S. Rangarajan, J.
(1) In this and similar writ petitions which seek to challenge orders of detention passed under section 3 as well as section 16A(3) of the Maintenance of Internal Security Act, 1971 (hereinafter referred to as 'MISA'), a preliminary question has been raised that they are not maintainable. A similar contention was repelled by us for reasons which have been elaborately stated in Smt. Bharati Nayyar v. Union of India & Others, (Crl. Writ No. 121 of 1975) (1) decided on 15-9-1975 (we shall hereafter refer to the same as our previous decision). We have, in essence, held as follows :-
(2) That the order of detention under the Misa could not be challenged under Article 226 only if the same is passed for it. The rule of law will not permit arbitrary executive action; judicial review, subject of course to certain limits and depending on the facts of each case, would be clearly available where it is shown on behalf of the detenu that the impugned order of detention under section 3 and/or declaration under section 16A(3) of the Misa are not passed under the Act. Shortly stated this is only the principle of the legality of any executive action taken being possible to test under Article 226 of the Constitution.
(3) Shri Subramaniam, learned counsel for the respondents, contended that our previous decision is no longer applicable in view of the later amendment to the Misa by Ordinance Xvi of 1975 which added sub-section 9 to Section 16A. If the said amendment is of that description that it has since brought about a change in the law in respect of the identical contention which is now advanced before us then, surely, our previous decision would be of no assistance to the petitioner. This is not disputed by Shri V. M. Tarkunde, learned counsel for the petitioner.
(4) Shri Subramaniam took the occasion, though not explicitly, to urge that our previous decision required reconsideration even independently of Ordinance Xvi of 1975. We heard him for the best part of a working day because he wished to be heard fully. After doing so we feel that the said Ordinance (XVI/75) does not make any difference in respect of his present contention, which really amounts to saying that there is 'non-reviewability-as-threshold determination' in such cases. We had adopted the said expression in our previous decision also, taking it from certain American jurists who perhaps more aptly describe the present situation than what was previously sought to be conveyed by expressions such as the petition being 'not maintainable' or the petition meriting dismissal 'in Iimine'-expressions which could be of somewhat wider amplitude. We also do not consider that our previous decision requires reconsideration. We shall state our reasons more fully presently. In fairness to Shri Subramaniam we propose to deal with his submissions, on both the grounds, more elaborately than we might have been otherwise inclined to do.
(5) Before dealing with the said contentions, if will be appropriate to read sub-section (9) of section 16A of the Misa as it has been proclaimed by Ordinance No. 16 of 1975 dated 17th October. 1975 :
'(9).Notwithstanding anything contained in any other law or any rule having the force of law,-
(A)the grounds on which an order of detention is made under sub-section (1) of section 3 against any person in respect of whom a declaration is made under subsection (2) or sub-section (3) and any information or materials on which such grounds or a declaration under sub-section (2) or a declaration or confirmation under sub-section (3) or the non-revocation under sub-section (4) of a declaration are based, shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose and save as otherwise provided in this Act, no one shall communicate or disclose any such ground, information or material or any document containing such ground. information or material;
(B)no person against whom an order of detention is made under sub-section (1) of section 3 shall be entitled to the commmunication or disclosure of any such ground. information or material as is referred to in clause (a) or the production to him of any document containing such ground, information or material.'
(6) It is needless to repeat here what has been discussed by us in extenso in Mrs. Bharati Nayyar. It may be state, however, that vis-a-vis this question we have held as follows : 'The writ of habeas corpus (Article 226) itself not having been suspended, personal liberty is sought to be regulated by law'.
(7) Shri Subramaniam urged that Part Iii of the Constituton not being available during the present emergency there could be no reliance on any common law or natural rights in an application under Article 226 of the Constitution. It seems to us that the entire approach of Shri Subramaniam is misconceived. We have indicated that even in respect of fundamental rights nothing in the current provisions might save an order of detention from attack on the ground that the same was vitiated on the ground of mala fides it could be be contended, in the view most favorable to the State (on which it is needless for us to give any opinion now), that the concerned fundamental rights are not enforceable during the emergency.
(8) The introduction of Article 359(IA) of the Constitution has no bearing on the question where the impugned detention is challenged as being one not according to law, in the view that there cannot be any executive action taken to the prejudice of any person except according to law.
