Presidential Order dated Juno 27, 1975 has taken away the locus of a parson against whom an order of detention is passed under the MISA to enforce the right under Article 21 of the Constitution of India, the petition must be rejected on this short ground. The learned Advocate-General contends that the view propounded by the majority Judges of the Bench which decided Shukla's case clearly is that any relief which is asked for the enforcement of a right of personal liberty must be referred to the enforcement of Article 21 of the Constitution and the Court will have no jurisdiction to deal with such a petition. The learned Advocate-General argued that the effect of the majority view of the Supreme Court is that such a petition asking for release is barred even in a case where there is no order of detention in writing.

7. It is, however, not necessary for us to decide on the facts of the instant case whether a detention of a detenu, where there is no order in writing, cannot be challenged by a petition for writ of habeas corpus, because admittedly in the instant case, there is an order of detention passed by the District Magistrate, Dhule, and the question which we have, therefore, to decide is, what will be scope of such a petition which challenges an order passed under Section 3 of the MISA in the light of the decision of the Supreme Court in Shukla's case.

8. The fact that the President of India made a proclamation on June 25, 1975 which is known as the proclamation of Emergency made in exercise of the powers conferred by Clause (1) of Article 352 of the Constitution of India declaring that grave emergency exists whereby the security of India is threatened by the internal disturbance is now common knowledge. It is also wall-known that on June 27, 1975, the President of India made an order in exercise of his powers under Article 359(1) of the Constitution suspending the right of a parson to move any Court for the enforcement of the right conferred by Article 14, Article 21 and Article 22 of the Constitution and further directing suspension of all proceedings pending in any Court for the enforcement of the above mentioned right for the period during which the proclamation of Emergency made under Clause (1) of Article 352 of the Constitution on December 3, 1971 and on June 25, 1975 are both in force. It is not necessary to reproduce the text of that order.

9. Before deciding the contentions of the petitioner some reference is now required to be made to the amended provisions of the MISA in Sections 16A and 18 thereof. Section 16A was introduced in the MISA by Act 39 of 1975 with effect from June 29, 1975. The material provisions 30 far as the present case is concerned are to be found in Section 16A(1), (2) and (3) of the Act. They are as follows:

16A. (I) 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, I975, whichever period is the shortest.

The case of every parson (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 Proclamation referred to in Sub-section (2) have been issued (hereafter in this section referred to as the emergency) and if, on such review, the appropriates 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.

(2) 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.

Section 16A later came to be amended by Act 14 of 1976 which was published on January 25, 1976. The Amending Act incorporated and in some respect modified the changes which had been brought about in the principal Act by Ordinance No. 16 of 1975 and Ordinance No. 22 of 1975. The material change in Section 16A was the addition of Sub-section (9) which reads as follows:

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 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 disclosure 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.

Section 18 of the Act which was introduced in the MISA by Act 39 of 1975 was further amended and the amended provision in Section 18 read as follows:

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.

10. Now, the scope of the Presidential Order dated Juno 27, 1975 and the validity of Section 16A(9) and Section 18 of the MISA came up for consideration in Shukla's case before the Supreme Court. While so far as Sections 16A(9) and 18 of the MISA are concerned, it is sufficient to mention that both those provisions have been held to be valid, it is necessary to refer in some detail to the pronouncement of the Supreme Court with regard to the effect of the Presidential Order dated June 27, 1975.

11. It may be stated at this stage that the appeals before the Supreme Court arose out of the decisions of different High Courts which had taken the view that notwithstanding the continuance of the emergency and the Presidential Order suspending the enforcement of fundamental rights conferred by Articles 14, 21 and 22 of the Constitution, the High Courts can examine whether an order of detention was in accordance with the provisions of the MIS A which constitute the conditions precedent to the exercise of powers thereunder except those provisions of the Act which are merely procedural or whether the order was made mala fide 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 had also held that in spite of the suspension of the enforcement of fundamental rights conferred by Articles 21 and 22 of the Constitution, a person's right of 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 distinct from merely procedural provisions or are mala fide or are not based on relevant materials by which the detaining authority could have been satisfied that the order of detention was necessary.

12. The question which fell for decision before the Supreme Court was, to quote the question formulated by the learned Chief Justice of India, 'Whether in view of the Presidential Orders dated June 27, 1975 and January 8, 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. 'The second question was:' If such a petition is maintainable what is the scope or extent of judicial scrutiny particularly in view of the Presidential Order dated Juno 27, 1975 mentioning, inter alia, Article 22 of the Constitution and also in view of Sub-section (9) of Section 16A of the Act.' The answer to these questions, as formulated in the final order which is an order by the majority of the learned Judges constituting the Bench, reads as follows:

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 mala fides factual or legal or is based on extraneous considerations.

