1. This is a petition filed by the petitioner under Article 226 of the Constitution of India for a direction in the nature of habeas corpus challenging his detention by the respondents under the provisions contained in the Maintenance of Internal Security Act.
2. According to the petitioner, he was detained by orders of the District Magistrate, Indore, on 2-7-1975 and a declaration as contemplated under the amended Act was issued on 2-7-1975.
3. The respondents in their reply have raised certain preliminary objections, At the hearing learned Deputy Government Advocate only argued about the preliminary objections. The main objections raised by the respondents at the time of hearing are :
(1) That in view of the proclamation of emergency by the President on 25th June, 1975 and in view of the subsequent order of the President under Article 359 of the Constitution dated 27th June, 1975, the rights guaranteed to the petitioner under Articles 14, 21, 22 and 19 of the Constitution are suspended; and because of the order of President dated 27th June, 1975, their right to move the Court also has been suspended, therefore, these petitions cannot be entertained.
(2) That the Maintenance of Internal Security (Amendment) Ordinance, which subsequently was passed into an Act, by Section 7 thereof, has suspended any right to liberty under any other law during the continuance of the Emergency and on this basis, therefore, it was contended that this petition does not deserve to be considered on merits.
4. For the petitioner it was contended that although by proclamation of emergency the rights of the petitioner under Article 19 are in a state of suspension, and by a subsequent order of the President under Article 359 of the Constitution his right to move the Court for enforcement of his rights under Articles 14, 21 and 22 has been suspended, still, the petitioner can come to the Court and pray that the orders passed against him are not in accordance with the Act under which they purport to have been passed. It was also contended that the Supreme Court in the decisions reported in Makhan Singh v. State of Punjab, AIR 1964 SC 381; K. Ananda Namhiar v. Chief Secy, to Govt. of Madras, AIR 1966 SC 657 and Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, has considered this aspect of the matter at length and it has been held that even when the right to approach the Court for enforcement of rights under Articles 14, 21 and 22 is suspended, still, the court had jurisdiction to examine the orders and find out if they have been passed in accordance with the Act and are not a mere camouflage or an abuse of the process of law.
5. It was further contended on behalf of the petitioner that the decision reported in Shivkant Shukla v. Addl. District Magistrate, Jabalpur, 1975 MPLJ 662 = (1975 Cri LJ 1809), has considered the provisions of the Maintenance of internal Security Act as amended including the provisions in Section 16-A and held that this court has jurisdiction to hear a petition under Article 226 of the Constitution and to examine the petition although to a limited extent. It was therefore contended that this decision apparently runs contrary to the view taken in the decision of this Court in Laxminarayan v. State of M. P., Misc. Petn. No. 138 of 1975, decided at Indore on 2-9-1975.* It was therefore contended that the matter deserves to be referred to a larger Bench.
6. It was also contended that Section 7 of the Maintenance of Internal Security (Amendment) Act which has addedSection 18 to the Act does not in any way take away the jurisdiction of this Court and under Article 226 of the Constitution this Court would be competent to examine as to whether the petitioner has been detained under the provisions of that Act. It is exactly the contention which was considered by the Division Bench in Shivkant Shukla v. Addl. District Magistrate, (1975 Cri LJ 1809) (Madh. Pra.) (supra).
7. This Conn in Laxminarayan v. State of M. P.* (supra) held that in view of the declaration of emergency and the President's order, the petitioner is not left with any right and therefore he could not come to this Court for protection of his right.
8. On 25th June, 1975 the President by an order quoted below proclaimed emergency :
'In exercise of the powers conferred by Clause (1) of Article 352 of the Constitution I, Fakhruddin Ali Ahmed, President of India by this Proclamation declare that a grave emergency exists whereby the Security of India is threatened by internal disturbance.
NEW DELHI Sd/- F. A. Ahmed,The 25th June, 1975. President.(Published in Extraordinary Gazette dated 26-6-75)'.
On 27th June, 1975 another order was issued by the President under Article 359(1) of the Constitution which reads :
'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, Article 21 and Article 22 of the Constitution and all proceedings pending in any court for the enforcement of the abovementioned rights shall remain suspended for the period during which the Proclamation of Emergency made under Clause (1) of Article 352 of the Constitution on the 3rd December, 1971, and on the 25th June, 1975 are both in force.
This order shall extend to the whole of the territory of India.
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.'