(9) The addition of Article 359(1A) does not render immune executive action, which is otherwise invalid, from attack merely because of the proclamation of emergency which was in operation when action was taken. This view was taken on the basis of what the Supreme Court had held in a series of cases including : (1) State of Madhya Pradesh v. Bharat Singh, Air 1967 Sc 1170 The District Collector of Hyderabad v. M/s. lbrahim and Co. etc., : 3SCR498 . In the former case, under the provisions of the Madhya Pradesh Public Security Act. 1959, two-fold action was taken : (i) to extern the person concerned from the State of Madhya Pradesh and (ii) to specify where he should reside. The said Act did not give any opportunity to the person concerned of being heard and he had no say in the matter of where he was being asked to reside and without any enquiry about his means of subsistence at the place selected. It was conteded for the State that in view of the state of emergency which had been declared and not withdrawn, the detenu could not move the Court under Article 226 on the ground that his fundamental freedom guaranteed under Article 19(1)(d) of the Constitution had been infringed. The Act was brought into force before the declaration of emergency by the President. It was contended for the State that though the impugned provision in that case (section 3(1) (b) ) was void when it was enacted and was revived by the proclamation of emergency, Article 358 protected action, both legislative and executive, taken after proclamation of emergency and hence the same could not be challenged on the ground that it infringed the fundamental freedoms under Article 19. This argument was repelled as follows :-
'INour judgment, this argument involves a grave fallacy. All executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of Art. 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Part Iii of the Constitution. Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others : it merely provides that so long as the proclamation of emergency subsists laws may be enacted and executive action may be taken in pursuance of lawful authority, which if the provisions of Art, 19 were operative would have been invalid...'
(page 1173) The same view was affirmed in the latter case also : 3SCR498 . In this light we pointed out, after referring to Makkan Singh v. State of Punjab, : 1964CriLJ217 , and a Division Bench decision of this Court in Smt. Manekben v. Union of India (Crl. Writ 1 of 1975(5) decided on 18-4-1975), which itself in turn relied upon Makkan Singh, and the aforesaid two decisions of the Supreme Court that a challenge to any detention as not being under the Misa was possible and in such cases it could not be asserted by the State in every case that despite such challenge the petition under Article 226 should be dismissed (in liming) as not maintainable. For instance, as observed in Makkan Singh, when an executive act of detention is challenged on the ground of mala fides the detenu could not be precluded from substantiating his plca on the ground of the bar created by Article 359(1) under the Presidential Order. A plea of this kind was held to be outside the purview of Article 359(1). Yet another instance given in Makkan Singh was the case of a detention in violation of the provisions of the Act; even such a plea would be outside Article 359(1) and the right of the detenu to move for his release on such a ground could not be affected by the Presidental order. There could be vanities of challenge tending to show that the executive action taken to detain a person is ultra vires.
(10) We also repelled in our previous decision the contention which was put forward before us that in view of the 38th (Constitutional) amendment, and the earlier Ordinance and later Act 39 of 1975 amending the Misa, in the light of the Presidential order declaring the emergency warranted a different legal principal being adopted in the case of such detentions. We explained, following the above said decisions of the Supreme Court, that the only effect of the 38th amendment adding Article 359(I A) and the Presidential order pertaining to the present emergency was that what was originally confined to Article 19 alone by reason of Article 358 of the Constitution had been extended to some other rights mentioned in part Iii of the Constitution. In the light of the decisions of the Supreme Court, we held that the only disability created by the introduction of Article 359(I A) was that any legislative or executive action which was otherwise valid could not be challenged during such emergency on the ground that any rights conferred by part Iii had been violated.
(11) Specific reference has now been made to Article 21 of the Constitution to which we thought no specific reference need be made earlier because Article 21 also is in part Iii of the Constitution. Since a specific reference to the said Article has now been made we may as well refer to it also. Article 21 reads:
'NOperson shall be deprived of his life or personal liberty except according to procedure established by law.'
Article 21 (which has reference both to life as well as personal liberty) being one of the provisions in Part Iii of the Constitution to which Article 359(1A) is made applicable, there could not be any executive action putting an end to a man's life except as warranted by law. We have referred to this aspect because what is so obviously plain with reference to life must be the case with reference to personal liberty (dealt with by Article 21) also. The specific reference to Article 21 made now has, thereforee, no other validity exept in the context of Article 21 being one of the provisions included in part Iii of the Constitution.