13. There is hardly any ambiguity about the proposition of law laid down by the majority as contained in the concluding order by the majority of the learned Judges in Shukla's case. However, these observations cannot be construed as laying down that when a detenu comes to Court asking for a relief of habeas corpus, the petition must be dismissed straightaway even, without going into it. Mr. Justice Bhagwati has clearly negatived such a contention. In para. 556 of the judgment the learned Judge has pointed out that there is no distinct and separate right of personal liberty apart from and existing side by side with Article 21 and 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. After making these observations with regard to the limited nature of the enquiry which could be mad a on a petition for habeas corpus being filed in a High Court, the learned Judge has observed as follows in para. 556 (p. 1383):

.Of course, this does not mean that whenever a petition for a writ of habeas corpus conies before the Court, it must be rejected straightway 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.

Thus, according to Bhagwati J., in a petition for habeas corpus, the Court would still have to consider whether the bar of the Presidential Order was attracted and the bar of the Presidential Order, 'would be attracted only where the order of detention is one made by an authority empowered to pass such an order under the Act.

14. The scope of the limited enquiry, which is possible can be gathered from the different passages of the judgments of the learned Judges of the Supreme Court who. constituted the majority.

The learned Chief Justice of India has pointed out that 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, because it is not at all possible for the Court to call for and 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. Those observations clearly indicate that whatever may be the limited nature of the enquiry, it is not possible to have a look at the grounds on which the order of detention is based. The position has been made fully dear in para. 124 of the judgment of the learned Chief Justice where he has observed (p. 1240):

The production of the order which is duly authenticated constitutes a peremptory answer to the challenge.

In other words, the enquiry can be only whether there is a duly authenticated order.

15. That this is the limited scope of the enquiry is further clear from the judgment of Mr. Justice Beg where the learned Judge has observed as follows in para. 327 (p. 1302):

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 (sic. probably it is a mistake for the word 'order'.) 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.

(Italics ours.)

The learned Judge has further observed that all the cases before the Supreme Court were cases of detention by duly empowered officers under prima facie good order and it was pointed out (p. 1311):

.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.

It is further pointed out in para. 382 by the same learned Judge dealing with the scope of a petition for habeas corpus (p. 1316):

.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. (Sic. here also we feel that the word 'return' is a mistake for the word 'order'.)

The whole scope of the enquiry is succinctly put by Mr. Justice, Beg in para. 400 of his judgment whore ho has observed (p. 1320):

A prima facie valid detention order, that is to say, one duly authenticated and passed by an officer authorised to make it, recording a purported satisfaction to detain the petitioner under the 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.

16. Both the learned Chief Justice and Mr. Justice Beg, therefore, have dearly laid down that once a duly authenticated order is produced, there is no further enquiry required to be made and oven with regard to the order recording purported satisfaction, the learned Chief Justice of India has pointed out in para. 103 that the expression 'purported to be made under Section 3 of the Act Section 3 will include an executive act made by the District Magistrate within the scope of his authority as District Magistrate even if the order is made in breach of the section or is mala fide and as long as the District Magistrate acts within the scope of his authority as a District Magistrate an order passed by him is an order made or purported to be made under Section 3 of the Act. Beg J. has also observed in para. 296 that

.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.(p. 1295).

17. The same is the position of law as stated by Mr. Justice Chandrachud Reference may be made to the observations of Chandrachud J. in para. 477 of his judgment. After referring to the decisions in Makhan Singh v. State of Punjab : 1964CriLJ217 , Ram Manohar v. State of Bihar : 1966CriLJ608 and State v. Prabhakar Pandurang : 1966CriLJ311 , dealing with the difference between the Presidential Order dated November 3, 1962 and the Presidential Order with which we are concerned, the learned Judge has observed as follows (p. 1343):

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, then is no scope for the inquiry whether the order is consistent OT in conformity with any particular Act.

(Italics ours.)

Then referring to the Presidential Order dated June 27, 1975 the learned Judge observed in para. 477 as follows (p. 1348):

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

(Italics ours.)

Later referring to the amendment of Section 18 by introducing the words 'purported to be made' in that provision, the learned Judge has observed in para. 489 as follows (p. 1847):

.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 otherwise 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.

