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P. Venkateseshamma Vs. the State Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition Nos. 3306, 3361, 3374, 3381, 3444, 3445 and 3642 of 1975
Judge
Reported inAIR1976AP1
ActsConstitution of India - Articles 13, 13(2), 14, 15, 19, 21, 22, 123, 123(3), 226, 352, 359, 359(1) and 368; Maintenance of Internal Security (Second Amendment) Ordinance, 1975; Maintenance of Internal Security Act; Andhra Pradesh Revenue Recovery Act, 1864 - Sections 38, 40, 48 and 49
AppellantP. Venkateseshamma
RespondentThe State Andhra Pradesh and ors.
Appellant AdvocateK.G. Kannabhiraman, Adv., ;P.A. Chowdary, Adv. for ;A. Panduranga Rao, Adv., ;K. Raghava Rao and ;C. Padmanabhareddy, Advs.
Respondent AdvocateAdv. General and ;C. Obulpathi Chowdary for Public Prosecutor
Excerpt:
constitution - maintainability - articles 13, 13 (2), 14, 15, 19, 21, 22, 123, 123 (3), 226, 352, 359 (1) and 368 of constitution of india, maintenance of internal security (second amendment) ordinance, 1975, maintenance of internal security act and sections 38, 40, 48, and 49 of andhra pradesh revenue recovery act, 1864 - maintainability of writ petitions for release under article 226 during emergency under article 352 came for consideration - during emergency president suspended rights under articles 14, 21 and 22 through proclamation - proclamation of emergency under article 352 enjoys immunity from attack in court - petitioner cannot question validity of emergency imposed under article 352 - held, writ petitions had no merit and liable to be dismissed. - - and whereas parliament.....madhava reddy, j. 1. the maintainability of these petitions under art. 226 of the constitution of india during the period in which proclamation of emergency under article 352 and the declaration of the president of india under cl. (1) of article 359 is in force and the validity of the amendments effected in the maintenance of internal security act 1971, by the two amending ordinances of 1975 arise for consideration in these writ petitions. having regard to the general importance of these questions and the far reaching consequences of these amendments these petitions have been referred to a full bench. 2. the first of these writ petitions is for the release of an advocate of this court, sri p. venkateswarlu, who was arrested and detailed under the provisions of the maintenance of internal.....
Judgment:

Madhava Reddy, J.

1. The maintainability of these petitions under Art. 226 of the Constitution of India during the period in which proclamation of Emergency under Article 352 and the declaration of the President of India under cl. (1) of Article 359 is in force and the validity of the amendments effected in the Maintenance of Internal Security Act 1971, by the two Amending Ordinances of 1975 arise for consideration in these writ petitions. Having regard to the general importance of these questions and the far reaching consequences of these amendments these petitions have been referred to a Full Bench.

2. The first of these writ petitions is for the release of an advocate of this Court, Sri P. Venkateswarlu, who was arrested and detailed under the provisions of the Maintenance of Internal Security Act, 1971 hereinafter referred to the 'Principal Act'.

3. Sri P. Venkateswarlu was arrested on the intervening night of 25/26th June, 1975 at 1-30 A.M. under Section 3(1)(a) of the Maintenance of Internal Security Act, 1971. This writ petition was moved on the morning of his arrest along with a petition W.P.M.P. No. 5081 of 1975 praying for a direction to the State of Andhra Pradesh the Inspector General of Police, Andhra Pradesh and the Commissioner of Police, Hyderabad City, the respondents herein, to permit him to attend to his work between 10-00 A.M. and 5-00 P.M. pending the disposal of the Writ Petition.

4. It was alleged that Sri P. Venkateswarlu was defending 'the accused who have been implicated in what is called by the respondents as 'Naxalite Movement'. He has filed petitions for the issue of a Writ of Habeas Corpus for the release of some of them alleging that the respondents were torturing the arrested persons and the High Court was pleased to order the Inspector General of Police to file a counter with regard to those allegations. It is the case of the petitioner that as a sequel to this Sri P. Venkateswarlu was arrested was arrested along with eleven others, who are all members of the Struggle Committee formed to save the lives of Bhoomaiah and Gista Gowd whose petition questioning the execution of the death sentence passed against him is pending before the Court. Sri P. Venkateswarlu, who is a member of that Committee and Conveyor of the Civil Liberties Committee had convened a national convention of all the opposite parties to be held on 6th July, 1975 was arrested in order to prevent him from exercising his freedom and liberty in furtherance of a public cause. It is alleged that in these circumstances the detention of the petitioner is mala file and a colourable exercise of power.

5. As it was also asserted that no grounds of fact existed and were placed before the detaining authority by the time Sri P. Venkateswarlu was arrested and detailed, and as the learned Public Prosecutor was present in the Court to take notice of the petition vehemently asserted that the allegation was not true, the Court directed the Public Prosecutor to furnish a copy of the grounds of detention for the perusal of the Court the next day. The grounds of detention were accordingly placed before the Court. By the time the matter came up before the Court on 1st July, 1975 to which date the petition was adjourned, the President of India issued on 27-6-1975 a proclamation of emergency under Article 352 of the Constitution of India. The text of the proclamation is as follows:---

'In exercise of the powers conferred by clause (one), Article 352 of the Constitution, I. Fakruddin Ali Ahmed, President of India, by the Proclamation declare that a grave emergency exists, whereby the security of India is threatened by internal disturbances.'

6. On 30-6-1975, the President in exercise of the powers conferred on him by Clause (1) of Article 124 of the Constitution proclamated an Ordinance called 'the Maintenance of Internal Security (Amendment) Ordinance (1975) hereinafter referred to as the 'First Amendment Ordinance' under which certain provisions of the Principal Acts were to have effect subject to the amendments specified in the Ordinance and certain new provisions were either substituted or added in the Principal Act. The First Amendment Ordinance reads as follows:--

'The Maintenance of Internal Security (Amendment) Ordinance (1975).

Promulgated by the President in the 26th Year of the Republic of India.

An Ordinance further to amend the Maintenance of Internal Security Act, 1971.

Whereas a grave emergency exists whereby the security of India is threatened by external aggression and internal disturbance;

And whereas Parliament is not in Session and the Present is satisfied that circumstances exist which render it necessary for him to take immediate action.

Now, therefore in exercise of the powers conferred by Clause (1) of Article 123 of the Constitution, the President is pleased to promulgate the following Ordinance:

MISA AMENDMENT ORDINANCE:

1. (1) This Ordinance may be called the Maintenance of Internal Security (Amendment) Ordinance (1975).

(2) It shall come into force at once.

2. During the period of operation of the Ordinance, the Maintenance of Internal Security Act, 1971 (hereinafter referred to as the Principal Act) shall have effect subject to the amendments specified in Sections 3, 4 and 5.

3. In Section 14 of the Principal Act, the sub-section (2) the following sub-section shall be substituted namely:

(2) The revocation of a detention order shall not bar the making of another detention order under section 3 against the same person.

4. In Section 15 of the Principal Act after sub-section (5) the ft sub-section shall be inserted namely :

'(6) Notwithstanding anything contained in any other law and save as otherwise provided in this section, no person against whom a detention order made under this Act is in force shall be released whether on bail bond or otherwise.' 5. After Section 16 of the Principal Act, the following section shall be inserted, namely :

'16-A. (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 the cl 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 12 months from the 25th day of June, 1975 whichever period is the shortest.

(2) The case of every person against whom an order of detention was made on or after the 25th day of June, 1975 but before the commencement of the Maintenance of Internal Security (Amendment) Ordinance (1975) shall unless such person is sooner released from detention, be reviewed within 15 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 effective with Emergency in respect 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 after the commencement of the Maintenance of Internal Security (Amendment) Ordinance (1975) 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, as the case may be, the State Government or 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.'

7. The President of India issued another proclamation under Clause (10 of Art 359 of the Constitution of India on 1st July, 1975 which reads as follows:---

'EMERGENCY' - PRESIDENT'S ORDER REGARDING SUSPENSION OF THE RIGHTS UNDER ARTICLES 14, 21, AND 22 OF THE CONSTITUTION OF INDIA, (G.O. Rt. No.1650 General Administration (SC. D) 1st July, 1975)

The following order of the President of India, is republished:---

'G.S.R. 361 (E):--- 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. Articles 21 and 22 of the Constitution and all proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the proclamation of emergency made under clause (1) of Article 352 of the Constitution on the third 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.'

8. At the adjourned date of hearing of the case the respondents stated that the grounds of detention were not served on the detenu who was detained under the provisions of the Principal Act and they took the stand that they are not required to serve the grounds of detention having regard to the declaration of Emergency and the subsequent change in law. It was also pointed out that the detenu's right to move the Court for enforcement of any of the rights conferred by Articles 14, 19, 21 and 22 of the Constitution was taken away and on that basis a preliminary objection to the maintainability of the Writ Petition in the altered circumstances was raised.

9. Mr. Kannabhiraman, learned counsel for the petitioner, took time and raised additional grounds questioning the validity of the declaration under Cl. (1) of Article 359 of the Constitution and the validity of the First Amendment Ordinance in general and in particular clause (5) thereof by which Section 16-A was introduced in the Principal Act. It is contended that this Amendment Ordinance is ultra vires of the powers vested in the President under Article 123 of the Constitution. This amendment 'tampers with the basic structures or the forms of the Constitution and, therefore, void. It is also violative of the right conferred on a person by Article 226 of the Constitution for, in effect the right of the detenu to move the Court is taken away. It was also contended therein that even the provisions of the amended ordinance have not been complied with in detaining the detenu and hence the detention was illegal and void.

10. In the counter-affidavit filed on behalf of the respondents on 8th July, 1975 allegations of mala fides and exercise of the power in arresting and detaining Sri P. Venkateswarlu being in colourable (exercise) was denied. It was further stated that the detention of the petitioner had nothing to do with his entering appearance in Courts for certain accused or with any of his activities relating to the convening of a meeting for protesting against the execution of the death sentences of Bhoomaiah and Kista Gowd. The exercise of the power of detention was said to be based on the satisfaction reached by the Commissioner of Police that Sri P. Venkateswarlu was acting in a manner prejudicial to the maintenance of public order and that his detention was necessary particularly during the Emergency declared by the President of India on 25-6-1975. In view of the declaration, made by the President under clause (1) of Article 359 suspending the right of a person to move for the enforcement of the rights conferred by Articles 14, 21 and 22 the writ petition was not maintainable. The First Amendment Ordinance is not invalid on any ground and that under the provisions of the Principal Act as amended by the Ordinance, the respondents were bound to serve the grounds for detention either during the of review or during the period when the declaration under section 16-A is in force.

It was also contended that Sec. 16-A does not amend any provisions of the Constitution, much less does it alter its basic structure or form. In any event, the petitioner has no right to move the Court for his release so long as the declaration of the President under Clause (1) of the Article 359 of the Constitution suspending the right move the court for enforcement of the rights conferred under Article 14, 21 and 22 lasts.

11. Writ Petition No. 3374 of 1975 was filed for the release of Sri Gottipati Murali Mohan, another Advocate, who was also arrested and detained in the Central Jail, Rajahmundry on 25th June, 1975 under Section 3 (1) (a) (ii) of the Principal Act. Writ Petition No. 3642 of 1975 also is a petition for a writ of Habeas Corpus for the release of Tarimella Ramadoss Reddy an advocate practising at Anantapur who has been detained by an order of the District Magistrate, Anantapur dated 26-6-1975 made under Section 3 (1) (a) (ii) and (iii) of the Maintenance of Internal Security Act, 1971. These writ petitions also raise the same grounds as the first one.

12. By the time these writ petitions came up before the Full Bench the Principal Act was further amended by the President of India in exercise of the powers conferred on him under Article 123(3) of the Constitution, on 15th July, 1975 by issuing the Maintenance of Internal Security (2nd Amendment) Ordinance (1975) hereinafter referred to as the Second Amendment Ordinance. In particular this Ordinance declares that Sections 8 to 12 of the Principal Act shall not apply in the case of persons detained under a detention order to which sub-section (2) of Section 16-A of the Act applied. A new section was also introduced declaring that no person detained under the Act shall have any right to personal liberty by virtue of natural law or common law if any. The Second Amendment Ordinance reads as follows:

'1. (1) This Ordinance may be called the Maintenance of Internal Security (Second Amendment) Ordinance (1975).

(2) Section 6 shall be deemed to have come into force on the 25th day of June, 1975 and the remaining provisions of this Ordinance shall be deemed to have come into force on 29th day of June, 1975.

2. In Section 4 of the Maintenance of Internal Security Act, 1971 (hereinafter referred to as the Principal Act) for the words and figures 'Code of Criminal Procedure, 1898' the words and figures 'Code of Criminal Procedure, 1973' shall be substituted.

3. In Section 7 of the Principal Act --- (a) In clause (A) for sub-section (1) for the words and figures 'Presidency Magistrate or a Magistrate of the First Class having jurisdiction in the place where the said person ordinarily resides and thereupon the provisions of Sections 87, 88 and 89 of the 'Code of Criminal Procedure, 1898' the words, figures and brackets 'Metropolitan Magistrate or a Judicial Magistrate of the First Class having jurisdiction in the place where the said person ordinarily resides and thereupon the provisions of Sections 82 - 86 (both inclusive) of the Code of Criminal Procedure, 1973, shall be substituted.

(b) In sub-section (2) for the words and figures 'Code of Criminal Procedure, 1898' the words and figures 'Code of Criminal Procedure, 1973' shall be substituted.

4. In Section 15 of the Principal Act after sub-section (3) the following sub-section shall be inserted namely: (3-A). If the appropriate Government has reason to believe that any person who has failed to surrender himself in the manner specified in sub-section (3) has absconded or is concealing himself that Government may make a report in writing of the fact to a Metropolitan Magistrate or a Judicial Magistrate of the First Class having in the place where the said person ordinarily resides and thereupon the provisions of Sections 82 - 86 (both inclusive) of the Code of Criminal Procedure, 1973 shall apply in relation to a person who has absconded or is concealing himself so that a warrant issued by the Magistrate cannot be executed.

5. In Section 16-A of the Principal Act inserted therein by the Maintenance of Internal Security (Amendment) Ordinance (1975) :---

(a) In sub-section (2) for the words 'every person against whom an order of detention was made' the words and brackets 'Every person (including a foreigner) against whom an order of detention was made under this Act' shall be substituted.

(b) In sub-section (3) after the words 'An order of detention under this Act against any person' the brackets and words '(including a foreigner)' shall be inserted.

(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 in that sub-section :--

(i) Sections 8 to 12 shall not apply and

(ii) Sections 13 shall apply subject to the modification that the words and figures which has been confirmed under Section 12 shall be omitted.

(7) In the case of every person detained under a detention order to which the provision 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 the sub-sections (3) and (4) thereof the following sub-section shall be substituted namely:--

(3) When any 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) Sections 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.

6. Section 18 of the Principal Act shall be renumbered as Section 19 thereof and before that section as so renumbered the following section shall be inserted namely:--

Exclusion of 18. No person (including a Foreigner) detained under this Act shall have

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

Natural law

Rights, if any.

7. Anything done or any action taken under the Principal Act as amended by the Maintenance of Internal Security (Amendment) Ordinance (1975) shall be deemed to have been done or taken under the Principal Act as amended by that Ordinance and this Ordinance.'

13. The validity of this Ordinance also is impugned on the same grounds as the first one. It was also faintly urged that the proclamation of Emergency under Art 352 was not warranted and that the declaration under clause (1) of Article 359 is invalid.

14. On behalf of the respondents the petitioners' right to move the Court and the maintainability of all these petitions is challenged.

15. The preliminary objection raised to the maintainability of these writ petitions require the consideration of the following questions :

(1) Whether the proclamation of Emergency under Cl. (1) of Article 352 of the Constitution can be called in question in a Court of Law?

(2) Whether the declaration made by the President under Clause (1) of Article 359 of the Constitution suspending the right to move a Court for enforcement of the rights conferred by Article 14, 21 and 22 of the Constitution can be challenged in any court of law?