(12) We thereforee, held that none of these constitiutional or legislative provisions dispensed with the need to justify the executive action during emergency by a valid law.
(13) Shri B. V. Subramaniam, learned counsel for the respondents, contended before us that there were some observations in Kesavanand Bharati v. State of Kerala, 197Supp. Scr 1, which supported his contention pertaining to natural law rights.
(14) Regarding natural rights we have made no reference to the same in our previous judgment; we referred to personal liberty being a common law right. Section 18 of the Misa, however, puts an end to the natural law rights as well as common law rights of the person detamed when an order is made under the Act. We had explained that the right of personal liberty being a common law right, was available to all citizens of our country when the Constitution came into force in the absence of there being anything in the Constitution inconsistent with such a right. There being nothing in the Constitution inconsistent with such a common law right, we pointed out, this right can be regulated only by law and not by mere executive action without the support of law. Section 18 of the Misa recognises this and provides for the same being put an end to by a: valid order passed under the MISA. This is also a recognition of courts being able to review executive acts operating to the prejudice of citizens .in the light of the principle of legality, a necessary concomitant of the rule of law.
(15) In spite of our pointing out to Shri Subramaniam that there is nothing in Kesavanand Bharati, which was inconsistent with the idea of common law or natural law right having to be regulated by law whenever necessary to prejudicially affect persons concerned he read to us several passages from the said judgment : pages 421, 703, 814, 881, 882, 910, 912 and 975.
(16) In none of those passages do we find reference to the aspect which now arises for consideration. The above observations were made in the context of the contention that fundamental rights could not be amended for the reason that they should be equated with natural rights', that they should be treated as 'primordial' or 'sacrosanct' or rights 'without limitation' etc. Ray, J. (as he then was) pointed out (p. 421) that fundamental rights 'are social rights conferred by the Constitution. There is no law above the Constitution. The Constitution does not recognise any type of law as natural law'. H. R. Khanna, J. put the matter thus (p. 703) : 'The natural rights have, however, been treated to be not of absolute value but such as are subject to certain limitations. But independently of the Constitution and the laws of the State, natural rights can have no legal sanction and cannot be enforced'. Many more passages of similar width and amplitude may be set out but it seems needless to burden this judgment with more extracts from the said decision. It is sufficient to state that Shri Subramaniam was not able to refer us to any observation in any decided case, whether Kesavanand Bhurti or any other, which supports his contention that common law rights and natural law rights which are not inconsistent with the Constitution can be regulated otherwise than by law validly made. He could not support his contention that once a common law right became a fundamental right, the suspension of such fundamental right affected the common law right if this was so there would have been clearly no need for section 18 of the MISA. He went the length of saying that section 18 was unnecessary even overlooking the well known principle of interpretation that the intention of making an idle provision is not to be lightly attributed to the Legislature.