18. The ratio of the judgments of all the learned Judges except Khanna J., therefore, appears to be that the only enquiry which can be made, if an order of detention is challenged, is whether it is a duly authenticated order which ex facie shows that it is made or it purports to be made under the provisions of the MISA, as in the instant case, and whether the parson who has made that order is authorised to make that order. It is difficult to imagine even hypothetically that a person will be detained without a duly authenticated order or that an order on the face of it will not indicate that it is made or is purported to be made in the exercise of the statutory powers of detention given under the relevant provision or that the person who has made the order has no legal authority to make that order. Having regard to the above position of law, it is difficult for us to hold that a Court in the exercise of its powers under Article 226 of the Constitution in a petition for a relief of habeas corpus is entitled to go behind the detention order if the order is duly authenticated and is made by the parson authorised to make an order of detention under the MISA.

19. Now, the learned council on behalf of the petitioner has vehemently pressed before us that each of the three learned Judges out of the majority of four, that is, Mr. Justice Beg, Mr. Justice Chandrachud and Mr. Justice Bhagwati have contemplated certain exceptions to the established proposition that a Court will not be able to go behind a duly authenticated order. Extensive reference was made to some of the observations of these there learned Judges which wore relied upon by the learned Counsel for the petitioner to show that the fact that the District Magistrate, who positively reaches a conclusion on July 8, 1975 that it is not necessary to detain the petitioner, passed an order on the next day that it is necessary to detain the petitioner indicated that the order on the face of it indicated want of application of mind. In the peculiar facts and circumstances of the case, according to the learned Counsel, the order on the face of it does not comply with the statutory prescription and it is apparent on the face of the two orders read with the declaration made under Section 16A(3) that the declaration has been made without application of mind or for a collateral purpose or is vitiated by mala fides or in any case 'on any other ground on which a detention order could be challenged before the Presidential order of 27th Juno 1975.

20. We were referred by the learned Counsel firstly to the observations of Beg J. in para. 317. Since heavy reliance is placed on these observations, we reproduce them below (p. 1300):

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.

It is not possible for us to read these observations out of context. These observations reiterate the position that the reasons which vitiate the order must either appear on the face of the order or must appear on the face of the return. The circumstances in which a detention order would stand vitiated, according to Beg J., are that the order or the return discloses on the face of it personal malice of the detaining authority or a ground outside the Act, in which case no further enquiry is necessary. These observations have to be read in the light of what Beg J. has observed in the latter part of the same paragraph. He has made it clear that such is a purely hypothetical case and, as he later observes.

.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.' (p. 1800).

This exception of 'an utterly inconceivable situation' does not create any infirmity in the majority view that on the face of it, the order must be a duly authenticated order, that it must be made by the person duly authorised to make it and that it must be made or purported to be made under the Act as contended on behalf of the petitioner.

21. Apart from this, so far as the petitioner is concerned, it is difficult to hold that his case is one of the kind of hypothetical or inconceivable cases contemplated by para. 317 of the judgment.

22. Reference was then made to the observations of Beg J. in para. 358 of the judgment. The learned Judge has there made the following observations (p. 1311):

Detentions which not only do not but could not possibly have any apparent, ostensible, or purported executive authority of the State whatsover 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.

It is difficult for us to hold that the petitioner's case falls within the exception listed by Beg J. It is not contended that the District Magistrate, Dhule, does not have the authority to make an order of detention and since that is not the contention, the present case will not fall within one of the possible oases contemplated by Bag J. in para. 358 of his judgment.

23. We were then taken to the judgment of Mr. Justice Chandrachud and reference was made to the concession made by the learned Attorney General before the Court referred to by Chandrachud J. in para. 416 after mentioning the contention of the Attorney General that Article 21 was the sole repository of the right to life and personal liberty and that the detenus have no locus to file the petitions for habeas corpus. It was conceded by the learned Attorney General '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'. The concessions referred to by Chandrachud J. in para. 416 do not in any way out down the rigour of the ratio of the majority view in Sukla's case. These concessions, however, cannot be read as meaning that they have the effect of enlarging the scope of the enquiry which is contemplated by the majority view and the concession, if it is considered properly, shows that even the concession is that relief can be granted only if the order on the face of it appears to be bad in the sense that it is passed by a parson not authorised to pass it or that it is passed for a purpose outside those mentioned in Section 3(1) or that it does not bear any signature at all. All these three contingencies are nothing else but an antithesis of what has been held by the majority view to be a complete answer to a petition for a writ of habeas corpus, namely, that there must be a duly authenticated order, that it must be passed or purported to be made under the Act and that the person making it had the power or the jurisdiction to make that order. It is, no doubt, true that Mr. Justice Chandrachud has observed in para. 478 that 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 enquiry of any sort is required to be under taken in such a case. But it is important to bear in mind the further observations in the same paragraph where the learned Judge has observed (p. 1344):

.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.

