A.P. Sen, J.
1. This Order shall also govern Miscellaneous Petition Nos. 986, 994, 996, 1000 and 1006, all of 1974.
These petitions have been heard on a preliminary point relating to jurisdiction. It would be convenient to deal with them by this common order,
2. The petitioners challenge their detention under orders of detention made by the District Magistrates of Jabalpur and Bhopal under Section 3(1) (c) of the Maintenance of Internal Security Act, 1971, as amended by Ordinance No. 11 of 1974.
3. On 16th November, 1974, the President of India issued the following order tinder Article 359(1) of the Constitution:
In exercise of the powers conferred by Clause (1) of Article 359 of the Constitution, the President hereby declares that:
(a) The right to move any Court with respect to orders of detention which have already been made or which may hereafter be made under Section 3 (1) (c) of the Maintenance of Internal Security Act, 1971, as amended by Ordinance 11 of 1974, for the enforcement of the rights conferred by Article 14, Article 21 and Clauses (4), (5), (6) and (7) of Article 22 of the Constitution, and
(b) All proceedings pending in any Court for the enforcement of any of the aforesaid rights with respect to orders of detention made under the said Section 3 (1) (c), shall remain suspended for a period of six months from the date of issue of this order or the period during which the proclamation of emergency issued under Article 352(1) of the Constitution on December 3, 1971 is in force, whichever period expires earlier.
(2) This order shall extend to the whole of the territory of India.
4. It is urged by the learned Government Advocate on behalf of the respondents that in terms of the Presidential Order, when the enforcement of the fundamental rights under Articles 14, 21 and Clauses (4), (5), (6) and (7) of Article 22 of the Constitution is suspended, it would not be proper to so construe Article 226 of the Constitution as to afford the petitioners, who are being detained under Section 3 (1) (c) of the Maintenance of Internal Security Act, 1971, as amended by Ordinance No. 11 of 1974, the remedy of writ of habeas corpus whose enforcement will, in fact, result in enforcement of the petitioners' suspended fundamental rights under Article 21 of the Constitution, the Presidential Order under Article 359(1) notwithstanding. He, therefore, raises a preliminary objection that the, proceedings are liable to be suspended for a period of six months from the date of the issue of the Presidential Order or the period during the Proclamation of Emergency issued under Article 352(1) on 3rd December, 1971, is in force, whichever period expires earlier.
5. In support of the objection, the learned Government Advocate further con-tends that the Maintenance of Internal Security Act, 1971 is a law enacted by the Parliament under Article 22(7) of the Constitution. The submission is that the Provisions of the Act contain nothing but the guarantees embodied under Articles 21 and 22 and the enforcement of these rights having been suspended, the orders of detention were not open to collateral attack on any ground whatever. It is said that, in case of preventive detention whenever the detenu challenges the validity of the order of detention on whatever ground, he is in effect seeking to enforce nothing but his fundamental right of personal liberty guaranteed under Article 21. The enforcement of Article 21 having been suspended, it is said, the Court has no jurisdiction to entertain his plea.
6. In order to judge the validity of the objection, we must first set out the earlier Presidential Order issued under Article 359(1) of the Constitution on 3rd November, 1962, as amended by the Presidential Order dated 11th November, 1962. This is how it reads:
In exercise of the powers conferred by Clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person to move any Court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under Clause (1) of Article 352 thereof on the 26th October, 1962, is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962, (4 of 1962) or any rule or order made thereunder.
It will be noticed that the present Presidential Order is more or less in similar terms, except that it refers to detentions under the Maintenance of Internal Security Act, 1971, and provides for suspension of all proceedings fop the enforcement of the Constitutional guarantees.