(17) Equally misdirected, it seemed to us, was the submission made to us by Shri Subramaniam that there is no question of any common law right or personal liberty in India after section 491 of the Criminal Procedure Code . was placed on the Statute Book in 1923. His contention seemed even lo overlook that section 491 had been dropped from the present Cr. P.C. on the recommendation of the Law Commission headed by Dr. P. B. Gajendragadkar; it had become superfluous after Article 226 had been made available by the Constitution. Shri Subramaniam only stated that he was not concerned with this feature. Some of the observations made by P. B. Gajendragadkar, J. (as he then was) in makkan Singh, were read by Mr. Subramaniam regardless of the context in which they occurred and even regardless of the submissions made in that case in the light of which alone they were made. The following portions of the head notes of : 1964CriLJ217 , which brings out clearly what was decided there, particularly the portions underlined, are squarely against the contention of Mr. Subramaniam that no case of detention is reviewable by this Court:
'THEright to challenge a detention order under s. 491(1)(b) of the Code had been enlarged by the fundamental rights guaranteed by the Constitution and when a detenu relied upon such rights in his petition under that section he was in substance seeking to enforce his fundamental rights. The prohibition contained in Article 359(1) and the Presidential Order must, thereforee, apply. The expression 'right to move any court' in Article 359(1) and the Presidential Order takes in all legal action's, filed 732 or to be filed, in which the specified rights are sought to be enforced and covers all relevant categories of jurisdictions of competent courts under which the said actions would otherwise have been normally entertained and tried. Sree Mohan Chwdhury v. Chief Commissioner Union Territory of Tripura, : 1964CriLJ132 referred to. Even though the impugned Act may be invalid by reason of contravention of Arts. 14, 21, and 22, as contended by the Appellants, that invalidity could not be challenged during the period prescribed by the Presidential Order and it could not be said that the President could not because of such invalidity issue the order. Where, however, the challenge to the validity of the detention order was based on any right other than those mentioned in the Presidential Order, the detenu's right to move any court could not be suspended by the Presidential Order because the right was outside Art. 359(1). Where again the detention was challenged on the ground that it contravened the mandatory provisions of the relevant Act or that it was mala fide and was proved to be so and in all cases falling under the other categories of s. 491(1) (b), the bar of the Presidential Order could have no application. So also the plea that the operative provision of the law under which the order of detention was made suffered from the vice of excessive delegation, was an independent plea not relatable to the fundamental rights mentioned in the Presidential Order and its validity had to be examined.'
(18) We may reject summarily Mr. Subramaniam's reference to the Misa being placed in the Ninth Schedule to the Constitution, this only places an embargo on challenge to its constitutionality it is, thereforee, hardly relevant to the question we are discussing here.
(19) In his book 'Administrative Law, Second Ed. (1967)', Prof. H. W. R. Wade has stated in the text as follows :
'WHEREthe validity of the imprisonment turns on the legality of some administrative act, habeas corpus becomes a remedy for enforcing the principle of ultra vires. Thus an alien detained pending deportation can apply for habeas corpus to question the validity of the deportation order, for example by alleging that what is asserted to be lawful deportation is in fact unlawful extradition at the request of a foreign government (R. v. Home Secretary ex parte Soblen, 1963 2 Q.B. 243. All the accustomed varieties of ultra virus could be controlled by this remedy if they were relevant to the legality of the detention'
(20) In his Third Ed. (1971) of the same work the above text has been somewhat modified as follows :
'WHEREthe validity of the imprisonment turns on the legality of some administrative act, habeas corpus becomes a remedy for enforcing the principle of ultra vires. Thus an alien detained pending deportation can apply for habeas corpus to question the validity of the deportation order, for example by alleging that what is asserted to be lawful' deportation is in fact unlawful extradition at the request of a foreign government (R. v. Home Secretary ex parte Soblen, 1963 2 O.B. 243. A mental defective detained unlawfully can be released by habeas corpus if it is. shown that the detention order is ultra virus (R. v. Board of Control, 1956 2 Q.B. 109 or vitiated by error on the face of the record (Armah case, p. 100, note 1) or supported by no evidence (R. v. Board of Control, 1956 2 Q.B. 109 per Goddard C.J.). Since personal liberty is of paramount importance, the courts seem more disposed to review for 'no evidence' in these cases than in others. For the same reason they require the detaining authority to prove every fact which is legally necessary to justify the detention [R. v. Governor of Brixton Prison 1969 2 Q.B. 222](10)'
(21) In our previous decision we have discussed at some length the English decisions in Liversidge v. Anderson 1942 A. C. 206,(11), Green v. Anderson as well as R. v. Governor of Brixton Prison and explained how the decision of Lord Atkin which he expressed in Liversidge to the effect that it was not enough for the Home Secretary, the detaming authoriy. to suppose that he had lawful grounds to detain one said to be having hostile association but that those grounds should in fact exist, has become the accepted law of England. The relevant passage from the judgment of Lord Parker C.J. in R.v. Brixton was. also set by us. The statement of law, as set out in the Second Edition itself succinctly states the idea that where the validity of an impriscnment turns on the legality of some administrative act hebeas corpus becomes a remedy for enforcing the principle of ultra virus and that the validity of executive action could be controlled by this remedy, if they were relevant to the legality of the detention.