These observations of Chandrachud J. again show that the ulterior motive must appear on the face of the order which again is a hypothetical case as contemplated by Mr. Justice Beg.

24. How far these observations with regard to hypothetical cases can really be of any assistance to the petitioner, it is difficult to sea. What were referred to as hypothetical cases by both Mr. Justice Beg and Mr. Justice Chandrachud can rarely arise. After referring in para. 317 to the 'almost utterly inconceivable situation' in which power to issue a writ of habeas corpus could be exercised, Beg J. has observed in para. 318 as follows (p. 1300):

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 ant, 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.

These observations of Beg J., in our view, are a complete answer to any argument which tends to bring homo a point that during period during which the Presidential Order is in force, there will at least be small number of cases where this Court can in exercise of its powers under Article 226 of the Constitution still have jurisdiction to grant a relief by making an order of release of the detenu. If ever such a case arises it will be a matter to be considered in that case whether it is governed by any one of the inconceivable exceptions which are referred to by Mr. Justice Beg and Mr. Justice Chandrachud. Suffice it to say for the purposes of the present case that it does not fall into any one of those inconceivable or hypothetical cases referred to by the two learned Judges in their judgments. Therefore, the fact that certain exceptions have been referred to by Mr. Justice Beg and by Mr. Justice Chandrachud cannot in any way be of assistance to the petitioner.

25. When the learned Counsel for the petitioner argues that we must not restrict our attention to merely the order dated July 9, 1975 and the declaration made under Section 16A(3) of the MISA but that we must probe into the attendant circumstances, the attendant circumstance being that a day prior, the District Magistrate was satisfied that the detention of the petitioner was not necessary, the learned Counsel is clearly asking us to make an enquiry into the circumstances in which the order dated July 9, 1975 came to be made in order to draw an inference that the impugned order of detention and this impugned declaration is vitiated either by mala fides or by malice or on account of non-application of mind. This, in our view, is clearly impermissible in view of the ratio of the decision of the Supreme Court in Shukla's case and we cannot go behind the order of detention dated July 9, 1975. It is not contended that the District Magistrate, Dhule, was not authorised to make that order. It is a duly authenticated order made and not purported to be made under Section 3 of the MISA. Once these conditions are satisfied, as held by the majority judgments of the Supreme Court, the challenge to the detention must be negatived at the threshold.

26. Our attention is invited to certain averments made in the return filed in this case by the District Magistrate in which the District Magistrate has Batched that when he passed the fresh order of detention on July 9, 1975, he did so on the same material on which he had passed the original order of detention on June 29, 1975. He has also stated that the second order of detention dated July 9, 1975 became necessary in view of the amendments made in the MISA by Ordinance No. 4 of 1975 and that he had, therefore, revoked on July 8, 1975 the order dated June 29, 1975.

27. Now, it is true that those averments have been made in the return. But of what use can those averments be to the petitioner if his very locus to challenge his detention is taken away by the Presidential Order? We cannot go into the conduct of the District Magistrate in order to ascertain whether he had applied his mind to the question whether his detention was necessary for dealing with the emergency and whether the order of detention is in any way vitiated. Going into that question at the instance of the petitioner will clearly amount to transgressing the limits laid down by the Supreme Court in Shukla's case after considering the effect of the Presidential Order. To put it in the words of Beg J., 'To do so would be plainly to countenance a violation of the Constitution.' It is pointed out by the learned Judge that Courts must presume that executive authorities are acting in conformity with both the spirit and the 'substance of the law and that all official acts are presumed to have been rightly and regularly done. It was pointed out that if the burden to displace that presumption is upon the detenu, he cannot in a habeas corpus petition under Article 226 of the Constitution ask the Court to embark on that enquiry during the emergency to allow him to rebut that presumption. It is not, therefore, open to us to go behind the order of detention dated July 9, 1975 and make an enquiry about the alleged non-satisfaction or non-application of the mind by the District Magistrate. We must, therefore, negative the challenge of the petitioner to the detention order dated July 9, 1975.