7. In Makhan Singh v. State of Punjab AIR 1964 SC 381 : (1964) Cri LJ 269, their Lordships of the Supreme Court had to consider the true scope and effect of Article 359(1) and the Presidential Order, and their impact not only upon Articles 32 and 226 of the Constitution but also upon Section 491(1)(b), of the Code of Criminal Procedure, all of which confer upon the detenus the remedy of a writ of habeas corpus, so long only as the President refrains from exercising his power under Article 359(1). In their majority judgment, delivered by Gajendragadkar, J., their Lordships took the view that for the period during which the Proclamation of Emergency under .Article 352 (1) was in force or for such shorter period as may be specified, the citizen was deprived of his right to move any Court for the enforcement of such of the rights in Part HI of Constitution as may be mentioned in the Presidential Order, and all proceedings in any Court for the enforcement of the rights so mentioned, shall remain suspended. They further held that the challenge to the validity of the Presidential Order was ill-founded.
8. Their Lordships assumed that despite the issue of the Presidential Order under Article 359(1), the fundamental rights guaranteed under Articles 21 and 22 were not suspended, but held that what was suspended was the enforcement of the said rights during the prescribed period. In dealing with the question, their Lordships observed:
In other words, Article 359(1) and the Presidential Order issued under it may constitute a sort of moratorium or a blanket ban against the institution or continuance of any legal action subject to two important conditions. The first condition relates to the character of the legal action and requires that the said action must seek to obtain a relief on the ground that the claimant's fundamental rights specified in the Presidential Order have been contravened and the second condition relates to the periods during which this ban is to operate. The ban operates either for the period of the Proclamation or for such shorter period as may be specified in the Order.
9. Their Lordships then went on to consider what pleas were still open to the citizens to take in challenging the legality or propriety of their detention, and stated:
(i) 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.
(ii) Where the detenu moves the Court for a writ of habeas corpus on the ground that his detention has been ordered mala fide.
(iii) If a detenu contends that the operative provision of the law under which he is detained suffers from the vice of excessive delegation and is, therefore, invalid.
10. In Rammanohar Lohia v. State of Bihar AIR 1966 SC 740 : 1966 Cri LJ 608; K. Ananda v. Chief Secretary, Government of Madras AIR 1966 SC 657 : 1966 Cri LJ 586 and Durgadas v. Union of India AIR 1966 SC 1078 : 1966 Cri LJ 812, their Lordshis, while reiterating the view taken in Makhan Singh's case (1964) 1 Cri LJ 269 (SC) (supra), showed concern in cases of deprivation of personal liberty by preventive detention of citizens, and indicated that it will still be open to the citizen, despite the Presidential Order under Article 359(1), to take the following grounds of challenge, namely-
(i) That, the order is ultra vires, e. g., that, it appears, on the face of the order, that it has been issued by an authority not empowered to pass it, or in excess of the power delegated to him, or that the power has been exercised inconsistently with the conditions prescribed in that behalf, or, that the order is not in strict compliance with the Act;
(ii) That, the order is mala fide, e.g., by showing-
(a) that the authority who issued the order did not apply his mind to the relevant considerations, e. g., whether the order' mentions all the grounds specified in the Act and in the affidavit of the authority only some of them are relied? on, or mentions 'law and order' instead of 'public order' as the ground,
(b) that the authority was actuated by improper motives;
(iii) That the grounds mentioned in the order are irrelevant, or, that there is no proximate connection between the grounds and? the object which the legislature had in view;
(iv) That the Act or the Rules suffer from the vice of excessive delegation.