(22) It seems to us that the law, as stated in the text of prol''s Wade's Book. Third Edition, is even more favorable to the detenu. It is based upon R. v. Governor of Brixton Prison where it was held that the detaining authority had to prove every fact which was legally necessary to justify the detention.
(23) We have pointed out in our previous decision that when an order of detention is produced by the lawfully competent authority and it is in proper form it would not be enough for the detenu to merely say that he did not know why he was detained. He would, in order to succeed, have to create doubts in the mind of the Court concerning the validity of the detention as observed in R. v. Home Secretary ex parte Soblen 1963 2 Q.B. 243 (8). In those circumstances if the detaining authority did not file a good return by proving every fact which was legally necessary to justify the detention, the detenticn would be quashed.
(24) We have also indicated in our previous decision that the onus which was on the detenu when he challenged an executive act of detention became even heavier when, as in the present case. he did not have to be furnished with the grounds under the Misa, as amended, when making an order of detention, the appropriate authority has to be further satisfied that it was necessary to make such a declaration under section 16-A(3) of the Misra that such a declaration was necessary in order to deal effectively with the emergency.
(25) It is needless for the present purpose to spell out the varieties of such possible attacks. Suffice it to say that if sufficient allegations are not made the petitioner under Article 226 of the Constitution would be dismissed in liming ; if they are made these will be scrutinised in the light of the facts of each case, firstly, by issuing a notice to show- cause why the petition should not be admitted (a practice which we have been adopting in this Court). This course has been found to be convenient, as we find it from our experience, because if the materials placed before us in the reply to the 'show-cause' notice are sufficient to quieten such doubts, as might have arisen earlier at the stage of the issue of show-cause notice, about the validity of detention, the petition could be dismissed even at that stage in liming. If the reply is not sufficient to settle such doubts which arose earlier, then the petition under Article 226 is admitted and a rule nisi is issued to which the respondents might wish to make a better return, if possible, or even argue in greater depth or in a manner sufficient to carry conviction about the validity of detention. We have held in our previous decision that initially the onus is on the petitioner; only when some material is placed can the onus shift on to the State to make a ''good' return. We had also referred, on the question of onus and making a good return after issue of a rule nisi, to the following decisions of the Supreme Court :
(1)Dulal Roy v. District Magistrate : 1975CriLJ1322 .
(2)Mohd. Alam v. State of West Bengal : 1974CriLJ770 .
(3)L. K. Das v. State of West Bengal : AIR1975SC753 .
(4)S. K. Serajul v. State of West Bengal : AIR1975SC1517 .
(26) Ordinance Xvi of 1975, on which reliance is now placed, would have a bearing on the question whether in the light of the said amendment the State has made a good return, but this is a consideration which would be totally outside our purview at this stage, when we are asked to hold, as Shri Subramaniam did, that even at the threshold we must hold in favor of non-reviewability of all orders of detention regardless of the kind or quality of return made by the detaining authority. As we have also held previously, a challenge to the detention on the ground of want of legality, namely, the same not being passed under the Act, was open to the detenu or by one on his behalf. The introduction of sub-section (9) to section 16-A of the Misa, introduced by Ordinance Xvi of 1975, (in effect only amending the Misa by adding one such provision) cannot have any impact by itself on the challenge that the executive act of detention is not under the MISA. In other words, the precise scope of section 16-A (9) of the Misa, as amended by Ordinance Xvi of 1975, and to what extent it would disable the detenu from claiming any relief would be a question which would have to be examined in each individual case, as and when such contentions are raised on the merits. But this would be totally different from saying that the said section 16-A(9) of the Misa by itself provided the State with an additional ground to have all petitions challenging the detention as not being under the Misa impermissible merely by reason of the said provision. As we read the said provision we do not see that it is of such import. We may repeat what we said previously that the Writ of habeas corpus has neither been suspended nor abolished.
(27) Shri Subramaniam did not come to grips with any of the cases we have discussed; he merely repeated the contentions already considered by us based on the 38th (Constitutional) Amendment and the legislative amendments to the Misa in 1975; we have explained how Ordinance Xvi of 1975 also does not make any difference in respect of the preliminary objection raised by him, namely, that no case of detention under the Misa could be judicially reviewed.