(3) Whether the Maintenance of Internal Security (Amendment) Ordinance (1975) is valid in law and whether its validity can be questioned during the period of Emergency when the declaration under cl. (1) of Article 359 of the Constitution is in force?

(4) Whether the Maintenance of Internal Security (Amendment) Ordinance (1975) is valid in law and can be questioned during the period of Emergency when the declaration under clause (1) of Article 359 of the Constitution is in force?

(5) Whether, during the continuance of the Emergency and declaration under cl. (1) of Article 359, the High Court is precluded from entertaining any petition complaining of illegal arrest and detention and from directing release of such person?

16. Article 352 of the Constitution of India confers powers on the President to declare that a grave Emergency exists whereby the security of India or any art of the territory thereof is threatened by war or external aggression or internal disturbances. Such a declaration may be made by proclamation upon his satisfaction to that effect. Article 352, in so far as it is relevant for the present purpose reads as follows:--

'352. (1) If the President is satisfied that a grave Emergency exists whereby the security of India or of any part of the territory thereof is threatened, 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................that period it has been approved by resolutions 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 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 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) 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 disturbances may be made before the actual aggression or disturbance if the President is satisfied that there is imminent danger thereof.'

Upon such a proclamation being made, the provisions of Article 19 of the Constitution stand suspended by virtue of Article 358 of the Constitution. Article 358 reads 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 respect things done or omitted to be done before the law so ceases to have effect.'

Under clause (1) of Article 359, further power to suspend the enforcement of all or any of the rights conferred by Part III of the Constitution during the period of Emergency is vested in the President by making a declaration to that effect. Article 359 reads as follows:--

'359. (1) While 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.

(2) An order made as aforesaid may extend to the whole or any part f 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.'

17. The Emergency itself may be declared whenever the security of India or any part thereof is threatened either by war or external aggression or by internal disturbances. Thus, the power to declare an Emergency expressly conferred by Art. 352, when exercised, automatically results in the suspension of the provisions of Art. 19 by virtue of what is contained in Article 359. Having regard to the circumstances prevailing within the territory of India, the President may suspend the enforcement of the rights conferred by Part III of the Constitution or any of the rights mentioned therein. If the President chooses to make a declaration under Article 359(1) the right to seek enforcement of such other rights as are conferred by Part III of the Constitution and which are referred to in the declaration made under Art. 359(1) is also taken away either for the whole of the period of Emergency or such shorter period as may be specified in the declaration. But a proclamation to the effect that a grave Emergency exists whereby the security of India or any part thereof is threatened may be made by the President upon his own satisfaction. Whether or not there is a real emergency and whether the President was justified in making a proclamation under Article 352, is matter which is not within the purview of the Court. Any proclamation of Emergency made by the President under Article 352 (1) is required to be laid under Art. 352(2)(b) before each House of Parliament and in view of clause (c) thereof, unless approved by resolution of both Houses of Parliament, it ceases to operate at the expiration of two months.

A declaration made by the President under clause (1) of the Art. 359 is also required to be laid, as soon as may be, before each House of Parliament. The declaration under Article 359(1) lapses on the expiration of the period of Emergency or such shorter period as is specified therein. It cannot outlive the emergency. The intention of the Constitution-makers is thus evident that the right to move a court for enforcement of the rights conferred by Part III should in no case last a minute beyond the period of Emergency itself. In Bhuth Nath v. State of West Bengal, : 1974CriLJ690 where it was contended that the 'the detention of the petitioner therein was arbitrary and may continue indefinitely if the proclamation of emergency becomes a constant fact of constitutional life and must therefore be regarded as unconstitutional.', the Supreme Court declared.

'We have to reject summarily the last submission as falling outside the orbit of judicial control and wandering into the para-political sector. It was argued that there was no real emergency and yet the Proclamation remained unrestricted with consequential peril to fundamental rights. In our view, this is a political, not justifiable issue and the appeal should be to the polls and not to the courts. The traditional view, sanctified largely by some American decisions, that political review, is not a constitutional taboo but a progrmatic response of the Court to the reality of the inadequacy to decide such issues and to the scheme of the Constitution which has assigned to each branch of Government in the larger sense a certain jurisdiction. X x x x

True, an emergency puts a broad blanket blind folding of the seven liberties of Article 19 and its baseless prolongation may devalue democracy. That is a political matter de hors our ken for the validity of the proclamation turns on the subjective satisfaction of the President that a grave emergency of the kind mentioned in Part XVIII or its imminent danger exists.'

It was further observed :

'But this large and sensitive debate about the Court's power hardly arises here because basically it is a matter least fit for adjudication by judicial methods and materials and clearly the onus of establishing the effective end of emergency and absence of any grounds whatever for the subjective satisfaction of the President heavy as it is, has hardly been discharged. Academic exercises in constitutional law are not for courts but jurists and we decline to hold the continuance of emergency void.'

In view of the above pronouncement of the Supreme Court, it is futile to contend before a court of law that the declaration of Emergency under Article 352 of the Constitution is unwarranted in the circumstances. The Proclamation of Emergency under Article 352 enjoys immunity from attack in a Court of law.

18. It was, next submitted that the declaration made by the President under Clause (1) of Article 359 could always be questioned as not warranted in the present situation of the country. Reliance for this contention was placed upon the judgment of the learned Chief Justice Ghulam Sarwar v. Union of India. : 1967CriLJ1204 . In that case, distinguishing what was stated in Mohan Chowdury v. Chief Commissioner, Union Territory of Tripura, : 1964CriLJ132 , the Court held that the validity of the President's order issued under article 359(1) of the Constitution could be questioned if it infringed the provisions of Article 14 of the Constitution. The position in this behalf however, was reconsidered in Mohd. Yaqub v. State of J & K, : 1968CriLJ977 by a later Constitution Bench of the Supreme Court comprising of seven Judges including Hidayatullah, j., who was a party to the earlier decision in Ghulam Sarwar v. Union of India, : 1967CriLJ1204 , and the Supreme Court observed at p. 768:--

'It will be seen from the terms of Article 359 that it gives categorical powers to the President during the period when a Proclamation of Emergency is in operation to suspend the enforcement of any of the fundamental rights conferred by Part III is for the President to decide the enforcement of which of the fundamental rights should be suspended during the operation of the Proclamation of Emergency. There is nothing in Art. 359 which in any way limits the power of the President to suspend the enforcement of any of the fundamental rights conferred by Part III. It is our mind quite clear that the President has the power to suspend the enforcement of any of the fundamental rights conferred by Part III and there is nothing thereunder which makes any distinction between one fundamental rights or another. As Article 359 stands, it seems to us, it clearly envisages that once a Proclamation of Emergency has been issued, the security of India or any part of the territory thereof may require that the President suspend the enforcement of any of the fundamental rights conferred by Part III. There is in our opinion no scope for inquiry into the question whether the fundamental rights the enforcement of which the President has suspended under Article 359 has anything to do with the security of India which is threatened whether by war or external aggression or internal disturbance, for cl 359 posits that it may be necessary for the President to suspend any of the fundamental rights in Part III for the sake of the security of India. There is thus a basic assumption in Article 359 that it may be necessary for the President to suspend the enforcement of any of the fundamental rights conferred by Part III in the interest of the security of India. If he considers that necessary, it is unnecessary to the face of the basic assumption to inquire whether enforcement of a particular fundamental rights suspended by the President has anything to do with the security of India, for that is implicit in Article 359. It follows therefore that it is open to the President to suspend the enforcement of any of the fundamental rights conferred by Part III by an order under cl 359 and this Article shows that wherever such suspension is made it is in the interest of the security of India and no further proof of it is necessary.'

The court then, dealing with the question whether an order made under Article 359 is a law made by a State within the meaning of Article 13(2) of the Constitution and has therefore to be tested under Part III of the Constitution held :

'If the order is a law within the meaning of Article 13(2), the result would be that though the order says that the enforcement of a particular fundamental right is suspended during the period of emergency the order can still be tested with the aid of Art. 13(2) on the anvil of the same fundamental right the enforcement of which it suspends. That would in our opinion, result in making Art. 359 completely nugatory, for then the enforcement of certain fundamental rights is suspended during the period of Emergency would have no meaning whatsoever. Therefore, applying the principle of harmonious construction we are of the opinion that an order passed under Article 359 cannot be law for the purpose of Article 13(2) assuming it to be law in its widest sense. It follows therefore that an order under cl 359 derived its force from Article 359 itself and takes effect in accordance with its tenor and cannot be affected by Article 13(2) and cannot be tested under any of the provisions of Part III of the Constitution which it suspends.

Repelling the contention that an order making an unjustified discrimination in suspending the right to move a court under Article 14 would be void of its inception and would be a still-born under which contention was upheld in Ghulam Sarwar v. Union of India, : 1967CriLJ1204 the Supreme Court in Mohd. Yaqub v. State of J & K : 1968CriLJ977 held :

'We must say with greatest respect that it is rather difficult to understand how an order under Article 359 which suspends the enforcement of a fundamental right can be tested under that very fundamental right. X x x x

x x x x x That would in our opinion be arguing in a circle and make Article 359 completely nugatory. It seems that the majority in Ghulam Sarwar's case : 1967CriLJ1204 was also conscious of the fact that the reasoning on which it came to the conclusion that an order made under Art 359 could be tested under Article 14, though it suspended that Article, was open to the criticism that it was an argument in a circle.'.

The leaned Judges then proceeded to observe that it was difficult to appreciate the reasoning and the distinction on which the decision in Ghulam Sarwar v. Union of India, : 1967CriLJ1204 (1967 Cri LJ 1204) was based, and held:

'It seems to us that if Article 359 is to have any meaning at all, and is not to be wiped out from the Constitution a order passed thereunder suspending a fundamental right cannot possibly be tested under that very fundamental right which it suspends. If that were permissible no order under Art. 359 could really tested. If Article 359 is not to be rendered nugatory, it must beheld that an order passed thereunder cannot be tested under the very fundamental right the enforcement of which it suspends. We must therefore respectfully differ from the view taken in Ghulam Sarwar's case : 1967CriLJ1204 and held that an order passed under Article 359(2) under that very fundamental right the enforcement of which it suspends.'

Hidayatullah, J., who was a concurrent party to the judgment in Ghulam Sarwar's case, : 1967CriLJ1204 'that the judgment of Subba Rao, C.J. in Ghulam Sarwar's case : 1967CriLJ1204 , had expressed itself somewhat unhappily on the point on which it had been overruled as the judgment then delivered.' But at the same time, he was of the view that the judgment in Mohd. Yaqub v. State of J & K, : 1968CriLJ977 also suffers from a width of language or the other direction. Be that as it may the Supreme Court of India has thus authoritatively laid down that a declaration made under Article 35(1) cannot be questioned on the ground that it violates any of the rights conferred by Part III or on the ground that there is no emergency. When the existence of Emergency itself cannot be questioned the power exercised under clause (1) of Article 359 cannot also be questioned on the ground that the emergency does not exist. Earlier, in Makhan Singh v. State of Punjab, : 1964CriLJ217 the Supreme Court dealing with the Presidential order of 3rd November, 1962 issued under Article 359(1) observed :

'The power conferred on the President by Article 359(1) is wide enough to enable him to make an order applicable to all part of the country and to all citizens and in respect of any of the rights conferred by Part III.'

Having regard to the above pronouncements of the Supreme Court it must be held that neither the proclamation of emergency under Article 352(1) of the Constitution nor the declaration of the President that the right to move courts for enforcement of any of the fundamental rights conferred by Part III of the Constitution is suspended, can be questioned in a Court of law. The proclamation of the President dated 25th June, 1975 issued under Art. 352 as well as the declaration of the President made under clause (1) of Article 359 on 30th June, 1975, therefore, immune from attack.

19. We may now turn to the principal contentions of the parties as to the invalidity of the Amending Ordinance and the maintainability of these petitions in view of the proclamation of Emergency under Article 352 of the Constitution and the declaration of the President suspending the right to enforce any of the rights conferred by Article 14, 21 and 22 of the Constitution.

20. The first three petitions which deal with detentions under the Maintenance of Internal Security Act, are preventive detention. The other petitions are in pursuance of warrants of arrest issued under Sections 48 and 49 of the Andhra Pradesh Revenue Recovery Act, the provisions of which are said to be violative of Article 19 and 21 of the Constitution. We will first address ourselves to the cases of preventive detention.

21. Articles 21 and 22 of the Constitution of India provide for protection against arrest and detention in a manner that does not admit of legal justification. Any law authorising preventive detention which violates the provisions of Articles 21 and 22 would be void in view of Article 13(2) of the Constitution. These articles lay down that no person shall be deprived of his personal liberty except according to the procedure established by law. Any law relating to preventive detention must in addition provide for communicating the grounds for detention and for affording the detenu the earliest opportunity of making a representation against the order. Under clause 7 of Article 22, the Parliament is empowered to make laws prescribing the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months without obtaining the opinion of the Advisory Board and also provide for the maximum period for which any person may be detained under such law.

The Maintenance of Internal Security Act, 1971 is one of the laws providing for preventive detention. It authorises the State and Central Governments to detain any person (including a foreigner) upon their satisfaction with respect to that person that with a view to preventing him from acting in any manner prejudicial to (i) Defence of India, the relations of India with foreign powers, or the security of India or (ii) the security of the State or maintenance of public order, or (iii) the maintenance of supplies and services essential to the community. At the same time it provides for various safeguards against arbitrary exercise of the power vested thereunder so that the law is not violative of fundamental rights guaranteed to a citizen under Article 14, 21 and 22 of the Constitution of India. The Act as it stood, prior to its amendment by the First Amendment Ordinance and the Second Amendment Ordinance which are impugned in them writ petitions inter alia provided for this power of detention being exercised by high officials of the State like District Magistrates, Additional District Magistrates specially empowered in this behalf by the State Government and Commissioner of Police upon their being satisfied with regard to the necessity of detaining a person to prevent him from acting in a prejudicial manner as specified in Section 3 (1) (a) and (b) of the Act. Sub-section (3) of Section 3 of the Act makes a further provision for reporting the fact of detention of a person to the Government forthwith along with such particulars as have a bearing on the matter. That order would be in force for not more than 12 days unless in the meantime it is upheld by the State Government.

A further safeguard is provided in Section 8 by making it obligatory for the detaining authority to communicate the grounds for detention, ordinarily within five days and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of detention. The State Government is required to report the fact of detention to the Central Government within seven days together with the grounds on which the order of detention is based. The detenu is required to be afforded the fullest opportunity of making a representation against the order to the appropriate Government.

22. Section 9 of the Act directs constitution of Advisory Boards comprising of persons who are qualified to be appointed as Judges of a High Court and the Chairman of such an Advisory Board is to be a person who is or has been a Judge of a High Court. The cases of all detenus are required to be placed before such an Advisory Board within 30 days from the date of the detention together with a representation made by the person detained and the report of the Officer who has ordered the detention. The Advisory Board is empowered to call for such further information as may be deemed necessary both from the Government and the person detained and if the detenu concerned desires to be heard, hear him and submit a report to the appropriate Government within ten weeks. The Advisory Board is empowered to submits its opinion as to whether or not there is sufficient cause for the detention of the person concerned. If the Advisory Bard opines that there is no sufficient cause for detention the appropriate Government is bound to revoke the detention order and cause the person to be released forthwith. In case of the detention order is confirmed, Section 13 of the Act stipulates 12 months as the maximum period of detention.

Among others sub-section (2) of Section 14 of the Act provides for making a fresh detention order under Section 3 on the revocation or expiry of the previous detention order only upon fresh facts having arisen after the revocation or the expiry of the earlier detention the order. Section 15 enables the appropriate Government to temporarily release the persons detained under the Act. In the case of the foreigners detained under the Act certain special provisions are made which it is not necessary to notice for the present purpose. Having regard to these several safeguards, the Maintenance of Internal Security Act which authorises preventive detention is bound to be not violative of any of the fundamental rights guaranteed under the Constitution of India and in particular Articles 14, 21 and 22. The two impugned Ordinances make extensive inroads into these safeguards which constitute the bulwark against the arbitrary exercise of the power of preventive detention vested in several authorities subordinate to the State and Central Governments.