The learned Counsel for the petitioner then contended that the petitioner was entitled to challenge the declaration under Section 16A(3) on the ground that it was made without application of mind or for a collateral purpose or vitiated by mala fides. According to the learned Counsel, the provisions of MISA require that in a case where a declaration is not made under Section 16A(3), the case of the detenu was required to be submitted to the Advisory Board and in a case which is not governed by Section 16A(3), the detenu had a legal right under Section 8 to 12 which he was otherwise entitled to enforce). The contention is that if the declaration under Section 16A(3) is struck down, then the order of detention ceases to be operative and his continued 'detention became illegal, being in breach of the provisions of Sections 8 to 12 of the MISA, and then the petitioner is either entitled to be released or he is entitled to ask for a relief for enforcing his statutory rights under Sections 8 to 12 of the MISA such as furnishing of grounds and making a reference to the Advisory Board. For this contention, the learned Counsel for the petitioner relies upon the observations of Mr. Justice Bhagwati in paras. 553, 555 and 556.

28. In reply to this contention, it is contended by the learned Advocate-General that when the petitioner asks for an order of release on the ground that certain statutory requirements have not been complied with, the petitioner in substance is seeking to enforce his right under Article 21 of the Constitution and, according to the learned Advocate-General, the bar created by the Presidential Proclamation cannot be by-passed by contending that the petitioner is not seeking to enforcing his right under Article 21 of the Constitution but that ha is seeking to enforce statutory rights. It is further contended that it was clearly laid down by the majority view in Shukla's case that enforcement of any statutory rights on the allegation that the petitioner's detention has become invalid because of non-compliance with any of the provisions of MISA has also been held to be barred by the Presidential Order dated June 27, 1975.

29. The basis of the contention of the petitioner that he has a locus to enforce his statutory rights lies in certain observations of Mr. Justice Bhagwati which again, in our view, are relied upon without reference to the context in which those observations have been made. The learned Judge has observed in para. 553 that 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(1) of the Constitution. An illustration is given of a detention whore no declaration has been made under Sub-sections (2) and (3) of Section 16A of MISA. This category would cover oases where orders of detention were made prior to June 25, 1975 because in such cases no declaration under Sub-section (2) or Sub-section (3) of Section 16A is contemplated. The learned Judge further observes that this would also cover rather exceptional cases where orders of detention have been made after June 25, 1975 without a declaration under Sub-section (2) or Sub-section (3) of Section 16A. The learned Judge has pointed out that Sections 8 to 12 would continue to apply to such cases and the detaining authority would be under 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, which was the plain requirement of Section 12(2) of MISA. The learned Judge has then posed a question whether in such a case if 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 his statutory obligation by filing a petition for a writ of mandamus. The learned Judge has observed that the answer to such a question must be : 'He can' because 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 the Presidential Order. It is pointed out that 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 he is not complaining of the absence of legal authority in the matter of his personal liberty. Similar are also the observations in para. 556 and the learned Judge has observed that if a petition or any other proceeding in Court seeks to enforce a positive legal right conferred by some legislation, it would not be barred by the Presidential Order. It was further observed that Article 21 does not have the effect of suspending enforcement of distinct and separate legal rights.

30. There can be no doubt that if these observations had stood by themselves, the contention raised on behalf of the petitioner would have needed serious consideration. But if -we read these observations in the light of the observations of Mr. Justice Bhagwati in a later part of para. 556, these observations are a complete answer to the petitioner's contention.

31. We might first consider the contention that the petitioner is entitled to challenge the declaration made under Section 16A(3) of the MISA. Firstly, the contention overlooks the express provisions in Section 16A(9) of the MISA. Clause (a) of Section 16A [9) is a total bar prohibiting disclosure or communication of any ground, information or material on which an order of detention is made or purported to be under Section 3 of the MISA against any person in respect of whom a declaration is made under Sub-section (2) or Sub-section (3) or grounds or material or information relating to 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. The contention of the petitioner is that the declaration is liable to be challenged on the ground that it was made without application of mind or for a collateral purpose or vitiated by mala fides. If such an averment is made, it is difficult to appreciate how the truth or otherwise of such an averment can be ascertained without making an enquiry. Obviously, an allegation relating to non-application of mind or mala fides or action taken for an ulterior motive cannot be accepted without an enquiry. The circumstances which will go to establish the case of the petitioner on these grounds can, if we may say so, be never apparent on the declaration itself. Now, if there is a total prohibition in the matter of communication or disclosure of the grounds on which a declaration is made under Section 16A(3) and in Clause (b) of Section 16A (9) it is further made clear that even a detenu will not be entitled to any such information, it is difficult to see how a detenu can call upon a Court to proceed to enquire into an allegation of mala fides or non-application of mind in the matter of making the declaration under Section 10A(3) of the Act.