It is clear from these two orders that because of the proclamation of emergency Article 19 automatically stands suspend-ed as contemplated under Article 358 of the Constitution. Article 358 reads :
'358. While a Proclamation of Emergency is in operation, nothing in Article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in the Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.'
9. A perusal of this article makes it clear that during a proclamation of emergency the restriction on the power of State to take legislative or executive action in contravention of Article 19 is withdrawn. Consequently, the executive order or legislative action of any State or the Centre cannot be challenged on the ground that it is in contravention of Article 19 of the Constitution. In AIR 1964 SC 381 (supra), it was observed,--
'It would be noticed that as soon as a Proclamation of Emergency has been issued under Article 352 and so long as it lasts, Article 19 is suspended and the power of the legislatures as well as the executive is to that extent made wider. The suspension of Article 19 during the pendency of the proclamation of emergency removes the fetters created on the legislative and executive powers by Article 19 and if the legislatures make laws or the executive commits acts which are inconsistent with the rights guaranteed by Article 19, their validity is not open to challenge either during the continuance of the emergency or even thereafter. As soon as the Proclamation ceases to operate, the legislative enactments passed and the executive actions laken during the course of the said emergency shall be inoperative to the extent to which they conflict with the rights guaranteed under Article 19 because as soon as the emergency is lifted, Article 19 which was suspended during the emergency is automatically revived and begins to operate. Article 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 Article 19 is complete during the period in question and legislative and executive action which contravenes Article 19 cannot be questioned even after the emergency is over.'
The President's order issued under Article 359 provides that no action in a court of Law could be taken for enforcement of the rights conferred under Articles 14, 21 and 22. Apparently, therefore, the contention raised by the State Government is that the orders of. detention passed against the petitioners could not be challenged on the ground that they are in contravention of Article 19 in view of the proclamation of emergency and they could not be challenged in respect of Articles 14, 21 and 22 as the President's order under Article 359(1) is in force and suspends the right to approach the court. It is no doubt true that the President's order under Article 359(1) does not suspend the rights conferred under Articles 14, 21 and 22 but it suspended the rights of the petitioners to move a court of law for enforcement of these rights. ,
10. Under Article 226 of the Constitution a petitioner can move this court for enforcement of his rights under Part III or for any other purpose :
'226 (1). Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(1A). The power conferred by Clause (1) to issue directions, orders or writs to any Government authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(2) The power conferred on a High Court by Clause (I) or Clause (1A) shall not be in derogation of the power conferred on the Supreme Court by Clause (2) of Article 32.'
It is therefore clear that 'for any other purpose' should be referable to some right of the petitioners which has been taken away. In fact, the right to liberty is only available under Article 19 and if that article itself is suspended and the action of the State Government, legislativeand executive both, is saved, even if it is in contravention of Article 19, there is hardly any other right which could be claimed by the petitioners as the right to liberty; and therefore there is no right which could be said to have been infringed and the petitioners will have no locus standi to approach this Court by a petition for habeas corpus.
11. This has been the consistent view of their Lordships of the Supreme Court. As early as in 1952 their Lordships observed in State of Orissa v. Madan Gopal, AIR 1952 SC 12.--
'The language of the Article shows that the issuing of writs or directions by the Court is founded only on its decision that a right of the aggrieved party under Part III of the Constitution (fundamental rights) has been infringed. It can also issue writs or give similar directions for any other purpose. The concluding words of Article 226 have to be read in the context of what precedes the same. Therefore the existence of the right is the foundation of the exercise of jurisdiction of the Court under this Article.'
Similarly, in Nainsukh Das v. State of U. P., AIR 1953 SC 384, while considering the scope of Article 32 of the Constitution, their Lordships of the Supreme Court observed that the petitioner could only come for enforcement of the fundamental rights conferred by Part III of the Constitution. In State of Orissa v. Ram Chandra Dev, AIR 1964 SC 685, their Lordships considered the jurisdiction of the High Court under Article 226 of the Constitution and observed :--
'On the merits, the position is absolutely clear. Under Article 226 of the Con-stitution, the jurisdiction of the High Court is undoubted very wide. Appropriate writs can be issued by the High Court under the said article even for purposes other than the enforcement of the fundamental rights and in that sense, a party who invokes the special jurisdiction of the High Court under Article 226 is not confined to cases of illegal invasion of his fundamental rights alone. But though the jurisdiction of the High Court under Article 226 is wide in that sense, the concluding words of the article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is illegally invaded or threatened. The existence of a right is thus the foundation of a petition under Article 226. The narrow question which fallsfor our decision in the present appeals is whether the respondents can be said to have proved any legal right in respect of the properties of which they apprehended they would be dispossessed by the appellant.'