23. Clause 2 of the First Amendment Ordinance declares that during the period of operation of this ordinance, Sections 3, 4 and 5 of Maintenance of Internal Security Act, 1971 shall have effect subject to the amendments specified in the Ordinance. As already noticed, Section 3 of the Act empowers certain persons to make orders of detention upon the satisfaction of certain authorities with respect to the matters mentioned in Section 3 (a) of the Act viz., that with a view to prevent such a person from acting in a manner prejudicial to the defence of India the relations of India with foreign powers or the security of India or the Security of the State or the maintenance of public order or the maintenance of supplies and services essential to the community, it is necessary to detain such a person. Section 4 of the Act provides for execution of the detention order and Section 5 vests the power to regulate the place and conditions of detention.

24. Amendment to Section 14 of the Principal Act effected by Clause 3 of the Second Amendment Ordinance constitutes sub-section (2) of the Section 14 as follows:--

'The revocation of detention order shall not bar the making of another detention order under Section 3 against the same person.'

Thus the bar imposed by sub-section (2) of Section 14 of the Principal Act against the detention of a person on the very same grounds after the expiry or revocation of the earlier detention order unless some fresh facts had arisen after the revocation or expiry of the earlier detention order no longer stands in the way of the Detaining Authority. The amended sub-section (2) empowers the detention of a person by a fresh detention order on the very same grounds. Section 15 empowers the appropriate Government to direct the release of the persons detained under the Act with or without imposing conditions. This power s taken away by the insertion of sub-section (6) in Section 15 of the Principal Act under the Second Amendment Ordinance which reads as follows;--

'(6) Notwithstanding anything contained in any other law and save as otherwise provided in this section, no person against whom a detention order made under this Act is in force shall be released whether on bail bond or otherwise.'

However justified the circumstances may be, no person can now be released on bail or otherwise so long as the detention order subsists. A major change in the Principal Act is introduced by the insertion of Section 16-A after Section 16. This new Section 16-A reads as follows:--

'16-A. (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 detention of the proclamation of Emergency issued under Clause (1) of the Article 352 of the Constitution on the 3rd day of December, 1971, or the proclamation of Emergency issued under that a clause on the 25th day of June, 1975 or a period of 12 months from the 25th day of June, 1975 whichever period is the shortest.

(2) The case of every person against whom an order of detention was made on or after 25th day of June, 1975, but before the commencement of the Maintenance of Internal Security (Amendment) Ordinance (1975), shall unless such person is sooner released from detention, be reviewed within 15 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 (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 :

Provided that where such dl is made by an officer, it shall be reviewed by the State Government to which such officer is subordinate within 15 days from the date of making 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 15 days. (4) The question whether the detention of any person in respect of whom a declaration has been made under sub-section (2) or sub-section (1) 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 reconsideration, 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-section (2), (3) or (4) the appropriate Government or officer considers it to be against the public interest to do otherwise, act on the basis of the information and materials in its or his possession without disclosing the facts or giving an opportunity to the person concerned.

(6) It shall not be necessary,

(a) to disclose to any person detained under a detention order to which the provisions of sub-section (2) apply, the grounds on which the order has been made during the period with which his came may be reviewed under that sub-section and when on such review a declaration has been made in respect of such person under that sub-section, also during the period when such declaration is in force.

(b) to disclose to any person detention under a detention order to which the provisions of sub-section (3) apply the grounds on which the order has been made during the period the declaration made in respect of such person under that sub-section is in force, and, accordingly such periods shall not be taken into account for the purposes of Section 8.

(7) in the case of every person detained under a detention order to which the provisions of sub-section (2) or sub-section (3) apply and in respect of whom a declaration has been made thereunder the period during which such declaration is in force shall not be taken into account for the purposes of computing the periods mentioned in Section 10 or Section 11.'

This provision overrides not only all the other provisions of the Act but also the rules of natural justice that have been held to govern matters relating to the detention of persons without trial for an extensive period. This provision is intended and is declared to be in operation and have effect only during the period of proclamation of Emergency issued under Clause (1) of Article 352 of the Constitution of India on 3-12-1971 or the Proclamation of Emergency issued under that clause on 25-6-1975 or a period of 12 months from 25-6-1975 whichever period is the shortest in view of sub-section (2) of Section 16-A which makes a special provision with respect to persons against whom an order of detention was made on or after 25th day of June, 1975, the case of such persons is required to be reviewed by the appropriate Government within a period of 15 days from the commencement of this Ordinance, viz., 25-6-1975. The review is for the purpose of determining whether the detention of such person under the Act is necessary for dealing effectively with the Emergency. If upon such a review, the appropriate Government is satisfied that it is necessary to detain such person for effectively dealing with the Emergency, the Government is empowered to make a declaration to that effect and communicate a copy of the declaration to the person concerned. Sub-section (2) of Section 16-A deals with persons who may be detained after the commencement of the First Amendment Ordinance. For continuing the detention of a person after the commencement of the Ordinance, all that is necessary for the appropriate Government is to make a declaration that it is necessary to detain such person for dealing effectively with the emergency and communicate a copy thereof to the person detained. With respect to the detenus arrested after 25-6-1975 but before the commencement of the Ordinance as well as the detenus detained after the commencement of the First Amendment Ordinance, sub-section (6) of Section 16-A wholly dispenses with the requirement of serving the grounds on which the order of detention is based both before a declaration contemplated by Section 2 or during the period when such a declaration is in force.

Thus it is no longer necessary for the detaining authorities to comply with the requirements of Section 8 of the Principal Act. The detention order which could have been made only subject to Section 8 would no longer be invalid merely because the grounds of detention are not served. It is enough if a declaration is made within 15 days of the commencement of the Ordinance, in case of persons detained prior to the Ordinance and in case of persons detained after the commencement of the Ordinance simultaneously with the order of detention, that the detention of the persons concerned is necessary for dealing with the Emergency. Further for the purpose of Sections 10 and 11 of the Principal Act viz., in the matter of reference to the Advisory Boards the period during which the declaration under S. 16-A (2) is in force is not required to be taken into account. In other words, it is no longer obligatory to refer the case for the consideration of the Advisory Boards within 30 days of the detention order so log as the Emergency continues. These provisions are in the teeth of the Article 22 of the Constitution which imposes an obligation upon the detaining authority to communicate to the detenu the grounds of detention as soon as may be and also to afford him the earliest opportunity of making a representation. The amendment Ordinance seeks to discharge the detaining authority from those several constitutional obligations. It wholly dispenses with the service of grounds. When grounds are not served the question of making a representation against them does not arise; nor is there any scope for consideration of the representation. The power to detain thus becomes a naked and arbitrary power vested in several persons serving the State and Central Governments. The power is wholly unbridled and unguided. There is no method or machinery provided to judge whether the satisfaction of the authorities with respect to any person that his detention is necessary with a view to prevent him from acting in a manner prejudicial to any of the matters referred to under Section 3 (a), is reached bona fide or mala fide and in fact whether the satisfaction is reached on relevant existing grounds or whether it is a colourable exercise of power with an ulterior motive. That this Amendment Ordinance offends the fundamental rights guaranteed to a citizen under Articles 14, 21 and 22 of the Constitution, is quite patent and would therefore be wholly void under Article 13(2) of the Constitution in the ordinary circumstances.

25. So too are the provisions of the Second Amendment Ordinance if at all they vest a much larger and wider power in the detaining authority and deprive the citizen of any vestige of protection against its arbitrary exercise.

26. The Second Amendment Ordinance was promulgated on 15-7-1975. Apart from formal amendments made by clause 5 in Section 16-A of the Principal Act which itself was introduced by the First Amendment Ordinance of 1975 by clause (6) of that Ordinance a new section was inserted as Section 18 and the existing Section 18 was renumbered as Section 19. The new Section 18 reads as follows:--

'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.'

Clause (7) of the 2nd Amendment Ordinance declares that

'anything done or any action taken under the principal Act as amended by the Maintenance of Internal Security (Amendment) Ordinance (1975) shall be deemed to have been done or taken under the Principal Act as amended by that Ordinance.'

The new Section 18 which declares that the person detained under this Act shall have any right to personal liberty by view of natural law or common law if any, is deemed to have come into force on 25th day of June, 1975 while the remaining provisions of the Second Amendment Ordinance are deemed to have come into force on 29-6-1975. The result of these amendments is that Sections 8 to 12 of the Principal Act shall not apply to the case of persons who are detained after the proclamation of the emergency. No grounds need be served on these persons within the period prescribed by Section 9 of the Act as laid down by the Principal Act or as amended by the 1st Amendment Ordinance. No advisory boards need be constituted to review the case of such detention nor the case of the detenus need be referred for the report of the Advisory Boards as laid down by Sections 9 to 12 of the Act.

In view of the amendment a detenu may now be detained for the maximum period of 12 months even without the confirmation of the detention by the Government on the report of the Advisory Board. There can be no doubt that a law of detention which does not provide for communication of the grounds of detention on which the order of detention has been made and which does not afford the detenu the earliest opportunity of making a representation against the order would be void under Articles 21 and 22 of the Constitution of India.

27. Just as the learned Attorney General in Makhan Singh v. State of Punjab, : 1964CriLJ217 , the learned Advocate General appearing for the State in these cases also was 'not in a position to challenge the contention of the petitioners that the First and the Second Amendment Ordinances contravened Articles 14, 21 and 22 (4), (5) and (7).' He did not contend that the impugned Ordinance authorising detention of a person without trial and without service of grounds and without affording an opportunity to the detenu to make a representation against the detention would ordinarily be valid. But his contention is that in view of the Proclamation of Emergency and the President's declaration under Article 359(1) of the Constitution, that the right to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22 shall remain suspended for the period during which the proclamation of Emergency is in force, no court can entertain a petition questioning the validity of any law on that ground and consequently cannot reach the stage of declaring any such law to be void or of quashing the detention order on that ground. In fact he contends that having regard to the broad sweep of the Presidential declaration which is not restricted in its operation with reference to powers exercisable under any particular law, any arrest and detention made during this period even without reference to any statutory power cannot be questioned in any Court of law on any ground whatsoever.

28. Mr. Kannabhiraman for the petitioner, however, contends that a declaration under Article 359 does not authorise the making of laws which are violative of fundamental rights. Such laws are void in view of article 13(2) of the Constitution. Neither the Parliament nor any State Legislature nor the President or the Governor in exercise of their power to issue Ordinances make laws which are violative of the rights conferred by Part III of the Constitution. Any law which is violative of the provisions of the Chapter III of the Constitution being void arbitrary initio, any action taken thereunder would be ipso facto void and consequently the declaration made under Article 359 of the Constitution cannot stand in the way of the detenu approaching the court to declare the detention to be illegal and without jurisdiction and obtain a writ of habeas corpus.

29. This leads us to the question as to the scope of the power exercisable by the President under Article 359 of the Constitution and the effect of the declaration made thereunder. A declaration under Article 359 may be made by the President only where a proclamation of Emergency is in operation. Under that provision he is only empowered to 'declare that the right to move any Court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order shall remain suspended for the entire period of Emergency or for a specified shorter period. Such declaration may apply to all proceedings pending in any Court for the enforcement of the rights mentioned in the order. The President has power to suspend the right to move any Court for the enforcement of all or any of the rights conferred by Part III. The declaration so made may extend to the whole of any part of the territory of India. After the declaration every such order is required to be laid before each House of Parliament. If Article 359 is read along with Article 358 it would be apparent that while the proclamation of Emergency is in operation, by virtue of Art. 358 itself without any further declaration by the President the State becomes vested with the authority to make any law or to take any executive action unfettered by anything contained in Article 19.

In other words the operation of Article 19 remains suspended automatically by virtue of proclamation of emergency by the President under Article 352 of the Constitution and the State's power to make any law or to take any executive actin is free from the restrictions imposed by Article 19 and correspondingly to that extent the right of a citizen remains suspended. Any law so made will cease to have any effect to the extent it is violative of Article19 no sooner than the proclamation issued under Article 352 ceases to operate except as respects things done or omitted to be done during that period. Under Article 358 by the mere proclamation of Emergency the rights conferred by the other provisions contained in Part III do not remain suspended and the State is not empowered to make any law or to take any executive action which is violative of any other provision contained in Part III. Only by virtue of a declaration made by the President under Article 359 the right to move any Court for the enforcement of such of the rights conferred by Part III as are mentioned in the order remain suspended.

A close reading of the Art, would disclose that what is suspended is the right to move any Court for the enforcement of the specified rights conferred by Part III and not the rights themselves. The declaration does not empower the State to make any law or to take any executive action which is violative of the rights conferred by Part III of the Constitution. In other words while the legislature and the executive have not been given the power to make laws or take executive action in violation of any of the provisions contained in Part III of the Constitution, the right to move any Court for the enforcement of such rights as are specified in the order remain suspended during the period of proclamation or such shorter period as is specified in the order. Hence even during the proclamation or Emergency, if an enactment were found to be violative of any of the rights conferred by Part III of the Constitution, as are specified in the declaration that law would be void under Article 13(2) of the Constitution.

30. The Supreme Court in Makhan Singh v. State of Punjab, : 1964CriLJ217 pointing out the distinction between Article 358 and 359 held as under :

'The suspension of Article19 for which provision is made under Article 358 applies to the whole of the country, and so, covers all legislatures and also states. On the other hand, the order issued under Article 359(1) may extend to the whole of India or may be confined to any part of the territory of India...... as soon as a Proclamation of Emergency has been issued under Article19 is suspended and the power of the legislatures as well as the executive is to that extent made wider. The suspension of Article19 during the pendency of the proclamation emergency removes the fetters created on the legislative and executive powers by Article19 and if the legislatures make laws or the executive commits acts which are inconsistent with the rights guaranteed by Article19 their validity is not open to challenge either during the continuance of the emergency or even thereafter. As soon as the proclamation eases 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 Article19 because as soon as the emergency is lifted. Article19 which was suspending during the emergency is automatically revived and begins to operate. Article 359, however, makes it clear that things done or omitted to be done during the emergency cannot be challenged even after the emergency is over. In other words, the suspension of Art.19 is complete during the period in question and legislative and executive action which contravenes Art. 19 cannot be questioned even after the emergency s over. Article 359, on the other hand, does not purport expressly to suspend any of the fundamental rights. It authorises the President to issue an order declaring that the right to move any court for the enforcement of the rights so mentioned shall remain suspended for the period during which proclamation is in force or for such shorter period as may be specified in the order. What the Presidential Order purports to do by virtue of the power conferred on the President by Art. 35(1) is to bar the remedy of the citizens to move any court for the enforcement of the specified rights. The rights are not expressly suspended but the citizen is deprived of the right to move any Court for their enforcement.'

But the Court can examine the provisions of an Act and pronounce upon the validity with reference to the provisions contained in Part III only in properly constituted proceedings initiated by a person having the right to move the Court. Before pronouncing upon he validity of the enactment the Court has to initially ascertain whether petitioner before it has the right to move the Court, and only then determine whether the provision complained of is violative of any of the provisions of Part III of the Constitution. Any pronouncement as to whether an enactment is valid or void, when it is complained that it is violative of the rights conferred by Part III could be made only when the person who has moved the Court has the right to do so. Every citizen has a right to move the Court for the enforcement of the rights conferred by Part III. Such a right is expressly conferred by Articles 32 and 226 of the Constitution of India. However, under Article 359(1) the President is vested with the power to declare that the right to move any court for the enforcement of the rights conferred by Part III shall remain suspended during the period of Emergency. That being so at the very threshold any person complaining of the infringement of the rights conferred on him by Part III by any legislative or executive action of the State meets with an insurmountable hurdle. Unless he crosses that and the court finds that he has a right to move the Court complaining of such infringement, the next stage for the court to consider whether in fact the legislative enactment or the executive action is violative of such right as is conferred on him by Part III of the Constitution is not reached. When the Court finds that the right of a person to move the court is taken away, even if the court comes to the conclusion that a particular piece of legislation or a particular executive action is violative of any of those rights, as it cannot entertain such an attack on the legislation, it cannot give such a declaration in favour of the petitioner. In other words, even though the law, if permitted to be scrutinised by the Court is found to be void under cl 13(2) for being in violation of the provisions contained in Part III of the Constitution the court cannot declare it to be so because the right of the person who has moved the court has been suspended by a declaration under Article 359(1) made by the President for the period of Emergency. While the law may be void there cannot be any declaration to that effect so log as the declaration made by the President under Article 359(1) subsists.