32. We may refer to the observations of the learned Chief Justice where with reference to the provisions of Section 16A(9) it was observed that the Court cannot insist on the production of the file or hold that the case of the detenu stands unrebutted by reason of non-disclosure of material and to hold otherwise would be to induce reckless averments of mala fides to force production of the files which is forbidden by law. We may also refer to the observations of Beg J. in para. 348 where ha has observed (p. 1308):

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 proceedings under Article 226 of the Constitution.

Mr. Justice Chandrachud has observed in para. 482 (p. 1845):

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.

Mr. Justice Bhagwati in para. 572 has pointed out that the rule enacted in Sub-section (9)(a) of Section 16A bears close analogy to a rule of conclusive presumption and it must be regarded as a genuine rule of evidence.

33. With these observations of the learned Judges who constituted the majority, it is difficult to see how a challenge to the declaration under Section 16A(3) of the MISA can be entertained at the instance of the petitioner.

34. The petitioner's further contention that he is entitled to separately enforce his statutory rights, whatever they may be, must also be rejected. The majority view in Shukla'a case is that Article 21 is the sole repository of the right to life and personal liberty against the State. When a detenu seeks to enforce what ho terms as his separate legal rights, and when he asks for an order of release on the ground that a statutory right has been infringed, there can be no doubt that he will still be enforcing his right to personal liberty under Article 21 of the Constitution of India. In view of the majority view in Shukla's case, this proposition appears now to be well settled. We have merely to refer to the observations of the learned Chief Justice in paras. 42, 44, 78 and 100. It is observed by the learned Chief Justice in para. 42 that any allegation that the orders are not under that law (MISA) will not rob the orders of the protective umbrella of Article 359 and 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. In para. 44 it is observed as follows (p. 1227):

.The submission of the respondents that a person in detention can come to a court of law in spite of the Presidential Order under Article 359(1) and contend that a habeas corpus should be issued for his release or that the Executive should answer the detenu's challenge that the Act complained of is without authority of law or the challenge of the detenu that the provisions of the legislative Act under which the detention has been made have not been complied with are all rooted in the enforcement of fundamental rights to liberty under Article 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.

The position is further clarified in para. 78 where it is observed (p. 1233):

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 enforcing his fundamental right to personal liberty by contending that the Executive is depriving him of his personal liberty not according to 'procedure established by law'.

In para. 100 it was later pointed out that the obligation of the Executive to act in accordance with the Act, that is, MISA, is an obligation as laid down in Article 21, and if such an obligation is not performed, the violation is of Article 21 and it will mean that the right of the person affected will be a violation of fundamental right.

35. Beg J. has dealt with this position in para. 254. After referring to the procedure for the deprivation as well as enforcement of a right of personal freedom which is governed partly by the Constitution and partly by ordinary statutes and both of which fall within the purview of procedure, the learned Judge pointed out that Article 21 of the Constitution guarantees, though the guarantee is negatively framed, that 'No parson shall be deprived of his life or personal liberty except according to procedure established by law.' The learned Judge further observed (p. 1285):

.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 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.

These observations will, therefore, show that even the enforcement of a statutory right, the purpose of which is ultimately to enforce the right of personal liberty under Article 21, is barred.

36. The position is made very clear in the judgment of Mr. Justice Bhagwati where in para. 524 he observes (p. 1363):

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 al 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.

Negativing the argument that even though the Presidential Order debarred the enforcement of the fundamental right under Article 21 and that it did not deprive the enforcement of the rule of law, which in the present case, on the argument of the learned Counsel also included the statutory rights under the different provisions of MISA, it was pointed out by Bhagwati J. that it will be meaningless and futile for the Constitution makers to have imposed a limitation in regard to the enforcement of the right of personal liberty guaranteed by Article 21 if the detenu could with immunity disregard such limitation and fall back upon the right of personal liberty based on the rule of law.

37. Coming now to the observations in paras. 328, 555 and 556 in the judgment of Mr. Justice Bhagwati, we have already pointed out earlier that the observations relied upon cannot be read out of context and we need only refer to the later part of the observations in para. 556. The observations are as follows (p. 1383):

.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.

Therefore, all that was said with regard to statutory rights in the earlier paras. 558 and 555 cannot be of any assistance to the petitioner because the foamed Judge has held that since Article 21 is the sole repository of the right of personal liberty, a challenge to the detention even on the ground that it is not in accordance with the Act, is prohibited in view of the Presidential Order dated June 27, 1975.