In D.A.V. College, Bhatinda v. State of Punjab, AIR 1971 SC 1731, their Lordships of the Supreme Court have observed : that a petition under Article 32 in which petitioners make out a prima facie case that their fundamental rights are either threatened or violated will be entertained by that Court and that it is not necessary for any person who considers himself to be aggrieved to wait till the actual threat has taken place. Similar is the view expressed in context of Article 32 in Nagar Rice and Flour Mills v. N. Teekappa Gowada & Bros., AIR 1971 SC 248. These decisions, therefore, clearly lay down that before a petitioner can seek relief under Article 226 of the Constitution, he must make out a subsisting right which is being interfered with and in absence of such a right the petitioner will have no locus standi to file a petition before this Court under Article 226, apart from the fundamental rights, the petitioner also could seek protection of any other statutory right; but in absence of any such right in existence, the petitioner cannot come to this court and seek relief under Article 226.
12. On behalf of the petitioner, however, reliance was placed on the decision reported in Makhansingh v. State of Punjab (AIR 1964 SC 381) (supra) and the subsequent decisions of their Lordships in K. Ananda Namibiar v. Chief Secy., Govt. of Madras (AIR 1966 SC 657) (supra) and Ram Manohar Lohia v. State of Bihar (AIR 1966 SC 740) (supra). In Makhan-singh's case their Lordships observed :--
'It still remains to consider what are the pleas which are now open to the citizens to take in challenging the legality or the propriety of their detentions either under Section 491(1)(b) of the Code, or Article 226(1) of the Constitution. We have already seen that the right to move any court which is suspended by Article 359(1) and the Presidential Order issued under it is the right for the enforcement of such of the rights conferred by Part III as may be mentioned in the order. If in challenging the validity of his detention order the detenu is pleading any right outside the rights specified in the order, his right to move any court in that behalf is not suspended, because it is outside Article 359(1) and consequently outside the Presidential Order itself. Let us take a case-where a detenu has been detained in violation of the mandatory provisions of Act. In such a case, it may be open to the detenu to contend that his detention is illegal for the reason that the mandatory provisions of the Act have been contravened. Such a plea is outside Article 359(1) and the right of the detenu to move for Ms release on such a ground cannot be affected by the Presidential Order.'
These observations, therefore, clearly go to show that their Lordships felt that the detenu is not deprived of any right outside the right specified in the order and outside the order his right to move the Court in that behalf is not suspended because it is outside Article 359(1) and consequently outside the Presidential order itself although what this right is, has not been indicated; but further observations go to show that the petitioner could challenge the detention to be illegal on the ground that mandatory provisions under the Act have not been followed. Similarly, while considering the question in K. Ananda Nambiar v. Chief Secy to Govt. of Madras, (AIR 1966 SC 657) (supra) their Lordships felt that the provisions of the Defence of India Act or Rules could be questioned in a petition, although the fundamental rights are in suspension. In Makhansingh's case (supra), their Lordships also considered the question of existence of Section 491(1) (b) of the Code of Criminal Procedure even bet fore Article 226 of the Constitution or Article 32 were enacted. It appears, therefore, from these decisions, that their Lordships felt that apart from the right of the petitioner under Articles 19, 21 and 22, which are in a state of suspension on account of declaration of emergency and the President's order under Article 359, still some rights existed; and to protect those rights a detenu could come to the court challenging the order of detention on the ground of non-compliance of the provisions of the Act or on the ground of mala fides although none of these decisions clearly state the right which the detenu is trying to protect; and it appears that it is in view of these decisions that Section 7 of the Maintenance of Internal Security (Amendment) Act has been enacted by which a new Section (Section 18) has been added which reads,--
'18. No person (including a foreigner) detained under this Act shall have any right to personal liberty by virtue of natural law or common law, if any.'
It is clear therefore, that what the legislature enacted by enacting this section was to withdraw any right to personal liberty which might be in existence on account of natural law or common law apart from the rights under Part III.