31. It is true as contended by Mr. Kannabhiraman learned counsel for the petitioners that the legislative power of the President conferred by Article 123 of the Constitution is not wider than the one conferred on the Parliament to make laws. The power of Parliament by an Ordinance vested in the President under Article 123(1) of the Constitution could be exercised only when both the houses of Parliament are not in session and upon his satisfaction that the circumstances for taking immediate action, exist. Further as laid down in clause (3) of Article

'if and so far as an Ordinance under Article 123(1) makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.'

In Makhan Singh v. State of Punjab, : 1964CriLJ217 it was laid down:

'.............. the Presidential order cannot widen the authority of the legislature or the executive it merely suspends the right to move any court to obtain a relief on the ground that the rights conferred by Part III have been contravened if the said rights are specified in the Order.'

Thus the power of the President in this behalf is co-extensive with that of the Parliament, though the conditions for its exercise are defined and limited. Hence, if the Maintenance of Internal Security Act, 1971 were to be amended by the Parliament in the manner now amended by the two impugned Ordinances, they would be violative of the provisions contained in Part III of the Constitution and as the President has no greater or larger legislative power in this behalf that the Parliament, these Ordinances in so far as they are violative of Article 14, 21 and 22 would be void. There is also no provision in the Constitution similar to the one in Article 358 giving protection to actions taken under such laws. While considering this aspect and declaring that

'the inevitable consequence of this position is that as soon as the Order ceases to be operative the infringement of the rights made either by the legislative enactment or by executive action can perhaps be challenged by a citizen in a Court of law and the same may have to be tied on the merits on the basis that the rights alleged to have been infringed were in operation during the pendency of the Presidential Order and afford indemnity to the executive in that behalf,'

the Supreme Court left the matter open observing that 'the validity and the effect of such legislative action may have to be carefully scrutinised.' But nonetheless as during the subsistence of the declaration under Article 359, the right of every person to move the Court complaining about such infringement is taken away, the court has no occasion to declare the law or the action to be void.

32. Mr. Kannabhiraman, learned counsel for the petitioner stresses that what are suspended by a declaration of the President under Article 359(1) are not the rights conferred under Part III of the Constitution of India but only the right to move the court to enforce the rights conferred by Part III. In other words according to the petitioner's counsel the fundamental right remains intact notwithstanding the declaration under article 359(1) therefore the validity of the law on the ground of infringement of fundamental right can be questioned. The law which is void under Article 123(2) is non est and therefore the executive action purported to be taken thereunder is void ab initio. Having regard to the pronouncement of the Supreme Court in Makhan Singh v. State of Punjab, : 1964CriLJ217 which is binding on this Court, it is unnecessary for us to examine in detail this contention and give our own reasons.

33. In Makhan Singh v. State of Punjab, : 1964CriLJ217 the validity of the Presidential order dated November 3, 1962 issued under Cl. (1) of Art. 359 suspended the right of a person to move any Court for the enforcement of the rights conferred by Articles 21 and 22 of the Constitution, which was subsequently modified to include rights by Article 14 also during the period of Emergency Proclaimed on 26-10-1962, if such persons have been deprived of any right under the Defence of India Ordinance 1962, or any Rule or order made thereunder. While the Defence of India Ordinance 1962 was promulgated on 26-10-1962 the declaration under clause (1) of Article 359 was made on 3-11-1962. Therefore, the question cam e up for consideration whether the Ordinance was void before the declaration under Article 359(1) was made and could have been challenged before that date on ground that it contravened Articles 14, 21 and 22 and whether the said Ordinance was a 'still born piece of legislation' and whether detentions under a void law could not be protected by the Presidential Order by depriving the detenus of their right to move any Court to challenge the validity of the orders of detention. The Supreme Court turned down the contention that the right to challenge the validity of detentions under a void law cannot be taken away 'as wholly mis-conceived' and held 'if the petitioners are justified in contending that the Ordinance and the Act which took its place contravene the fundamental rights guaranteed by Articles 14, 21 and 22 the said Ordinance and the Act would be and continue to be invalid, but the effect of the Presidential Order is that their invalidity cannot be decided during the prescribed period. Therefore, the argument that since the Ordinance or the Act is invalid, the Presidential Order cannot preclude a citizen from testing its validity must be rejected.'

The court then pointed ut that the legality and the propriety of the detentions could however be challenged even during the period of Emergency and the declaration of the President on certain grounds. If 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. 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. If the detention has been ordered mala fide, then also it is not immune from attack. Where a particular provision of law under which a person is detained suffers from the vice of excessive delegation and is therefore invalid, such a plea of the detenu also cannot at the threshold be said to be barred by the Presidential Order. Such an attack on the orders of detention are not relatable to the fundamental rights specified in the said Order. They are independent of the said rights.

The Court then upheld :

'It is quite true that if the Act has contravened the citizens' fundamental rights under Articles 14 and 22, it would be void and the detentions effected under the relevant provisions of the said Act would be equally inoperative; but it must be remembered that it is precisely in this set of circumstances that Art. 359(1) and the Presidential Order issued under it step in and preclude the citizen from enforcing his fundamental rights in any court. The said article as well as the Presidential Order issued under it indicates that there may be cases in which the specified fundamental rights of citizens have been contravened by executive action and the impugned executive actin may be invalid on that account. That is precisely why the said article and Presidential Order impose a ban against the investigation and the impugned executive action may be invalid on that account.'

In the view the alternative argument, that though the court may not be empowered to direct release of the detenu inasmuch as the detenu's right to move the Court is suspended, the Court may yet grant a declaration that the law under which he is detained is void and upheld

'what article 359(1) purports to do is to empower the President to make an order by which the right to the detenu to move the Court to challenge the validity of his detention on the ground that any of his fundamental rights specified in the order have been contravened is suspended and so, it would be unreasonable to suggest that what the detenu cannot do in order to secure his release, he should be allowed to do merely for the purpose of obtaining an academic declaration..................'

34. The Court laid down that a declaration that the Act authorizing the detention is void because it contravenes the fundamental rights specified in the Presidential Order cannot be granted.

35. The Supreme Court posing the question as to what is the nature of the proceedings which are barred by the Presidential Order issued under Article 359(1) answered thus :---

'They are proceedings taken by citizens for the enforcement of such of the rights conferred by Part III as may be mentioned in the order. If a citizen moves any court to obtain a relief on the ground that his fundamental rights specified in the order have been contravened, that proceeding is barred. In determining the question as to whether a particular proceeding falls within the mischief of the Presidential Order or not, what has to be examined is not so much the form which the proceedings has taken or the words in which the relief is claimed as the substance of the matter and consider whether before granting the relief claimed by the citizen, it would be necessary for the Court to enquire into the question whether nay 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 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 without examining the question as to whether the citizen is in substance seeking to enforce any of the said specified fundamental rights. Article 359(1) and the Presidential Order issued under it may constitute a sort of moratorium or a blanket ban against institution or continuance of any legal action subject to two important conditions. The first condition relates to the character of the legal action and requires that the said action must seek to obtain a relief on the ground that the claimant's fundamental rights specified in Presidential Order have been contravened and the second condition relates to the period during which this ban is to operate.'

The contention that the law being void, it must deemed non est and ignored and the executive action based thereon must be struck down was termed by the Supreme Court in Makhan Singh v. State of Punjab, : 1964CriLJ217 as 'arguing in a circle'. This view has been followed by the Supreme Court itself in subsequent cases.

36. Under the threat of Chinese Aggression the President of India had issued a proclamation of Emergency in exercise of the powers conferred on him by clause (1) of Article 352 of the Constitution declaring that a grave Emergency existed whereby the security of India was threatened by external aggression. Thereafter two orders were issued by the President one on 3-11-1962 and the other on 11-11-1962 in exercise of the powers conferred by clause (1) of Article 359 of the Constitution. The first order as amended by the later order read 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 Arts. 14, 21 and 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under cl. (1) of Art. 352 thereof on the 26th October, 1962, is in force, if such person has been deprived of India Ordinance, 1962 (4 of 1962) or any rule or order made thereunder.'

During the subsistence of this Order, Ananda Nambiyar, then sitting Member of Parliament was arrested and detained on 29-11-1964 by the Government of Madras in purported exercise of the power conferred under Rule 30 (1) (b) and (4) of Defence of India Rules, 1962 on its satisfaction that with a view to preventing him from acting in a manner prejudicial to the Defence of India and the Public Safety it was necessary to make an order directing that he be detained. Dealing with the preliminary objection to the maintainability of a petition under Article 32 of the Constitution challenging the validity of the said detention the Supreme Court in Ananda v. Chief Secretary, Government of Madras, : 1966CriLJ586 held :

'So long as the Presidential Order remains in force the validity of the Ordinance rule or order made thereunder cannot be questioned on the ground that they contravene Arts. 14, 21 and 22; but this limitation will not preclude a citizen from challenging the validity of the Ordinance, rule or order made thereunder on any other ground................ The challenge to the Ordinance, rule or order made thereunder cannot also be arised on the ground on the contravention of Art.19, because as soon as a Proclamation of Emergency is issued by the President, under Art. 358 the provisions of Art.19 are automatically suspended.'

So too in the case of the detention of Dr. Ram Manohar Lohia made under Rule 30 (1) (b) of the Defence of India rules, 1962 during the subsistence of the above Proclamation, the Supreme Court in Ram Manohar v. State of Bihar, : 1966CriLJ608 , followed the view expressed in Makhan Singh v. State of Punjab, : 1964CriLJ217 but issued a writ of Habeas Corpus 'on the ground that 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.'

37. Having regard to the above pronouncements of the Supreme Court, although the fundamental rights guaranteed under Part III themselves are not suspended and the President is not empowered to suspend them and consequently no legislature including the President can under Article 123 issue an Ordinance which is violative of the fundamental rights guaranteed by Part III, still no court can declare them to be void as they right to move the Court itself is barred by a declaration under clause (1) of Art. 359 for the entire period during which a proclamation of Emergency is in force or for such shorter period as is specified in the said declaration.

38. The difficulty was sought to be overcome by Mr. P.A. Chowdary, learned counsel for the petitioners in W.P. No. 3774/75 by urging that although the provisions contained in Part III of the Constitution are generally referred to as the fundamental rights, all these articles do not confer fundamental rights as such. Some provisions declared fundamental rights while others operate as constitutional injunctions against the legislatures and the executive and do not crate any positive fundamental right in favour of any person or citizen. What Article 359(1) empowers the President is only to suspend the right of a person to move a Court for the enforcement of the rights of a person to move the Court complaining about the violation of the constitutional injunctions contained in Part III against the legislatures and the executive. Any declaration made suspending the right to move the court complaining abut the injunctions contained in Articles 14, 21 and 22 would be violative of Article 359(1) itself. Although the Court may be debarred from examining the validity of the declaration of Emergency under Article 352 of the Constitution, the Court are not precluded from holding such a declaration to be ultra vires of Article 359(1) and therefore void. If the legislative or the executive action infringes the injunctions contained in Articles 14, 21 and 22, a person complaining of such infringement is not debarred from approaching the Court, i so complaining, he is not seeking to enforce any fundamental right, which alone may be suspended by the President under Article 359(1) of the Constitution. This leads us to the necessity of examining the nature and context of the provisions of Part III of the Constitution.

39. Even in Makhan Singh v. State of Punjab, : 1964CriLJ217 the Supreme Court declared that

'Article 359, on the other hand does not purport expressly to suspend any of the fundamental rights. It authorises the President to issue an order declaring that the right to move any Court for the enforcement of such of the rights in Part III as may be mentioned in the order and all proceedings in any Court for the enforcement of the rights so mentioned shall remain suspended for the period during which proclamation is in force or for such shorter period as may be specified in the order. What the Presidential Order purports to do by virtue of the power conferred on the President by Art. 359(1) is to bar the remedy of the citizens to move any Court for the enforcement of the specified rights.'

It is true as contended by Mr. P.A. Chowdari, learned counsel for the petitioner that in coming to the conclusion it did, the Supreme Court did not examine whether Articles 14, 21 and 22 of the Constitution declare fundamental rights in favour of a citizen or operate an injunctions against the 'State'. In that case the argument proceeded on the footing that Articles 14, 21 and 22 conferred fundamental right itself not having been suspended by virtue of a declaration under Article 359(1) the Court could examine the validity of the enactment and the executive action thereunder. Considering that limited submission, the Court while stating 'We do not propose to decide this question' assumed in favour of the appellants

'that the said rights are in theory, alive and it is on that assumption that we will deal with the other points raised in the present appeals.'

The Court then held that

'if a citizen moves a court to obtain a relief on the ground that his fundamental rights specified in the order have been contravened that proceeding is barred .................. if any relief cannot be granted to the citizen without determining the question of the alleged infringement of the specified fundamental rights, that is, a proceeding which falls under Article 359(1) and would therefore be hit by the Presidential Order issued under the said Article. The sweep of Article 359(1) and the Presidential Order issued under it is thus wide enough to include all claims made by the citizens in any court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question to whether the citizen is in substance seeking to enforce any of the said specified fundamental rights.'

The Court also pointed out that

'in determining the question as to whether a particular proceeding falls within the mischief of the Presidential Order or not, what have to be examined is not so much the form which the proceeding has taken or the words in which the relief is claimed as the substance of the matter and consider whether before granting the relief claimed by the citizen, it would be necessary for the Court to enquire into the question whether any of the specified fundamental rights' have been contravened.'

In that view it held that

'proceedings taken by a citizen either under Article 32(1) or under Article 226(1) are hit by Article 359(1) and Presidential order issued under it.'

The Court then proceeded to consider the alternative argument that the proceedings under Section 491(1)(b) Cr. P.C. are of such a distinctly separate character that they cannot fall under Article 359(1) and pointed out that

'before the Constitution was adopted it would not have been open to the detenu to claim that the impugned law was invalid because it contravened his fundamental rights guaranteed by the relevant articles of the Constitution. The right to challenge the validity of a statute on the ground that it contravened the fundamental rights of a citizen has accrued to the citizens of this country only after and as a result of the provisions of the Constitution itself, and so, there can be no doubt that when in the present proceedings the detenu seek to challenge the validity of the impugned statutory provision and the Rule they are invoking their fundamental rights under the Constitution............. so whenever a detenu relies upon his fundamental rights even in support of his petition made under Section 491 (1) (b) he is really enforcing the said rights and in that sense the proceedings inevitably partake of the character of the proceedings taken by the detenu in enforcing these rights. That is why the argument that Article 359(1) and the Presidential order issued under it do not apply to the proceedings under Section 491 (1) (b) cannot be sustained.'

The Court then referred with approval to the decision in Mohan Choudhari v. Chief Commissioner Tripura : 1964CriLJ132 wherein the court rejected the detenu's petition as barred by the Presidential Order and refused to entertain the argument that the Ordinance, the Act and the Rules framed thereunder were void for the reason that they contravened Articles 14, 21 and 22 of the Constitution with the observation that the challenge made by the petitioner in that behalf really amounted to arguing in the circle. The Court then held :

'If the Presidential Order precludes a citizen from moving the court for the enforcement of the specified fundamental rights, it would not be open to the citizens that it offends against the said fundamental rights. It is in order to prevent the citizen from making such a claim that the Presidential Order has been issued, and as during the period of its operation, the challenge to the validity of the Act cannot be entertained.'