38. Mr. Rane, however, placed heavy reliance on the observations of Mr. Justice Chandrachud in the conclusions which are reached by him in para. 491. Earlier Chandrachud J. had clearly stated one of his conclusions to be that the Presidential Order deprived the person of his locus standi to move any Court, be it the Supreme Court or the High Court, for the enforcement of his fundamental rights which are mentioned in the Presidential Order and that whether or not Article 21 of the Constitution is a sole repository of the right to personal liberty in a petition filed in the High Court under Article 226 of the Constitution for the release of a person detained under the MISA, no relief by way of releasing the detenu can be granted because no person has the legal capacity to move any Court to ask for such a relief and the Presidential Order takes away such legal capacity by including Article 21 within it. However, conclusion No. (7) is stated by the learned Judge thus (p. 1848):

(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.

(Italics ours.)

It is on the underlined portion that heavy reliance is kept in support of the proposition that the petitioner had a right to have his detention considered by the Advisory Board and that right could be enforced and the petitioner was entitled to ask for a writ of mandamus and that the enforcement of such a right was not barred by the Presidential Order. Emphasis was sought to be placed on the words 'relief other or less than the release of the detenu'. These observations were sought to be construed as moaning that in case the detenu does not ask for a relief of release, then the petition will not be barred. If such a construction is placed on these words in conclusion No. (7), it will in our view be contrary to the observations made by Mr. Justice Chandrachud in the earlier part of the judgment.

39. An argument was advanced before the Supreme Court that in the High Courts, the petitioners had really asserted their non-fundamental rights and, therefore, the High Courts had jurisdiction to issue appropriate writs or directions upholding those rights in spite of the Presidential Order. This contention was negatived by Chandrachud J. in para 465 with the following observations (p. 1839):

.This argument cannot be accepted because the entire claim of the respondents is that the orders 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 81 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.

These observations, in our view, unambiguously indicate that even in a case where detention is challenged as being in violation of the provisions of MISA, it will still amount to enforcement of the fundamental right under Article 21 and such a contention cannot be allowed to be raised in view of the Presidential Order. To the same effect are later observations in para. 472. Distinguishing the earlier Presidential Orders dated November 16,1974 and December 23, 1974, the learned Judge has observed as follows (p. 1842):

.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 which 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 been fulfilled.

In our view, conclusion No. (7) has to be read in the light of the earlier discussion made by Mi1. Justice Chandrachud and in view of the very positive observations that even the onforc9ment of any statutory right or a challenge that the detenu has been detained otherwise than in accordance with the procedural provisions of MISA, will still amount to enforcement of the fundamental right under Article 21, it will not be possible for us to read the latter part of the conclusion No. (7) as holding anything contrary to the several observations made in the earlier paragraphs of the judgment of Chandrachud J. We are, therefore, unable to hold on the basis of the observations in conclusion No. (7) that Mr. Justice Chandrachud has laid it down as law that enforcement of a statutory right is not barred by the Presidential Order. In any case, the contention that a statutory right, as contended, can be still enforced must be rejected in view of the observations of the learned Chief Justice, Beg J. and Bhagwati J.

39. There is, therefore, no substance in the contention that the petitioner is entitled to challenge the declaration made under Section 16A(3) of the MISA and he is further entitled to have his case considered by an Advisory Board or further that since the reference to the Advisory Board must be deemed not to have been made within the prescribed period, he is entitled to an order of release.

40. That brings us to another challenge to the declaration made by the District Magistrate canvassed on behalf of the petitioner. It was contended that there are in force two Proclamations of Emergency. The first Proclamation of Emergency under Article 352(1) is of December 3, 1971 and the second Proclamation is of June 25, 1975. It is argued that the District Magistrate when he made the declaration under Section 16A(3) of the MISA has merely stated in the material part that 'it is necessary to detain Shri Bajirao Baliram Mali of Dhulia for effectively dealing with Emergency referred to in the said Section 16A'. The contention is that on the face of this declaration, it is not apparent as to which emergency the District Magistrate had in view and, therefore, the declaration is liable to be struck down with the further consequential result that the continued detention of the petitioner would become bad.

41. In our view, this argument is baaed on a misapprehension that the provisions of Article 352(1) contemplate two Emergencies. Article 352(1) reads as follows:

If the President is satisfied that a grave emergency exists whereby the security of India or any part of the territory thereof is threatened, whether by war or external aggression of internal disturbance, he may, by Proclamation, make a declaration to that effect.