11. The learned Government Advocate, however, strenuously contends that preventive detention under the Maintenance of Internal Security Act, 1971 stands on a different footing. This he points out, was clearly indicated in the majority judgment in Makhansingh's case (supra). He particularly draws our attention to the following observations of Gajendragadkar, J.:
Assuming that the Presidential Order had suspended the citizens' right to move any court for enforcing their fundamental rights; under Articles 14, 21 and 22 and had made-the said order applicable to persons detained under the Preventive Detention Act of 1950, could that Order have effectively prevented the detenus from contending that their detention was illegal and void? In such a case, if the detenu was detained under the Preventive Detention Act of 1950 and he challenged the validity of his detention on the ground that the relevant provisions of the said Act had not been complied with, would his challenge be covered by Article 359(1) and the Presidential Order issued under it? In other words, can it be said that in making the said challenge he was enforcing his fundamental rights specified in the Presidential Order? If it is held that he was challenging the validity of his detention because the mandatory provisions of the Act had not been complied with, his challenge may be outside Article 359(1) and the Presidential Order. If, on the other hand, it is held that, in substance, the challenge is to enforce his aforesaid fundamental rights, though he makes the challenge by reference to the relevant statutory provisions of the Act themselves, that would have brought his challenge, within the prohibition of the Presidential Order, Normally, as we have already held, a challenge against the validity of the detention on the ground that the statutory provisions of the Act under which the detention is ordered have not been complied with, would fall outside Article 359(1) and the Presidential Order, but the complication in the hypothetical case under discussion arises because unlike other provisions of the Act, the mandatory provisions in question essentially represent the fundamental rights guaranteed by Article 22 and it is open to argument that the challenge in question substantially seeks to enforce the said fundamental rights. In the context of the alternative argument with which we are dealing at this stage, it is unnecessary for us to decide whether the challenge in question would have attracted the provisions of Article 359(1) and the Order or not.
12. The learned Government Advocate further contends that in determining the question as to whether a particular proceeding falls within the mischief of the Presidential Order or not, what has to be examined is not so much the form which the proceeding has taken, or the words in which the relief is claimed, as the substance of the matter and consider whether before granting the relief claimed by the citizen, it would be necessary for the Court to enquire into the question whether any of his specified fundamental rights have been contravened. He points out the following observations of Gajendragadkar, I.:
If any relief cannot be granted to the citizen without determining the question of the alleged infringement of the said specified fundamental rights, that is a proceeding which falls under Article 359(1) and would, therefore, be hit by the Presidential Order issued under the said article. The scope of Article 359(1) and the Presidential Order issued under it is thus wide enough to include all claims made by citizens in any court of competent jurisdiction when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is, in substance, seeking to enforce any of the said specified fundamental rights.
13. Next, the learned Government Advocate refers to the following observations of their Lordships in Mohd. Yakub v. State of J. & K. AIR 1968 SC 765 : 1968 Cri LJ 972:
The sixth contention is that Article 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's 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 argument under this head is also rejected.
It is urged that enforcement of Article 22(5) having been suspended, there was no duty cast on the detaining authority to communicate the grounds of detention and, therefore, the petitions for a writ of habeas corpus cannot be entertained on the ground that the detentions were mala fide or under colourable exercise of power. It is also urged that the Court has no jurisdiction to examine the matter merely because the detenu is challenging the order on the ground that he has been detained in violation of the mandatory provisions of the Act.
14. The submissions of the learned Government Advocate, albeit significant for their forceful logic and succinct presentation, do not commend to us. The trend of judicial opinion in the field of personal liberty is definitely in the direction that though an order of detention cannot be challenged under Article 226(1) of the Constitution or under Section 491 (1) (b) of the Code of Criminal Procedure on the ground that the detention order contravenes the fundamental rights under Articles 14, 21 and 22, by virtue of the Presidential Order, the detention can be challenged on other grounds, i. e., other than those specified in the Presidential order under Article 359(1). That has been the clear and consistent view of their Lordships of the Supreme Court not only in Makhansingh's case (supra) but also in a series of decisions referred to above, and we are bound by the law laid down.
15. In the light of the principles settled by their Lordships of the Supreme Court, the preliminary objection raised by the respondents must be overruled. The petition shall, therefore, continue in so far as the petitioners seeks to challenge their detention on grounds other than those specified in the Presidential Order issued under Article 359(1) of the Constitution. They must, however, strike out from the petitions all averments for the enforcement of the fundamental rights guaranteed under Articles 14, 21 and Clauses (4), (5), (6) and (7) of Article 22 of the Constitution which, under the Presidential Order, remain suspended.
16. The respondents are, however granted a certificate of fitness under Article 132 of the Constitution, as the case involves a substantial question of law as to the interpretation of the Constitution.