In the result the Court concluded that 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.'

40. Mr. P. A Chowdary, learned counsel for the petitioner therefore argues that the Supreme Court thus proceeded to declare that during the operation of the Emergency and the declaration under Article 359(1), the validity of any law or the action taken thereunder cannot be challenged as violative of the specified provisions of Part III of the Constitution, on the assumption that Part III guarantees fundamental rights. If the Supreme Court had kept in view the distinction between fundamental rights in favour of persons and constitutional injunctions against the State, it would not have come to the conclusion it did where the compliant is of the violation of Articles 14, 21 and 22 which according to him are in the nature of Constitutional Injunctions and for Fundamental Rights.

41. Before we proceed to further examine this contention we must not lose sight of the fact that under Article 141 the law declared by the Supreme Court is binding on all Courts within the territory of India. When the Supreme Court has declared that during the subsistence of a declaration under Article 359(1) the validity of an enactment or executive action cannot be questioned as violative of the provisions of Part III of the Constitution, no court in India can hold otherwise o the ground that, if only the Supreme Court had kept in view of difference in wording of the various Articles occurring in Part III of the Constitution and found that some confer Fundamental rights in favour of persons or citizens while other operate as Injunctions against the State, it would not have come to that conclusion. It is precisely in regard to such an argument that found favour with the Bombay High Court in B.M. Lakhani v. Malkapur Municipality, : AIR1970SC1002 the Supreme Court held :

'The decision (of the Supreme Court) was binding on the High Court and the High Court could not ignore it because they thought that relevant provisions were not brought to the notice of the court.'

42. In view of the above pronouncement of the Supreme Court that distinction, if any, between the various provisions of Part III of the Constitution cannot in our view be declared by any High Court as making any difference with regard to the right of a person to move the Court during the operation of the Proclamation under Article 359(1) of the Constitution.

43. Now, let us examine if there is really any distinction such as is sought to be made out by Mr. P.A. Chowdary in the several articles occurring in Part III of the Constitution -- some only constituting Fundamental rights and the rest amounting to injunctions.

44. Part III of the Constitution of India is entitled 'fundamental rights' Article 12 defines 'State' and Article 13 declares that all laws inconsistent with or in contravention of the provisions of Part III to be void to the extent of such inconsistency or contravention. Articles 14, 15, 16, 17 and 18 occur under the heading 'Right to Equality'. 'Right to Freedom' is enshrined in Articles19, 20, 21 and 22. Articles 23 and 24 occur under heading 'Right against Exploitation', 'Right to Freedom of Religion' occur in Articles 25, 26, 27 and 28 Cultural and Educational rights are declared under Articles 29 and 30. Right to property is declared under Articles 31, 31(a), 31(b) and 31(c). Under the heading 'Right to Constitutional Remedies' the right to move the Supreme Court is reserved under Article 32 of the Constitution. In enunciating these rights the framers of the Constitution have employed different phraseology in different articles of that part. Some of these rights such as the 'Right to Freedom' guaranteed under Article 19, the 'Right to Freedom of Religion' guaranteed by article 25, the 'Right of any section of citizens to conserve distinct script or culture of it sown the Right to Minorities to establishment and administer educational institutions of their choice under Article 30 and the right to move the Supreme Court for enforcement of the rights are declared in positive language to be rights guaranteed to the citizens. But the other relating to 'Right to Equality' covered by Articles 14, 15 and 16 'Right to Freedom' as stated under Articles 20, 21 and 22 'Right to Freedom of Religion' as described in Articles 27 and 28 and the 'Right to property' as declared under Article 31 are in the form of directions of injunctions against the State. The State action, legislative or executive, controlled by and taken in obedience to these injunctions in effect guarantee to these injunctions in effect guarantee these rights to the citizens and persons.

45. Mr. Chowdary vehemently contends that the difference in the language employed in these various articles cannot be brushed arise as of no consequence.

46. In support of his contention that what is contained in Part III of the Constitution of India is merely a restriction of the executive and legislative powers of the State and not any Fundamental rights guaranteed to a citizen. Mr. P.A. Choudary, learned counsel for the petitioner referred to the observations of Sir Ivor Jennings in Chapter IV (page 38) of 'Some Characteristics of the Indian Constitution.'

'............... the so-called fundamental rights are restrictions on legislative, executive and in a few cases judicial powers. They are liberties allowed by the English law. Part IV of the Constitution deals with the positive obligation of the State towards its citizens. Part III which is entitled Fundamental rights, deals with the negative obligations................ It is in fact not a right at all, but a restriction on executive and legislative power ................ Articles 14, 19(1) and 25(1) are different because they impose limitations on legislative power.'

He also placed reliance on what Alan Gledhill in his book Fundamental Rights in India' said with regard to the provisions contained in Part III of the Indian Constitution. They are

'.............. there is no declaration of the rights of the subject, nor guarantee of their enforcement in fact they are only ascertainable from the remedies available in case of their infringement.'

That what is contained in Part III and in particular Article 14, 21 and 22 are only injunctions is also sought to be fortified by Mr. Choudhari by what was observed in the judgment of the Supreme Court in Bashehar Nath v. I.T. Commissioner, : [1959]35ITR190(SC) . In that case their Lordships considered 'Whether a breach of the Fundamental Right flowing from Article 14 can be waived' and observed:--

'................. that this article is in form an admonition addressed to the State and does not directly purport to confer any right on any person as some other articles for example Article19 do............. The command of the article is directed to the State ................ Article 14 therefore is an injunction to both the legislative as well as the executive organs of the State and the other subordinate authorities.'

But even in this decision, it would be noticed that their Lordships never held that Article 14 did not confer any right on a person. In fact their Lordships observed :

'the underlying object of this article is undoubtedly to secure to all persons, citizens or non-citizens the equality of status and of opportunity referred to in glorious preamble of our Constitution.'

Their Lordships also recognised that 'the obligation thus imposed on the State no doubt, enures for the benefit of all persons, for, as a necessary result of the operation of this article, they all enjoy equality before law. That is, however, the indirect, though necessary and inevitable, result of the mandate. The command of the 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.'

In conclusion the Supreme Court held :

'Whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on his by this constitutional mandate directed to the State.'

In paragraph 26 of the judgment of the Supreme Court concluded:--

'................. that under Article 13(2) an admonition was administered to the State not to enact any law which takes away or abridges the rights conferred by this part and the obligation thus imposed on the State enured for the benefit of all citizens of Bharat alike in respect of all the fundamental rights enacted in Part III of the Constitution. No distinction was made in terms between the fundamental rights said to have been enacted for the benefit of the individual and these enacted in the public interest or on grounds of public policy.'

47. In State of Gujarat v. Shri Ambika Mills, AIR 1974 SC 1309 it was laid down that

Article 13(2) in an injunction to the State not to pass any law which takes away or abridges the fundamental rights conferred by Part III and the consequence of the contravention of the injunction is that the law would be void to the extent of the contravention..................'

This decision in particular declares rights do not exist in vacuum.

'They must always inhere in some persons whether natural or judicial and, under Part III, they inhere even in fluctuating bodies like a linguistic or religious minorities or denominations.'

It is significant to note that this judgment also recognizes such injunctions to be conferred rights. Their Lordships declared :

'When Article 13(2) uses the expression 'void' it can only mean, void as against persons whose fundamental rights are taken away or abridged by a law. The law might be 'still-born' so far as the persons, entitles or denominations whose fundamental rights are taken away or abridged ................'

Thus none of these decision relied upon by the learned counsel for the petitioner in fact lays down that what is contained in Chapter III or in particular Article 14, 21 and 22 are mere injunctions not conferring any right on persons entitles or denominations.

48. In R.C. Cooper v. Union of India, AIR 197- SC 564 the Supreme Court in paragraph 61 of its judgment observed:--

'............... 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; Articles 29(1), 30(1), 26, 25 and 32; in others to ensue protection of industrial rights they take specific forms of restrictions on State action---legislative or executive--Articles 14, 15, 16, 20, 21, 22(1), 27 and 28; in some others, it takes the form in a positive declaration and simultaneously enunciates the restriction thereon; Articles 19(1) and 19(2) to (6) in some cases, it arises as an implication from the delimitation of the authority of the State i.e., Articles 31(1) and 31(2) in still others, it takes the form of a general prohibition against the State as well as others, Articles 17, 23 and 24. 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. The guarantees delimit the protection of those rights in their allotted fields they do not attempt to enunciate distinct rights.'

49. Thus notwithstanding the difference in the language employed in the various classes of articles occurring in Part III entitled fundamental rights the Supreme Court construed them as conferring rights on persons either positively or by prohibiting the State from taking certain legislation or executive action in violation of those articles. They were not construed as mere injunctions.

50. A Full Bench of this Court in Venkatarao v. State of A.P. ILR : AIR1975AP315 considering the validity of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 referring to the observations of the Supreme Court, in Basheshar Nath v. Income-tax Commissioner, : [1959]35ITR190(SC) on which Mr. Choudhari placed strong reliance to contend that Article 14 constitutes an injunction and not a fundamental right held that

'Article 14 confers a fundamental rights on a person though in another sense it may amount to an injunction prohibiting the legislative and the executive organs from making any invidious or hostile discrimination.'

The Full Bench repelled the contention that Article 14 did not confer a right.

51. Subbarao J., in Makhan Singh v. State of Punjab, : 1964CriLJ217 referred to these as 'the most valuable rights'. The differences in the language employed in conferring the right under the various articles contained in Part III of the Constitution is one of form and does not affect the content of the said right. Some of the rights are expressed in positive terms as conferring benefit on the citizens or persons in general. Some others are couched in language which is in the form of injunctions or admonitions to the State. Whatever form of the various articles they operate both as rights and injunctions, rights conferred on persons or citizens and injunctions operating against the State. Article 13(2) declares any law made in contravention of Part III void irrespective of whether it is in positive form conferring a right or in a negative form as injunctions to the State. It is not as if, where a positive right is conferred by one of the articles a law made by the State is valid and only those laws which are in contravention of articles in the form of injunctions are void. In either case they are void. The language employed does not alter the nature of these rights aptly referred to and grouped in Part III of the Constitution as 'Fundamental Rights'.

52. The Supreme Court never declared that what is conferred in Article 14 was a mere injunction against the State. In fact, it recognised that this injunction indirectly confers a right on a person to equal protection of laws. In our view all the articles in whatever language couched having regard to their content and having regard to Article 13 constitute both 'Fundamental Rights and injunctions.' So also must be the position with respect to Article 21 and 22 which are in the form of admonitions to the State.

53. Mr. Choudary vehemently contended that every right must have a holder of a right, and when Article 14, 21 and 22 prohibit the State from making any law or taking any action one is unable to postulate who the holder of that right is. These articles of the Constitution according to him could not be deemed to be conferring or guaranteeing any fundamental rights to any person. In this context the learned counsel referred to a passage in the Text Book of jurisprudence by G.W. Paton (Third Edition) at page 249 which describes.

'every legal right is comprised of four elements (1) the holder of the right (2) the act or forbearance to which the right relates (3) the RES concerned (the object of the right) (4) the person bound by duty. Every right, therefore, involves a relationship between two or more legal persons and only legal persons can be boundary duties or be the holders of legal rights.'

But it may be noticed that in this very analysis, the learned author states that

'rights and duties are correlatives that is, we cannot have a right without a corresponding duty or a duty without a corresponding right. When we speak of a right, we are really referring to a right--duty relationship between two persons and to suppose that one can exist without the other is just meaningless as to suppose that a relationship can exist between father and son unless both father and son have existed.'

This also supports our view that when Articles 14, 21 and 22 address an injunction to the State and impose a duty on it they correspondingly confer rights on the citizen. The forbearance which the State must observe in view of these Articles of the Constitution vests the citizen with rights the objects of which is the equal protection of laws and prohibition of preventive detention without service of grounds and affording of an opportunity to represent in accordance with law.

54. The same contention of Mr. P.A. Chowdari, learned counsel for the petitioner may be examined from vet another angle. Article 13(2) of the Constitution declares that any law which takes away or abridges the rights conferred by Part III shall to the extent of the contravention be void. If Articles 14, 21 and 22 are excluded fro the ambit of Article 13 on the ground that they are not fundamental rights but only injunctions against the State, then very undesirable results would follow. Article 32 of the Constitution which guarantees the right to move the Supreme Court for enforcement of the rights conferred by Part III would become wholly otiose if what is contained in Articles 14, 21 and 22 and other provisos in the form of admonitions to the State are not treated as Fundamental Rights and are treated only as injunctions against the State. So also the content of the power of the High Court under Article 226 and the right of the persons thereunder would to a large extent be eroded. The citizen would be deprived of their right to move the Supreme Court and the High Courts complaining about the contravention of Articles 14, 21 and 22. Such could not be the intention of the framers of the Constitution.

This was sought to be met by Mr. P.A. Choudhari, learned counsel for the petitioner by contending that Article 13(2) is introduced only by way of abundant caution. According to him even without that provision, the injunctions contained in Articles 14, 21 and 22 prohibiting legislature from enacting laws in contravention of those articles for the legislative power vested in the Parliament or the State Legislature under Article 246 is subject to the other provisions of the Constitution are in violation of Articles 14, 21 and 22 would be void on the ground of legislative incompetency and not on the ground of violating any Fundamental Rights (sic). Mr. P.A. Choudary contends that the injunctions against the State such as are contained in Articles 14, 21 and 22 and the State Legislature under Article 245 to enact laws or take executive action in pursuance thereof. In view of Article 245 such of the laws as are in violation of Arts. 14, 21 and 22 would be void on the ground of 'legislative incompetency' and not for the reason that they violate any 'Fundamental Rights' Article 245 of the Constitution reads as follows:--

'245. (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India and the Legislature of a State may make laws for the whole or any part of the State.

(2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.

55. The power of Parliament and the Legislature of a State to make laws is undoubtedly subject to the other provisions of the Constitution. Having regard to Article 246, Parliament may make laws with regard to matters enumerated in List No. 1 of the Seventh Schedule referred to as 'Union List'. It shall also have power to make laws with respect to any of the matters enumerated in List No. 1 or List III. But vet the Parliament cannot make any law which takes away or abridges any rights conferred by Part III of the Constitution. Any law so made would be void under Article 13(2) to the extent of the contravention. But according to Mr. P.A. Choudari, learned counsel for the petitioner, when a person complains that a particular law is violative of Articles 14, 21 and 22 he is not enforcing any fundamental right guaranteed to him under the Constitution but challenging the validity of the law on the ground of incompetency of the legislatures. A person's right to challenge the validity of the law on such a ground is not taken away by a declaration under Article 359(1) nor is the President empowered under the said clause to take away such a right.

56. It is true that the Parliament's power to make laws conferred by Section 245 is subject to the other provisos of the Constitution. When Article 14 enjoins that the State shall not deny to any person equality before law or the equal protection of laws within the territory of India and when Article 21 declares that no person shall be deprived of his life or personal liberty except according to the procedure established by law and when clause (5) of Article 22 declares that any person detained in pursuance of any 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 affirm him the earliest opportunity of making a representation against the order, to that extent the power conferred on the Parliament by Article 245 is abridged. Any law made by the Parliament cannot be in derogation of Articles 14, 21 and 22 irrespective of whether what is contained in these articles is a right conferred on the citizens or an injunction against the State. The Parliament would be incompetent to make such law. At observed in Mahendralal v. State of U.P. : AIR1963SC1019 :

'the prohibition contained in Article 13(2) makes the State as such incompetent to make a law taking away or abridging the fundamental rights as it would be where law is made against the distribution of powers contained in the Seventh Schedule to the Constitution between Parliament and Legislature of a State. Further, Art. 13(2) provides that the law shall be void to the extent of the contravention. Now contravention in the context takes place once when the law is made, for the contravention is of the prohibition to make any law which takes away or abridges the fundamental rights. There is no question of the contravention of Art. 13(2) being a continuing matter. Therefore where there is a question of a post-Constitution law there is a prohibition against the State from taking away or abridging fundamental rights and there is a further provision that if the prohibition is contravened the law shall be void to the extent of the contravention. In view of this clear provision, it must be held that unlike a law covered by Art. 13(1) which was void when made the law made in contravention of the prohibition contained in Art. 13(2) is a still-born law.............'