Now Section 16A(1) of the MISA is an overriding provision which provides that the provisions of Section 16A will have effect during the period of operation of the Proclamation of Emergency issued under Clause (1) of Article 352 of the Constitution on December 3, 1971 or the Proclamation of Emergency issued under that clause on June 25, 1975 or for a period of twelve months from June 25, 1975 whichever period is the shortest. The period has now been extended to twenty-four months. Now, Sub-section (2) of Section 16A provides for a review of cases of certain kinds of detenus for the purpose of determining whether detention of that person is necessary for dealing effectively with the emergency in respect of which both the Proclamations have been issued and such emergency has been referred to in Section 16A as only 'the emergency'. While providing that the case of every person against whom an order of detention is made under the Act on or after June 25,1975 but before the commencement of Section 16A, the commencement date being June 29, 1975, shall, unless such parson 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 parson under the Act is necessary for dealing effectively with the emergency in respect of which the Proclamations referred to in Sub-section (1) have been issued (thereafter in Section 16A referred to as 'the emergency'), it is farther provided that if on such review the appropriate Government is satisfied that it is necessary to detain such parson for effectively dealing with the emergency, the Government may make a declaration to that effect and communicate a copy of the declaration to the person concerned. Having referred in Section 16A (2) to the emergency in respect of which both the Proclamations have been issued as 'the emergency' the Parliament has gone on to use the words 'the emergency' in Sub-section (3). It is, therefore, clear that neither the provisions of Article 352(1) nor the provisions of Section 16A contemplate two emergencies, and merely because there are two Proclamations, it does not mean that there are two emergencies as such a concept of mere than one emergency is not contemplated by Article 352(1) of the Constitution of India.

42. The learned Chief Justice of India after considering the effect of Article 359(1) has clearly observed in para. 38 in Shukla's case that Article 359(1) makes no distinction between the threat to the security of India by war or external aggression on one hand and throat to the security of India by internal disturbance on the other and in fact, both situations are covered by the expression 'grave emergency'. The came position is clarified by Mr. Justice Beg in para. 337 in which he has observed (p. 1805):

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,

Mr. Justice Bhagwati has also reiterated the same position in para. 507 where he has observed (p. 1355):

.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.

It is, therefore, not contemplated either by Article 352(1) of the Constitution or Section 16A(3) of the MISA that while making a declaration under Section 16A(3) of the MISA, it is necessary for the detaining authority to specify which declaration of emergency he had in view. The emergency is declared because the security of India is threatened. The causes of the throat may be either war or external aggression or internal disturbance. But when the emergency is referred to in Section 16A, that is ultimately an emergency whereby the security of India is threatened. It is for dealing with such emergency whereby the security of India is threatened that the powers under Section 16A(3) of the MISA have to be exercised. An attack on the declaration under Section 16A(3) of MISA on the ground that it does not specify which of the two Proclamations the District Magistrate had in view, cannot, therefore, be entertained.

43. These were the only contentions which were raised by Mr. Rane appearing on behalf of the petitioner in Bajirao's case.

44. Since these questions were also relevant for the decision of another petition of a detenu Shri Padmakar Samant in Criminal Application 1802 of 1975, we also heard him. It is his contention that the decision in Shukla's case is a decision of a Bench of five Judges out of whom four formed the majority and that decision cannot override the view which is taken by the Supreme Court in the case of Ram Manohar and in Dist. Collector, Hyderabad v. Ibrahim and Co. : [1970]3SCR498 which was a decision of a Bench of six Judges. The detenu wanted to canvass before us the propositions as laid down by the minority judgment of Mr. Justice Khanna and he wanted to contend that the petition of a detenu challenging the detention should still be decided in accordance with the law laid down in Makhan Singh's case. The propositions which are sought to be canvassed are, in our view, obviously untenable. The law with regard to the effect of the Presidential Order and the declaration under Article 359(1) is expressly the subject-matter of the decision in Shukla's case and the majority view in that decision is binding on us.

45. In view which we have taken, we must hold that the petitioner Shri Bajirao Baliram Mali is not entitled to challenge the detention on the grounds raised by him and the petition must, therefore, be rejected.

46. Before we part with the case, we must mention that Mr. Rane appeared amicus curiae in this petition and ho spared no pains to canvass all possible points that could be urged in the circumstances of the case. We must express our thanks to him and to the learned Advocate-General for the assistance rendered to the Court in the case.

47. Rule discharged.


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