(28) The observation of Gajendragadkar, J. in Makkan Singh that in such cases challenges on the ground that some mandatory provisions of the concerned law had to be enquired into when made in applications for writ of habeas corpus is worth recalling. This observation may be illustrated with reference to detentions made during the current emergency. Supposing there is a challenge, as it has been the case quite often before us, on the ground the declaration under section 16-A(3) of the Misa is contrary to the mandatory provisions of the Act, surely, there is nothing in any of the provisions, constitutional or legislative, relied upon by Shri Subramaniam, which will lead to the conclusion that even in such a case there is a bar against reviewability of an invalid declaration, especially when invalidity is patent. We have referred to this instance alone because we noticed that in a few Writ Petitions when challenge was made on the ground, inter alia, of the invalidity of the concerned declaration, the State revoked the order of detention itself and passed fresh orders of detention making legally proper declarations. We refrain from referring to the other types of cases where other kinds of attacks may be possible on the legality of detention and/or declaration having an impact on the detention itself because they are likely to arise in future case (at least before us) and we would naturally prefer to deal with them when they arise. The above illustration, even singly, seems sufficient to repel the preliminary objection about non-maintainability put forward by.Shri Subramaniam.
(29) We have previously dismissed mala fides, both of fact and law, as not being a permissible ground of challenge; we repelled such an argument for the State, based on the observations of Viscount Simonds in Smith v. East Elloe Rural District Council and others 1956 (1) All E. R. 855 (16). The observations of Viscount Simonds were dissented from in Anisminic Ltd. v. The Foreign Compensation Commission 1969(1) All ER 208 (17). It was explained by us how Lord Reid, who was in minority in Smith, was in the majority in Anisminic and how he regarded Smitn as 'unsatisfactory'. While Anisminic has been followed by our Supreme Court in several decisions, of which it is sufficient to mention M. L. Sethi v. R. P. Kapur : 1SCR697 . Smith was not followed by the Supreme Court, even before Anisminic : vide Smt. Somawanti v. State of Punjab : 2SCR774 . In view of these pronouncements it is not possible to contend that even an attack on the ground of mala fides cannot be gone into by the Court. As we understood Shri Subramaniam this did not even appear to be one of his arguments.
(30) How contentions based on Ordinance XVI/75 should be considered, what are relevant to such contentions, in other words, the impact of Ordinance XVI/75 on the case, are all matters which pertain to the merits of each writ petition and cannot form the subject matter of determination concerning non-reviewability at the threshold. A person who is prejudicially affected by an executive act of detention, as undoubtedly that person is, is entitled to invoke the jurisdiction of High Courts under Article 226 of the Constitution raising questions (to state it in another form) bearing on the legality (i.e. ultra virus nature) of the impugned executive act; this is something which flows directly as a consequence of the rule of law. If section 18 of the Misa expressly provides, as it does, that common law rights and natural law rights are put an end to by an order passed under the Act, it follows from that very premise, that orders which are not passed under the Act do not have that legal effect. A person invoking judicial review under Article 226 can complain that he is affected or prejudiced, whatever it may be, by an ultra virus executive act, for only an intra virus executive act alone can have the legal consequences of affecting his rights or even prejudice him. It is not merely fundamental rights that have been referred to in Article 226; the further expression used is 'and for any other purpose'. This aspect has been discussed at great length in Chakravarti Malhotra & Ors v. Union of India & Ors (Civil Writ 119 of 1972) (20), decided by one of us (S. Rangarajan, J.) on 18-9-1974.
(31) Though we have covered the entire ground bearing on non- reviewability as-a-threshold-determination at some length once over it was mainly in the light of Ordinance Xvi of 1975; the Ordinance has no direct bearing on non-reviewability as a threshold determination as such. It may have a bearing on some or even many cases when the Court enters into the merits of each Writ Petition i.e. considers grounds other than non-reviewability-at-the-threshold; it would obviously not be possible to discuss these aspects even as a threshold determination. It seems to us the preliminary objection raised in the above manner is unsustainable.
(32) In the light of the above discussion, having heard both sides, we direct rule to issue. Rule.
(33) Reply, at request, be filed before the adjourned date but advance copy of the same must be given to the counsel for the petitioner on or before the evening of the 9th November 1975. To come up on 12th November 1975. The petitioner may file any rejoinder, if necessary, after giving advance copy to the counsel for the respondents.