But as already discussed above Articles 14, 21 and 22 though couched as admonitions to the State and prohibit the State from making laws or taking any action in contravention confer valuable rights on the citizens and afford protection from the State action, legislative or executive in contravention thereof. The extent of the injunction is the measure of the right conferred on a citizen. When it is held that Articles 14, 21 and 22 are partly in the nature of injunctions and partly in the nature of fundamental rights conferred on a citizen and one is dependent on the other any person questioning the validity of any law does so only in exercise of his right. It is well recognised principle of general law that no person may be allowed to seek an injunction or a declaration that an injunction has been violated, unless it affects the right of the person complaining. No court would pronounce upon the constitutional validity of a law unless it is absolutely necessary for the purpose of securing the rights of the petitioner. When the right to move a court is suspended by a declaration under Article 359, the Court cannot examine how far the particular law is violative of Articles 14, 21 and 22 and to what extent the Parliament has transferred in making a law in exercise of the powers conferred on it under Article 245(1). In complaining about the violation of an injunction the petitioner may be only seeking a declaration that the law is void on the ground that the Parliament was incompetent to make such law. But a mere declaration cannot be granted unless the law or the action taken thereunder affects the right of that person. In other words unless the corresponding right conferred on that person by Articles 14, 21 and 22 is violated, the arrest and detention of a person could not beheld to be invalid.

In moving a petition for a writ of Habeas Corpus what the petitioner is in fact complaining of is his right to be not arrested except in conformity with Articles 14, 21 and 22. In other words he is asserting his right to be protected against the arbitrary exercise of power of arrest and detention conferred on him by the enactment in contravention of Articles 14, 21 and 22 which confers equality before law and equal protection of laws and which require the service of grounds of detention and affording of an opportunity to make a representation against the order of detention. It is precisely this right to move any Court that is taken away by the declaration under Article 359(1) by the President. There is therefore, no escape from the fact that while the reason may be incompetent either for the reason that the Parliament is not empowered to make such a law under Article 245 which is subject to Articles 14, 21 and 22 or for the reason that any law so made is declared to be void under Article 13(2), the right to move the Court having been taken away the court is precluded from announcing the law to be void and consequently holding the arrest and detention under that law to be bad.

57. Mr. P.A. Choudary answers this by saying that such an impossible situation is created because of the basic assumption which according to imprisonment is erroneous that Right to Freedom of liberty emanates from the provisions of Chapter III of the Constitution. According to the learned counsel freedom and liberty of a citizen springs not from any provision of the Constitution, but it is a natural right inherent in every human being and a necessary concomitant of the rule of law. Therefore, when a person complains about the arrest and detention under a law which the Parliament is not competent to make he is not encroaching any right guaranteed by Articles 14, 21 and 22 but is only seeking to enforce a pre-existing right to freedom and liberty.

58. Mr. Choudary in support of this contention relied on the observations of Sir Ivor Jennings in 'Some Characteristics of the Indian Constitution.'

'What the Indian Constitution seems to do is to prevent encroachment on the liberty, or in other words not to create fundamental rights but to protect fundamental liberties.'

He also placed reliance on certain passages in the book 'Constitutional and Administrative Law by S.A. de Smith. In Chapter 20 'Personal Freedom' under the topic 'Fundamental Rights' the leaned Author observed :

'The traditional legal approach to Civil Liberties in Britain can be summed up in three propositions. First, freedom are not to be guaranteed by statements of general principles. Secondly, they re residual. Freedom of public assembly, for example, means the liberty to gather wherever one chooses except in so far as others are legally entitled to prevent the assembly from being held or in so far as the holding or conduct of the assembly is a civil wrong or a criminal offence. To define the content of liberty one has merely to subtract from the totality the sum of the legal restraints to which it is subject. Thirdly, for every wrongful encroachment upon one's liberty there is a legal remedy awarded by an independent court of justice.'

Reliance was also placed on the statement of A.V. Dicey in 'The Law of the Constitution' regarding the 'Rule of Law' (at page 202) that rule of law'. Then, which forms a fundamental principle of the Constitution, 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 exclude the existence of a arbitrariness, of prerogative of even of wide discretionary authority on the part of the Government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of laws but it can be punished for nothing else.

It means again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts the 'rule of law' in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary Tribunals : there can be with us nothing really corresponding to the 'administrative law'......................

The 'rule of law' lastly, may be used as a formula for expressing the fact which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts; that, in short the principles of private law have with us been by the action of the courts and the Parliament so extended as to determine the position of the Crown and of its servants; thus the constitution is the result of the ordinary law of the land.'

59. Mr. Choudary contents the 'rule of law' is ensured under our Constitution by subjecting the State action to the judicial review under the Federal structure. He relied in this behalf on the judgment of the Supreme Court in State of M.P. v. Bharat Singh, AIR 1967 SC 1170 at p. 1173 in which the Supreme Court declared:

'All executive action which operates to the prejudice of any person must have the authority of law to support it, ad the terms of Art. 358 do not detract from that rule. Article 358 expressly authorizes 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 actin 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 Art. 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 throughout their representatives whereas the official agencies of the executive Government possess only such power as have been conferred upon them by the people; (2) there is a 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.'

This decision, however, does not lay down that any right to freedom or liberty springs from or vests in a citizen de hors the Constitution and any law which takes away such right violets this inherent right to freedom. On the other hand the Parliament and the legislature of the State are conferred unlimited power with respect of matters enumerated in the respective lists of the Seventh Schedule subject to only to the other provisions of the Constitution and in particular provisions of Part III of the Constitution. That is now authoritatively laid down by the Supreme Court in Kesavanada Bharati v. State of Kerala, : AIR1973SC1461 in which the Supreme Court dealing with the power of the amendment vested in the Parliament the majority judgment declared that Part III of the Constitution is not a basic structure and that the entire Part III may be amended. All laws emanate on the power of the Parliament to make laws could be placed, if that be the position, then the law which may be made by the Parliament with respect to any of the matters referred to in the respective lists of the Seventh Schedule may be questioned only on the ground of being violate of one or the other provisions of the Constitution and any such complaint if made on the ground that it is violative of Articles 14, 21 and 22 the declaration made by the President under Cl. (1) of Article 359 stands in the way so long as the declaration is operative.

60. When a person challenges his arrest and detention as illegal even though such arrest is in accordance with the provisions of particular enactment he really complaints of infringement of the provisions of Articles 14, 21 and 22 and not any other natural rights or inherent right to liberty and freedom or violation of principles of natural justice de hors these provisions. All rights emanate from the Constitution, and the freedom fro arrest and detention, except by authority of law emanates from and is guaranteed by Articles 21 and 22. The arbitrary action of the executive is restricted by Articles 14, 21 and 22. The complaint of the citizen against arrest and detention by any authority in exercise of the power conferred by any law is, therefore, traceable to the right conferred by these articles and the right to move the Court having been suspended by a declaration under Article 359(1) for the period specified in the proclamation the Court is precluded from entertaining the same.

61. The learned Advocate General contended that as right to all 'freedom and liberty' emanates from the Constitution and all rights under Article 19 have been suspended by virtue of Article 358 during the period of Emergency and the right of a person to enforce the rights conferred by Articles 14, 21 and 22 also have been suspended by a declaration under Cl. (1) of Article 359 not with reference to any particular enactment but in very general terms, so long as the declaration stands, no person is entitled to move any Court complaining about any arrest and detention as illegal even if it is not in purported exercise of a power vested under any statute. Any arrest ad detention must have the authority of law otherwise it would be violative of Articles 21 and 22 of the Constitution. But when the arrest and detention is in purported exercise of a power conferred by a statute and so long as the complaint is about the violation of the provisions of that law and not about the infringement of any right conferred by Part III, the right of a person to move the Court is not taken away by a declaration under Article 359(1) of the Constitution.

In Dr. Ram Manohar Lohia v. Union of India, : 1966CriLJ608 the objection to the maintainability of the petition for a writ of Habeas Corpus challenging the validity of the detention during the Proclamation of Emergency and declaration under Article 359(1) came up for consideration. There the declaration of the President was with reference to detention under the Defence of India Rules. Even while following the earlier judgment of that Court in Makhan Singh v. State of Punjab, : 1964CriLJ217 the Supreme Court held:

'It is in dispute that the present petition has been made for the enforcement of Dr. Lohia's right to personal liberty under Articles 21 and 22. These articles in substance---and it should suffice for the present purpose to say no more---give people a certain personal liberty. It is said by the respondent State that the President's Order under Article 359(1)altogether prevents us from entertaining Lohia's petition and, therefore, it should be thrown out a once. This would no doubt, subject to certain exceptions to which a reference is not necessary for the purposes of the present judgment, the correct if the Order of November 2, 1962 took away all rights to personal liberty under Articles 21 and 22. But this, the order does not do. It deprives a person of his right to such personal liberty only when he has been deprived of it by the Defence of India Act---it is not necessary to refer to the Ordinance any more as it has been replaced by the Act---or any rule or order made thereunder. If he has not been so deprived, the order does not take away his right to move a Court. Thus if a person is detained under the Preventive Detention Act, 1950, his right to move the Court for enforcement of his rights under Articles 21 and 22 remain intact. That is not a case in which his right to do so can be said to have been taken away by the President's Order. This Court has in fact heard applications under Article 32 challenging a detention under the Act see Rameshwar Shaw v. District Magistrate of Burdwan, : 1964CriLJ257 . It any person save as Dr. Lohia does, that he has been deprived of his personal liberty by an order not made under the Act or the Rules, there is nothing in the President's order under Article 359(1) to deprive him of his right to move the Court under Art. 32. The Court must examine his contention and decide whether he has been detained, under the Act or the Rules and can only throw out his petition when it finds that he was so detained but not before then. If it finds that he was not so detained, it must proceed to hear his petition on its merits. The right under Art. 32 is one of the fundamental rights that the Constitution has guaranteed to all persons and it cannot be taken away except by the methods as provided in the Constitution, one of which is by an order made under Art. 359. The contention that an order under that article has not taken away the constitutional rights to personal liberty must be examined.'

The Supreme Court in Ananda Nambiar v. Chief Secretary to Government of Madras, : 1966CriLJ586 pointed or referring to the decision i Makhan Singh v. State of Punjab, : 1964CriLJ217 that

'this court, took the precaution of pointing out that as a result of the issue of the Proclamation of Emergency ad 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 detention 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.'

62. Dealing with an attack on the arrest made in purported exercise of the power conferred by Rule 30 (10 (b) of the Defence of India Rules, while the Proclamation of Emergency and the declaration of the President under Article 359(1) were in force the Supreme Court in Durgadas v. Union of India, : 1966CriLJ812 pointed out the grounds on which the detention order may be challenged in the following words:

'If the petitioner 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 challenge the Ordinance, rule or order made thereunder on the ground of contravention of Art. 19 are automatically suspended. But a petitioner can challenge the validity of the Ordinance, rule or order made thereunder on a ground other than those covered by Art. 358 or the Presidential Order issued under Art. 359(1). Such a challenge is outside the purview of the Presidential Order. For instance, a citizen will not be deprived of his right to move an appropriate Court for Writ of Habeas Corpus on the ground that his detention has been ordered mala fide. Similarly, it will be open to the citizen to challenge the order of detention on the ground that any of the grounds given in the order of detention is irrelevant and there is no real and proximate connection between the ground given and the object which the legislature has in view.'

In District Collector, Hyderabad v. Ibrahim & Court., : [1970]3SCR498 the Supreme Court struck down the executive action during the period when the proclamation of Emergency under Article 352 was in force resulting in suspension of Article19. The Supreme Court while holding

'the respondents could not challenge the validity of any law enacted by the State Legislature so long as the proclamation of Emergency is in operation on the ground that it impaired the freedoms guaranteed by Article19. They could not also challenge any executive action which, but for the provisions contained in Article19 the State was competent to take ...................'

The Supreme Court declared

'.............. executive action of the State Government which is otherwise invalid is not immune from attack merely because a proclamation of Emergency is in operation when it is taken. Since the order of the State Government was plainly contrary to the statutory provisions contained in the Andhra Pradesh Sugar Dealers' Licensing Order and the Sugar Control Order, it was not protected under Article 358 of the Constitution.'

In the present writ petition also if the attack on the detention of the petitioners was on the ground that the provisions of the principal Act as amended by the two Ordinances have not been complied with, certainly that aspect could be examined by the Court for the right of a person to challenge any act of the executive without seeking to enforce a fundamental right referred to in the declaration made under Article 359(1) or the fundamental right guaranteed under Article19 is not taken away. Even during the Emergency the executive is bound to conform to the laws as are in operation.

63. The learned Advocate General, however, argued that in the above cases refereed to in this behalf, the effect of suspending the right to enforce any of the rights conferred by Articles 14, 21 and 22 did not come up for consideration before the Supreme Court; only the validity of the executive action purported to have been taken in pursuance of a particular enactment but which was outside the scope of that enactment came to be considered while an Emergency was declared and as a consequence, only Article 358 came into operation. We may, however, notice that in Durgadas v. Union of India : 1966CriLJ812 the Supreme Court specifically held that

'a petitioner can challenge the validity of an Ordinance, Rule or Order made thereunder on grounds 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'

and gave instances on which the order could be challenged. Further, it would be seen that even though by virtue of Article 358 the Parliament is empowered, while a Proclamation of Emergency is in operation, to make any law or to take any executive action which the State would be competent to make or to take but for Article19 any executive actin taken by the State in contravention of the statutory provisions then in force was struck down by the Supreme Court in a number of cases.

64. In State of Madhya Pradesh v. Bharat Singh, AIR 1967 SC 1170 where restrictions were placed upon the movement of the petitioner therein within the territory of India and he was prohibited from entering a particular District and was required to reside within a particular area during the Proclamation of Emergency under Article 352 of the Constitution while only Article 358 was in operation, the Supreme Court declared :

'Article 358, however, does not operate to validate a legislative provision which was invalid because of the constitutional inhibition before the proclamation of emergency ........... 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 the 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 contains 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 Art.1919were operative would have been invalid.'

In this context, the Supreme Court, among others, pointed out in that judgment :

'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 throughout their representatives, whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people..................'

The Supreme Court thus emphasized that even during the period of Emergency any executive action must be supported by some law though during the period of Emergency that law cannot be challenged as violative of the provisions of Article19. The executive cannot take away the liberty of a citizen unless it is authorised to do so under some law.

65. In District Collector, Hyderabad v. Ibrahim & Court., : [1970]3SCR498 G.O. Ms. No. 2976 dated 30-12-1964 which was an executive order issued by the Andhra Pradesh State during the proclamation of emergency was held to be plainly contrary to the provisions of Andhra Pradesh Sugar Dealers' Licensing Order, 1963 and the Sugar Control Order 1963 issued by the Central Government and it was held to be not protected under Article 358 of the Constitution. The Supreme Court declared that

'the executive Order immune from attack under Article 358 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 of proclamation of emergency is in operation when it is taken.'

The constitutional validity of Section 17-A of the Maintenance of Internal Security Act which began with a non obstante clause and provided for detaining a person for a period longer than three months but not exceeding two years without obtaining the opinion of the Advisory Board, came up for consideration before the Supreme Court in S.N. Sarkar v. State of West Bengal, : [1974]1SCR1 during the period when a proclamation of emergency was in operation, but no declaration under Art. 359(1) was made by the President, the Supreme Court declared disagreeing with the majority view in Gopalan v. State of Madras, : 1950CriLJ1383 .

'That it was void under Articles 14 and 22(7)(b) of the Constitution and that the subsequent declaration of emergency and the enactment of Section 6 (6) (d) could not breathe life into those provisions which were already void.'