13. It was contended that this section comes into play only when a person is detained under that Act, i.e. Maintenance of Internal Security Act. Admittedly, the petitioner is detained under the provisions of this Act. The provisions as amended up-to-date clearly rule out any scope for finding out as to whether the power has been exercised under this Act or not except when an order as contemplated has been passed. Under the provisions of this Act as amended now, there is hardly any thing which could be said once an order of detention is passed under the provisions of this Act and this is not in dispute that the petitioner has been detained under the Act. Consequently, this section comes into operation even if there was any other right, that right also ceased to have effect and therefore the petitioner has no right left for protection for which he could come to this Court under Article 226.
14. This aspect of the matter, it appears, was not before the Division Bench in the case reported in Shivkant Shukla v. Additional District Magistrate, 1975 MPLJ 662 = (1975 Cri LJ 1809). In that decision the view taken is that by enacting a provision in the Maintenance of Internal Security Act, the Court under Article 226 of the Constitution could not be affected. Their Lordships observed.
'To sum up : Under the Constitution, the constitutional remedies given by Article 32 or 226 cannot be barred by any legislation, short of amendment of the Constitution itself. The new Criminal Procedure Code, 1973, has deleted the old Section 491, presumably because it was felt that there was no longer any justification for keeping it on the statute book. That being so, the power to issue a writ of habeas corpus is not a statutory right. Nor is it based upon the common law or any natural law.'
To these observations, there is no dispute. Nor was the question of jurisdiction raised before this Court. But admittedly, the question of the right of the petitioner to move the Court under Article 226 was not considered in this decision, and in this view of the matter, in our opinion, there is no conflict between the view taken bythis court in Laxminarayan's case* (supra) and this decision. This decision also refers to two other Division Bench decisions of this court which took the same view as in Laxminarayan's case.
15. It was at length argued that in a democracy rule of law prevails and the legislature as well as the executive authorities have to act in accordance with law. In support of this proposition a number of decisions were referred to including Eshugbayi v. Officer Administering the Govt. of Nigeria, AIR 1931 PC 248; Emperor v. Sibnath Banerjee, AIR 1945 PC 156; Emperor v. Vimlabai Deshpande, AIR 1946 PC 123 and Bidi Supply Co. v. Union of India, AIR 1956 SC 479. It cannot be disputed that in a democracy the rule of law is to prevail and the authorities are expected to act in accordance with law. At the same time it cannot he lost sight of that if the petitioner has no right to protect, this court, exercising jurisdiction under Article 226 could not entertain a petition and examine whether the executive authority has acted in accordance with law or not. Learned counsel arguing for the petitioner contended that in such a situation there is no remedy left to the petitioner. It is not necessary for this court to go into that question; but admittedly, if any authority acts beyond the powers conferred on it by law, it could not be said that there will be no remedy available. However, as regards the extraordinary remedy under Article 226, it cannot be disputed that the remedy could only be made available to a person whose right is sought to be protected.
16. It was also contended that although ordinarily for all writ petitions a person whose right is to be protected has to come to this court, but, it was argued that for habeas corpus this rule is not strictly followed. What exactly was suggested was that in a petition for habeas corpus sometimes courts have entertained petitions by any friend or relation complaining about the illegal detention of A citizen. But on this basis it could not be argued that petition under Article 226 would be available even if no right of A citizen is to be protected. Even where third party's petition is accepted by Court lor a writ of habeas corpus, what is necessary is bo allege that somebody's (citizen's) some subsisting rights are being interfered with which deserve to be protected. Therefore, this argument also can be of no assistance to the case of petitioner.Some of the decisions referred to by learned counsel for the petitioner have not considered the question of existence of a right. It appears that the decisions assumed the right of citizen which needs to be protected. The cases specially consider the question of right of a petitioner or any one which needs to be protected, have been referred to above. A reference was also made to the decision of the Delhi High Court in Kuldip Nayyar's case. But in that judgment also the question about the existence of a right for protection of which a petition under Arti-cle 226 of the Constitution could be filed has not been considered at all.
17. Consequently, in our opinion, the petitioner has no locus standi to file this petition. It is therefore dismissed. However, if the petitioner is still in detention after the emergency is withdrawn or the order of the President ceases to have effect, he shall be free to file a fresh petition to this Court.
18. Looking to the questions arising in this matter it is clear that the case involves substantial questions of law of public importance and also substantial questions of law as to the interpretation of the Constitution. Therefore, the petitioner is granted a certificate under Articles 132 and 134(1)(c) of the Constitution.