These rulings emphasize that even during the period of Emergency all even action must be supported by authority of law, and though a law violating Article19 of the Constitution may be made for the period of Emergency, no executive action under a law which was void even prior to the declaration of Emergency or an executive action unsupported by any law and is violative of Article19 could be taken merely because the Emergency was in operation. If that be the position, with regard to an executive action taken with reference to Article 358 which specifically authorised the enactment of laws which the Parliament was entitled to enact, irrespective of the restrictions imposed by Article19. We do not think that merely because a declaration under Article 359(1) of the Constitution which did not specifically empower the Parliament or the President to make laws violating the rights conferred by Part III of the Constitution and which merely empowers the President to suspend the right to move a Court for the enforcement of such rights, was very intended to protect the executive action without the authority of any law whatsoever.

Liberty of an individual and freedom of thought and expression and of Association have always been cherished by men and recognised by Courts as valuable rights. Though the security of the State is paramount and the rights of an individual in times of Emergency must give way to the later interests of the security of the State, we do not think that the President who has taken oath to protect the Constitution and the laws ever intended by merely suspending the rights of an individual to move a court for the enforcement of the rights conferred by Part III, to empower the executive to take any action to deprive the liberty of an individual even without reference to any law. It is difficult to envisage that the declaration of the President could even have been intended for the purpose of authorising such patently illegal action of depriving a person of his liberty ever, without reference to any law on the footing that such a right does not exist independent of Articles 14, 19, 21 and 22. When the executive purports to arrest a person in exercise of a power vested under any particular enactment and such an order of arrest could be challenged on the ground that it is not in conformity with the provisions of that enactment the executive action cannot be immune from attack when it is an unabashed exercise of arbitrary power which is not even pretended to be in pursuance of any law. However, so far as the detention with which we are concerned in these writ petitions they are in purported exercise of the power vested under a specific provision of law and not independent of it. Hence on this vexed question of law raised by the learned Advocate General, we are not intend to express any opinion. We could, however, like to make it clear that where a detention is ordered in purported exercise of power vested under a particular state and that orders is shown to be in violation of the provisions of that statute or is mala fide or constitutes a colourable exercise of power, then notwithstanding the declaration under Article 359(1) such a detention could be challenged in a court of law.

66. Mr. Kannabhiraman, learned counsel for the petitioner next relied on the decision of the Supreme Court in Bhut Nath v. State of West Bengal, : 1974CriLJ690 in which the Court observed:--

'This Court in many weighty pronouncements over two decades has stressed that Article 22(5) vests a real, and illusory rights, that communication of facts is the corner-stone of the right of representation and orders based on uncommunicated materials are unfair and illegal,: and urged that the Ordinance in authorising the executive not to serve the grounds of detention and denying the detenu the right to make a representation against his detention in fact shakes the basic structure of the Constitution. This in effect according to the learned counsel is a device adopted to circumvent the dicta of the Supreme Court in Kesavananda Bharati v. State of Kerala, : AIR1973SC1461 that the basic features of the Constitution, which includes the right to freedom and liberty cannot be altered even in exercise of the powers of the Parliament to amend the Constitution. What cannot be done by the Parliament, the President cannot do in exercise of the powers vested in him to issue Ordinances under Article123(3) of the Constitution. It is undoubtedly true that in view of clause (3) of Article 123 any Ordinance issued by the President in exercise of the powers conferred o his under clause (1) of Article 123 would be void if it contains any provision which Parliament would not under the Constitution be competent to enact. But nonetheless these Ordinances would be void not because they seek to amend the Constitution but because they violate some provisions of the Constitution or are beyond the competence of the Parliament and therefore of the President. The two impugned Ordinances do not seek to amend any provision of the Constitution and therefore cannot be said to be amending any basic feature of the Constitution. They only seek to amend the provisions of the Maintenance of Internal Security Act. It must, however, be remembered that the Supreme Court dealing with the amending power of the Parliament in Kesavananda Bharati v. State of Kerala, : AIR1973SC1461 declared in unmistakable terms that the fundamental rights enunciated in Part III of the Constitution do not constitute essential features or basic structure of the Constitution. Khanna J., held : 'The power of amendment under Article 368 does not include the power to abrogate the Constitution nor doe sit include the power to alter the basic structure or framework of the Constitution. Subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and includes within itself the power to amend the various Articles of the Constitution, including these relating to fundamental rights as well as those which may be said to relate to essential features. No part of a fundamental right can claim immunity from a mandatory process by being described as the essence or core of that right. The power of amendment would also include within itself the power to add, alter or repeal the various Articles.'

The impugned Ordinances tough violating the fundamental rights guaranteed under Articles 14, 21 and 22 do not amend any provision of Part III of the Constitution, none of which constitute essential features or basic structure of the Constitution. In exercise of his Ordinance making power under Article 123(3) of the Constitution the President has only chosen to amend the principal Act and has not touched any provision of the Constitution as such.

67. It was next argued by Mr. Kannabhiraman, learned counsel for the petitioner that the power of the High Court under Article 226 to review the executive act of detention is taken away by this Ordinance inasmuch as no grounds of detention are served and the executive is authorised to detain by a merely declaration under Section 16-A of the Act. It would be seen that the impugned Ordinance do not expressly bar the jurisdiction of the High Court to entertain a petition under article 226 of the Constitution challenging the validity of the detention order. It is still open to the detenu to move the Court to question the detention order so long as, in so doing, the detenu does not seek to enforce such of the rights conferred by Part III as are specified in the declaration. The right to move the Court is taken away only to that limited extent. So long as there is a law authorising the detention and the detention is made in purported exercise of that power, the detenu may challenge the order of detention if such detention is in violation of the provisions of that law. In other words only the grounds of attack on the detention order are now restricted. It cannot be attacked as violative of such of the fundamental rights as are specified in the declaration. But no sooner than the disability imposed by the declaration under clause (1) of Article 359 ceases to operate the Ordinance would be exposed to attack that they are violative of the rights conferred by Part III. Thus the contention that the Ordinances by themselves wholly take away the right to challenge the order of detention is untenable and must be rejected. The petitioners herein do not state that the orders of detention in any way contravene the provisions of the principal Act as amended by the two impugned Ordinances.

68. It was also argued that inasmuch as the Ordinance now dispenses the compliance of Sections 8 to 11 of the principal Act, no grounds need be served on the detenu and the detenu has no right of representation. In the absence of the grounds of detention, the petitioner cannot make any effective representation and would not be in a position to challenge the same before a Court of law. That may be so but nonetheless, inasmuch as the law itself authorises such detention and the validity of such a law cannot be questioned on the ground that it is violative of the provisions of Part III of the Constitution during the period of declaration under Cl (1) of Art. 359 the detenu is deprived of his right to move the Court, unless the declaration under Clause (1) of Article 359 itself is declared void. It has already been held that the courts are precluded from examining whether the circumstances warrant a proclamation of Emergency under Article 352 or a declaration under Article 359 of the Constitution.

69. It was urged that the High Courts have been expressly vested with the power to issue writs of Habeas Corpus not only for the enforcement of any f the rights conferred by Part III but for any other purpose as well. Hence notwithstanding the declaration under clause (1) of Article 359 the Court has power to issue such a writ where it finds that the detention is invalid. The very power to examine the grounds for detention and therefore that whether the grounds for detention are served upon the detenu or not they must be stated before the Court, so that the Court may examine the same and be satisfied that the detention order is based on non-existent or irrelevant ground and is not a colourable exercise of power. Reliance for this proposition is placed by the learned counsel for the petitioner on the following passage in 'Remedies of English Law' by F.H. Lawson at page 238.

'The writ of habeas corpus ad subifciendum to give its full title, is employed to bring a person before a court for the court to decide what is to be done with him. The best known use is to test the legality of the detention of a prisoner and, if it proves to be illegal to secure his release.'

The Court can always exercise this power by virtue of Article 226 of the Constitution. That article not having been suspended, the court can examine the legality of the petitioner's detention. In this context reliance was also placed upon the following passage occurring in the address of Lord Simonds extracted at page 344 of the 'Cases and Materials on Constitutional and Administrative Law' (1947 app Cas 573 at p. 591)

'.............. It is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And I would say next that it is the corollary of the right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful. How can these rights be reconciled with the proposition that he may be arrested without knowing why he is arrested? It is to be remembered that the right of the constable in or out of uniform is, except for a circumstance irrelevant to the present discussion, the same as that of every other citizen. Is citizen A bound to submit unresistingly to arrest by citizen B in ignorance of the charge made against him? I think my Lords, that cannot be the law of England. Blind, unquestioning obedience is the law of tyrants and of slaves : it does not yet flourish on English soil. I would therefore, submit the general proposition that it is a condition of lawful arrest that the man arrested should been titled to know why he is arrested ...............

But it cannot be forgotten that any complaint that a person is detained although there are no grounds for detention or that the ground are non-existent or unrelated, is really a contention that it is an arbitrary exercise of power violative of Articles 14, 21 and 22 of the Constitution. Reliance was placed by Mr. Choudary on the judgment of Patanjali Sastri, J., in Gopalan v. State of Madras, : 1950CriLJ1383 in which he held :

'An examination of the grounds for these purpose is made impossible by Section 14, and the protection afforded by Article 22(5) and Article 32 in so far as it prohibits the person detained from disclosing 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 purposes aforesaid and to that extent it must be held under Article 13(2) to be void.' This decision however does not help the petitioners, for the validity of the Act therein was tested with reference to Article 14 and 22(5) of the Constitution at a time when a declaration by the President under Article 359(1) was not in force. The question whether the Court has any power to require the grounds for detention to be stated before it when a petition for writ of Habeas Corpus is filed, although the detenu himself need not be shown those grounds could arise only if the detenu had the right to move the Court and seek the assistance of the Court for requiring the detaining authority to produce the grounds of detention. The right to make such a complaint during the period of declaration under clause (1) of Article 359 having been expressly taken away the High Court cannot claim to have and proceed to exercise any implied power vested in it merely because it is authorised to issue writs of Habeas Corpus not only for the enforcement of rights conferred by Part III but may issue them for any other purpose.

In Mohd Yaqub v. State of J & K : 1968CriLJ977 the Supreme Court considered this position and laid down : 'The sixth contention is that Art. 22(5) which lays down that grounds of detention must be communicated to the person detained must still be applicable. We have not been able to understand this argument at all. If the President order is validly made--as we hold it to be---and if it suspends Article 22---as it does--- we fail to see how clause (5) continues, for it is only a part of Article 22, which has been suspended. There is no question therefore of furnishing any ground under Article 22(5) to the detenu if the detention is under the Act or the Rules, for the entire Article 22 has been suspended.'

The contention that so long as Article 226 stands, grounds for detention must be furnished to the detenu even while a declaration under Article 359(1) subsists cannot be upheld.

70. In view of the foregoing discussion as observed by Gajendragadkar J., who wrote the majority opinion in Makhan Singh v. State of Punjab, : 1964CriLJ217 that although it appears that the petitioner's challenge to validity of the impugned Ordinances is indefeasible, the Court

'would not reach the stage of expressing our opinion on the validity of the Act if we were to uphold the preliminary objection that the applications made by the detenus were incompetent.' As declared therein

'if we come to the conclusion that the bar created by the Presidential Order operates against the detenue in the present case the Court cannot pronounce any opinion on the validity of the impugned Act.'

That course was adopted in dealing with the case in Mohan Choudhary v. Chief Commissioner, Tripura, : 1964CriLJ132 .

'that is the only course which this Court can logically and with propriety adopt.'

As we are of the view that the preliminary objection, that the petitioners' right to move the Court during the period when the declaration of the President under Article 359(1) is in force, is taken away must be upheld, no pronouncement as to the validity of the impugned Ordinances or the detention orders issued thereunder could be made by any Court.

71. Only in W.P. No. 3381 of 1975 there is a further allegation that the order for arrest and detention of Sri Venkateswarlu is vitiated by mala fides and is a colourable exercise of power. It was stated that because Sri Venkateswarlu was defending the accused who wee implicated in the 'Naxalite Movement' and had filed several writs of Habeas Corpus alleging that the persons arrested and detained without any authority or justification were also being subjected to torture by the respondents, the Court directed the Inspector General of Police to file a counter-affidavit as to whether the allegations were true, he was arrested and detained. It was also averred that Sri Venkateswarlu as Convenor of several Committees concerned in Civil Liberties had filed a petition in the High Court questioning the jurisdiction of the respondents to execute the sentence of death against Bhoomiah and Kistiah Goud and with a view to mobilize public opinion on this issue he had announced a national convention of all the opposite parties to be held at Hyderabad on July 6, 1975. It is alleged that the respondents have arrested Sri Venkateswarlu with a view to prevent him from exercising his freedom of speech and freedom of association for the furtherance of this public cause.

72. These allegations have been denied in the counter-affidavit filed by the Commissioner of Police who has ordered the detention of Sri Venkateswarlu. It is true that Sri P. Venkateswarlu had moved for commutation of death sentences against Bhoomiah and Kista Goud and had also field a petition in the High Court in this behalf challenging the jurisdiction of the respondents to execute the sentences of death and it is also admitted that he was also mobilising public opinion against the execution of these death sentences, there is nothing on record to show that the Commissioner of Police who is the Detaining Authority took these facts into consideration in ordering the detention of Sri P. Venkateswarlu. In the counter-affidavit, he has categorically stated that these facts did not weigh with him in reaching the satisfaction required for issuing the detention order. He also denied the allegation that Sri P. Venkateswarlu was arrested because the Inspector General of Police was directed to file a counter in the petitions for writs of Habeas Corpus moved by him alleging that certain persons were arrested without the authority of law by the Police and were subjected to torture by them. It was asserted that he was detained because of the activities which were prejudicial to the maintenance of 'Public Order' and because the Commissioner of Police was satisfied that it was necessary to detain him for preventing him from action in that manner particularly in view of the Emergency declared by the President of India.

73. The allegations of mala fide are not supported by any other evidence. There is no allegation against the Commissioner of Police who ordered the detention, that he had caused the arrest of any person without the authority of law and had them subjected to torture. The detention of Sri P. Venkateswarlu was not ordered by the Inspector General of Police moreover merely because the Inspector General of Police was asked to file a counter in a writ petition, it is impossible to believe that he bore any grudge against the Advocate appearing in that case for filing of counter-affidavits in writ petitions by public authorities is a duly performed in the normal discharge of official duties. There are absolutely no grounds to hold that either the Inspector General of Police or the Commissioner of Police had any oblique motive for detaining Sri P. Venkateswarlu.

74. The mere fact that the detention deprives the petitioner of the right to freedom of speech and expression and freedom of association, and has thwarted his efforts to hold a convention for mobilising public opinion in favour of the commutation of death sentences against Bhoomiah and Kista Goud cannot be taken as a factor establishing mala fides or colourable exercise of power on the part of the Commissioner of Police. So long as these facts were not taken into account in reaching the satisfaction required for ordering the detention under the Act, the order would not be vitiated. The deprivation of the right of freedom of speech and association is a consequence of the order. The allegations of mala fides and colourable exercise of power are not made ut by the petitioner.

75. In view of the judgment of the Supreme Court in Makhan Singh v. State of Punjab, : 1964CriLJ217 we have no option but to hold that these petitions are not maintainable in so far as the orders of detentions are challenged as violative of such of the rights as are conferred by Part III of the Constitution as are specified in the declaration, so long as the declaration made by the President under clause (1) of Article 359 stands.

76. The only other ground of attack on one of these orders of detention pressed before us was that it is violated by mala fides and that has been held by us to be not made out.

77. These three Writ Petitions therefore fail and are accordingly dismissed. No costs. Advocate's fee Rupees 200/- each.

Writ Petitions Nos. 3361, 3444, 3445 and 3306 of 1975 :

78. In these writ petitions, the arrest and detention of the petitioners under the provisions of Sections 48 and 49 of the Andhra Pradesh Revenue Recovery Act is called in question on the grounds (1) that Sections 48 and 49 of the Act violate the Fundamental Rights conferred by Articles19 and 21 of the Constitution, (2) that the detention is in contravention of the provisions of Sections 48 and 49 of the Act, (3) that the District Revenue Officer is not empowered to order the arrest and detention of the petitioner under the provisions of the Act, and (4) that there was no proper satisfaction on the part of the District Revenue Officer in issuing the warrants for arrest and detention.

79. There is no dispute that there are arrears of revenue outstanding against each of the petitioners and that in spite of demand they have failed to pay the same. Section 5 of the Revenue Recovery Act declares that

'whenever revenue may be in arrear, it shall be lawful for the Collector or other officer empowered by the Collector in that behalf, to proceed to recover the arrear, together with interest and costs of process, by the sale of the defaulter's moveable and immovable property, or by execution against the person of the defaulter in the manner hereinafter provided.'

Section 48 vests the power in the Collector to order arrest of the defaulter in certain cases of non-payment of arrears in the following words :

'When arrears of revenue, with interest and other charges as aforesaid cannot be liquidated by the sale of the property of the defaulter, or of his surety, and the Collector shall have reason to believe that the defaulter or his surety is wilfully withholding payment of the arrears, or has been guilty of fraudulent conduct in order to evade payment. It shall be lawful for him to cause the arrest and imprisonment of the defaulter, or his surety, not being a female, as hereinafter mentioned but no person shall be imprisoned on account of an arrear of revenue for a longer period than two years, or for a longer period than six months, if the arrear does not exceed Rs. 500/- or for a longer period than three months if the arrear does not exceed Rs. 50/- provided that such imprisonment shall not extinguish the debt due to the State Government by the defaulter, or his surety.'

Section 48 of the Act which lays down the procedure for arrest reads as follows:--

'The Collector shall issue his warrant for the arrest of the defaulter, or his surety or both, not being female which shall specify his or their names, the amount of revenue due and the date on which it became payable, and the warrant shall be signed and sealed by the authority by whom it was issued. The Officer charged with the execution of the warrant shall thereupon arrest the defaulter, or his surety, or both and convey him or them to the district goal and deliver the warrant to the gaoler, which shall be a sufficient authority to him to receive the prisoner or prisoners. A copy of such warrant shall be retained by the gaoler, who shall forthwith despatch the original to the officer in charge of the gaol.'

Section 3 of the Andhra Pradesh District Collector's Power Delegation Act XXXII of 1961 empowers the State Government to authorise by issuing a notification in the Andhra Pradesh Gazette any Joint Collector or any other officer of the Revenue Department not below the rant of a Deputy Collector to exercise all or any of the powers vested by or under any law in the District Collector. In exercise of these powers the Government has issued G.O. Ms. No. 77 Revenue dated 22-1-1068 published in the Andhra Pradesh Gazette dated 15-2-1968 at pages 223 and 224 authorising the District Revenue Officer to exercise all the powers vested in the District Collector by or under the laws mentioned in the Annexure relating to matters enumerated in List II or List III in the Seventh Schedule to the Constitution and having the force of law in any part of the State of Andhra Pradesh. In the said annexure, Item 66 is the Andhra Pradesh Revenue Recovery Act II of 1864. The power vested in the District Collector under Sections 48 and 49 to issue a warrant for the arrest of a defaulter or a surety or both in case of wilful or fraudulent non-payment of arrears of revenue is thus vested in and exercisable by the District Revenue Officer by virtue of the above notification. The warrant of arrest issued under the hand of the District Revenue Officer for the arrest of these detenus therefore does not suffer from lack of jurisdiction.

80. In order to determine whether the provisions of Sections 48 and 49 of the Act have been contravened by the District Revenue Officer in ordering the arrest and detention of the petitioners, it is necessary to examine as to what are the requirements of Sections 48 and 49. Firstly there should be an arrear of land revenue which cannot be liquidated by the sale of the property of the defaulter or of his surety and secondly the Collector should have reason to believe that the defaulter or his surety is wilfully or has been guilty of fraudulent conduct in order to evade payment. It is necessary that both those conditions be satisfied before the arrest of a defaulter of land revenue could be ordered. Once these two conditions are satisfied then a warrant of arrest may be issued and the defaulter imprisoned for the prescribed period. Certain other restrictions are imposed under Section 49 with which we are not concerned in these writ petitions.

81. In Collector of Malabar v. E. Ebrahim, : 1957CriLJ1030 dealing with the provisions of Section 48 of the Madras Revenue Recovery Act the Supreme Court observed that before the Collector can proceed to arrest the defaulter not merely the condition that the arrears cannot be liquidated by the sale of the property of the defaulter should be satisfied but the Collector should have reason to believe that the defaulter is wilfully withholding the payment or has been guilty of fraudulent conduct in order to evade the same.

82. It is contended that neither of these conditions are satisfied in the case of the petitioners. We shall examine this aspect with reference to the case of each of the petitioners separately. Before that we may refer to the contention of the petitioners that the provisions of Sections 48 and 49 are violative of the fundamental rights guaranteed under Articles 19 and 21 of the Constitution. For the reasons already recorded above, even if Sections 48 and 49 of the Act violate any such Fundamental Right, the petitioners are proscribed from moving the Court for enforcement of such right or complain of infringement of such right during the period of the declaration under clause (1) of Article 359 of the Constitution. That apart, the vires of these provisions is no longer res integra. In Purushottam Govindji Halai v. B.M. Desai, AIR 1957 SC 20 = (1956 Cri LJ 129) the Supreme Court dealing with the question whether there was any violation of Articles 14 and 21 of the Constitution where the detenu had been arrested under Section 13 of the Bombay Land Revenue Act in pursuance of a warrant of arrest issued for recovery of the demand certified under Section 46 (2) of the Indian Income-tax Act held that, it did not, as Section 13 of the said Act constituted a procedure established by law. Dealing with the provisions of the Madras Recovery Act itself the Supreme Court in Collector of Malabar v. E. Ebrahim, : 1957CriLJ1030 held :

'The arrest was not in connection with any allegation or accusation of any actual or suspected or apprehended commission of any offence of a criminal or quasi criminal nature. It was readily an arrest of a civil debt in the process or mode prescribed by law for recovery of arrears of land Revenue.'

83. Thereafter referring to and having regard to the previous decisions of that Court it declared :

Neither Section 48 of the Act nor Section 46 (2) of the Indian Income-tax Act violates Articles 14, 19, 21 and 22 of the Constitution.'

Thus Section 48 of the Act are neither invalid nor is the challenge to their validity on the ground that they violate Articles 19 and 21 of the Constitution entertainable by this Court during the period of declaration under Article 359(1). The warrant of arrest and detention issued in conformity with those provisions is also therefore immune from attack on that ground.

84. Now turning to the contention that the District Revenue Officer has not applied his mind to the case of each of the detenus to ascertain if the conditions laid down by the provisions of Sections 48 and 49 are satisfied, we find that it is wholly unsustainable.

85. The detenus M/s. Govinda Rao Kamaraju and Paparao have admittedly defaulted in paying the arrears due from them in respect of some Excise contracts. All these three detenus were partners in the arrack contract and each had a 1/3rd share therein. They are jointly and severally liable. It is found that no solvency certificates were obtained from these defaulters at the time of auction of these arrack shops for Excise years 1971 and 1972. It is stated o their behalf that due to illicit distillation and sale of liquor they had suffered loss and that although they had drawn the attention of the department even during the currency of the lease, the Department Officials did not take any action. The consequent loss suffered by them was so heavy that they had to close down their shops. These objections are, however, entirely beside the point and wholly untenable in these proceedings under Article 226 challenging the proceedings taken by the competent authorities under Sections 48 and 49 of the Revenue Recovery Act. The fact remains that Rs.27,000/- are due from them to the Government which amount the Respondents are entitled to recover as arrears of land Revenue and all of them being partners, each one of them is jointly and severally liable to repay the entire arrears. The respondents are only seeking to recover that amount proportionately from each of the defaulters.

86. It is stated on behalf of Sri T. Govinda Rao one of the defaulters that he has no income or property to pay the arrears and therefore a warrant for this arrest and detention could not be issued.

87. In the counter-affidavit of the District Revenue Officer, the statement that the defaulter has no income or property is emphatically denied and it is stated that the inquiry revealed that the detenu is having five houses in the name of his wife in Golipet of Borampe Village and that three of his sons are employed drawing Rs.500/-, Rs.400/- and Rs.200/- respectively and that the detenu himself is getting pension from the Government. It is further stated that although these houses do not stand in his name, he is the real owner of all these houses and that he is in a position to pay the arrears but wilfully withholding payment.

88. On behalf of the detenu D. Kamaraju a similar plea is raised and it is asserted that he too has no income or property to pay the arrears. But in the counter-affidavit, it is stated that the detenue who is the Sarpanch of the village for the last 8 years has a 1/6th share in the joint family property consisting of Ac. 13.05 cents wet land and Ac. 3.31 cents of dry land and that although he is in a position to pay the arrears he is wilfully withholding payment. In the reply affidavit, the detenu Kamaraju stated that to discharge the debt which he had incurred on account of the loss he suffered by him in the arrack business he had given up his hare in his lands in favour of his father which he had got on partition and that at present he had no property. However, no document was produced to substantiate his statement. Rights of immovable property could not be relinquished except under a registered document. This claim of the petitioner is neither true nor tenable in law.

89. On behalf of the other detenu also a similar vague plea that he has no property or income is taken and in the counter-affidavit while denying that statement it was asserted that even since the detenu become a defaulter, he is doing arrack business as a benami partner in arrack shops of Baruva, Bethala and Pathapatnam villages. In the reply affidavit, this allegation was denied.

90. It is contended on behalf of the detenus that unless it is found that the defaulter has property and that by the sale of such property of the defaulter the arrears cannot be liquidated no arrest could be ordered nor non-payment of the arrears. In our view, even if it be assured, as asserted by the petitioners, that they have no property, although it is not so established it follows that the arrears due from them cannot be liquidated by the sale of their property. When there is no property of the defaulter, the question of bringing that property to sale or the Collector being satisfied that the arrears cannot be liquidated by the sale of the defaulters could (not ?) arise. A Bench of this Court in W.P. No. 3802 of 1974 dated 1-8-1974 repelled the contention that the possession of property by a defaulter was a condition precedent to action under Section 48 and held :

'What the clause contemplates is not the existence but the non-existence of the property of the defaulter by the sale of which the arrears of revenue can be liquidated. That may be either because the defaulter possesses no property at all or because the property is inadequate and the amount realised by any sale of the property cannot liquidate the arrears of revenue. In other case the requirement of Section 48 is fulfilled if the other requirement that the defaulter is either wilfully withholding the payment of arrears or has been guilty of fraudulent conduct in order to evade payment is satisfied.

We are of the opinion this decision lays down the correct position of law and we are in entire agreement with that view. In these four Writ Petitions either because the defaulters do not have any property as stated by them or because as stated in the counter-affidavit, the defaulters own properties but they cannot be brought to sale for the reasons stated therein the result is the same that the arrears cannot be liquidated by the sale of the property of the defaulter. The first requirement of Section 48 must therefore be found to have been satisfied in these cases.

91. It was contended before us that the District Revenue Officer has merely signed the warrants for the arrest of the defaulters mechanically without applying his mind. He has not even decided whether the defaulters were wilfully withholding the payment of arrears or guilty of fraudulent misconduct in order to evade payment. That according to the learned counsel for the petitioners, Mr. Panduranga Rao, is evidenced by the fact that in the warrants of arrest out of the two alternatives viz., 'wilfully withholding the payment of arrears' or 'has been guilty of fraudulent conduct in order to evade payment' none have been struck off and that no separate order was made before issuing the warrant. This argument is based on the assumption of an erroneous premise that apart from signing the warrant of arrest the District Revenue Officer did not record any order. When the court enquired the learned Public prosecutor whether or not there is such an order, he stated that there is no such order. However, on a perusal of the file, the Court could trace out the order of the District Revenue Officer in which he categorically found that the defaulters were wilfully withholding the payment of arrears. The mere fact that open of the two alternatives was not struck off from the prescribed pro forma of the warrant of arrest signed by the District Revenue Officer it cannot be said that the District Revenue Officer did not apply his mind in issuing the order and has mechanically signed it. That the District Revenue Officer has considered the facts of the case of each of the defaulters and fond that the arrears cannot be liquidated by the sale of the property of the defaulter and that he was wilfully withholding the payment is clear from his order which formed the basis for and which has preceded the issue of the warrant. A perusal of the record shows that the satisfaction reached by the District Revenue Officer cannot be said to be unsupported by any material whatsoever; in fact it appears to be highly appropriate.

92. It was also contended that before issuing a warrant for arrest and detention of a defaulter, under Section 48 a notice must be issued to the defaulter and as the District Revenue Officer has not issued any notice specifying the arrears due and calling upon the petitioner to show cause why he should not be arrested, the warrant is illegal and without jurisdiction. Sections 48 and 49 do not in terms lay down that any such notice should be issued. That provision is held to be not violative of any provision of the Constitution or otherwise ultra vires for not providing for a notice to the defaulter vide., Collector of Malabar v. E. Ebrahim : 1957CriLJ1030 .

93. It is, however, urged that such a notice should be issued in view of the principles of natural justice. The petitioners who do not deny the existence (sic) complain of any violation of the principles of natural justice. Section 48 vests the Collector with the power to issue a warrant of arrest of the defaulter only if he has reason to believe that the arrears cannot be liquidated by the sale of the defaulters' property and that he is either withholding the payment of arrears or guilty of fraudulent conduct in order to evade payment. When the Collector is enjoined to satisfy himself abut the circumstances in which he can reasonably believe that these two conditions are satisfied, it cannot be said that the power vested in the Collector to take action under Sections 48 and 49 of the Act is arbitrary or violates the principles of natural justice merely because the defaulters are not given prior notice of the proposed action.

94. In Writ Petition No. 3306 of 1975 in addition to the above points of law, it was averred that the District Revenue Officer had not found that

'the detenu had the necessary means or funds to discharge the arrears of revenue and in spite of the said mean or resources, he was wantonly evading payment.'

It is the petitioner's case that he was given in adoption to one t. Jagannadhamurthy and that his adoptive father had disowned him and that he has no property. In the counter-affidavit, these averments re denuied and a further averment was made that the defaulter was given notice and his statement was recorded. That statement disclosed that the defaulter had entered into an agreement with the Government with the fraudulent intention of deceiving it by concealing the real contractors among whom his father also was one, who had sufficient property. The District Revenue Officer in his counter-affidavit also stated that he was satisfied that the defaulter was wilfully withholding the payment of arrears.

It is seen from the record placed before the Court that the statement of the defaulter was recorded by the Tahsildar during the core of the inquiry. In that statement the defaulter admitted that these arrack shows were obtained by him at a public auction during the year 1970-71 and that he did that business as in partnership with ten others and that he did not offer any surety or security. He also admitted that he is managing an Automobile and an Electrical shop. This shop is in the name of his wife. He deposed that there was a settlement between himself and his adoptive father through court and that he received Rs.10,000/- under that settlement. He has not paid a single pie towards the arrears due from him to the Government. Even that settlement appears to be a fraudulent one arrived at with a view to evade payment of arrears due from him. In view of these circumstances, the District Revenue Officer in our view, rightly came to the conclusion that the defaulter was wilfully withholding payment of Revenue and has also been guilty of fraudulent conduct with a view to evade payment. It may not be out of place to notice that even earlier this defaulter had filed a Writ Petition No. 838 of 1972 disputing the arrears of revenue. That Writ Petition was dismissed on 19-9-1973. In spite of its dismissal, the petitioner did not pay any portion of the amount due. Both in law and on facts the action taken by the respondents was perfectly justified. Thus writ petition is absolutely without any merit.

95. In view of the foregoing discussion these four writ petitions are also dismissed with costs. Advocate's fee Rs.250/- in each.

96. Petitions dismissed.


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