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Pran Nath Lekhi Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtDelhi High Court
Decided On
Case NumberCriminal Writ Appeal No. 221 of 1975
Judge
Reported inAIR1977Delhi167; 1977CriLJ1130; ILR1977Delhi146B
ActsConstitution of India - Article 352, 352(1), 352(3) and 352(5)
AppellantPran Nath Lekhi
RespondentUnion of India and ors.
Advocates: V.P. Raman and; Harish Chandra Rao, Advs
Cases ReferredSmt. Manek Ban v. Union of India I.L.R.
Excerpt:
(i) constitution of india - article 352, clauses (1), (3) & (5)--proclamation of emergency--satisfaction of the president as to existence or imminent danger of aggression or disturbance--whether justiciable.; a proclamation was made by the president on 25-6-1975 in exercise of the power conferred on him by article 352, clause (1) of the constitution declaring the existence of a grave emergency whereby the security of the country is threatened by internal disturbance. the petitioner assailed the proclamation on the ground that the president had not before him relevant material to arrive at the valid (subjective) satisfaction as to the existence of the emergency. repelling the contention, the court relying on sub-clause (a) of clause (5) of the article--; that the finality and.....prakash narain, j. (1) criminal writ no. 221 of 1975 was dismissed by us in liming on july 27, 1976 and criminal writ no. 62 of 1976 was dismissed by us on the next day by short orders pronounced in court. we had also indicated in our short orders that reasons will be recorded later. we now proceed to record our reasons for dismissing these two petitions. (2) at the outset we would like to place on record our thanks and appreciation to mr. v. p. raman, additional solicitor general and mr. harish chandra, central government counsel who ably assisted us amices curiae at our request. (3) in criminal writ no. 221 of 1975 the petitioner is a detenu who has been detained in pursuance of an order made under section 3(1) of the maintenance of internal security act. this petitioner had by his.....
Judgment:

Prakash Narain, J.

(1) Criminal Writ No. 221 of 1975 was dismissed by us in liming on July 27, 1976 and Criminal Writ No. 62 of 1976 was dismissed by us on the next day by short orders pronounced in court. We had also indicated in our short orders that reasons will be recorded later. We now proceed to record our reasons for dismissing these two petitions.

(2) At the outset we would like to place on record our thanks and appreciation to Mr. V. P. Raman, Additional Solicitor General and Mr. Harish Chandra, Central Government Counsel who ably assisted us amices Curiae at our request.

(3) In Criminal Writ No. 221 of 1975 the petitioner is a detenu who has been detained in pursuance of an order made under Section 3(1) of the Maintenance of Internal Security Act. This petitioner had by his petition prayed that this court should declare that:

'(I)the continuance of emergency declared in 1971 and (ii) the emergency declared on 25/26 June, 1975 (iii) all actions taken, including the raid and search of the residence of the petitioner under colour of emergency, the issuance of warrants of his arrest. as unconstitutional, fraud on power, illegal and invalid. Issue Order Direction Or Writ In The Nature Of Writ Of certiorary quashing the proclamation of emergencies and Fir 300/75 P. S. Rajinder Nagar, New Delhi. habeas corpus directing respondents to immediate release the petitioner from warrants of arrest issued under Fir 300/75 P. S. Rajinder Nagar, New Delhi. mandamus directing the respondents to proceed in accordance with law.'

(4) At the hearing, however, the petitioner pressed for only a declaration that the emergency declared on June 25/26, 1975 and all actions taken, including the raid and search of the petitioner's residence under colour of emergency, are unconstitutional fraud on power, illegal and invalid. He did not press for and give up the relief sought on any other aspect.

(5) The petitioner in the second case also is detained under Section 3(1) of the Misa and had challenged his detention on various grounds. In Criminal Writ No. 62 of 1976, we had issued notice to the respondents to show cause why rule nisi be not issued restricted only to the averments in grounds (N) and (ff) in the petition. We have already made our observations with regard to the averments in ground (N) in our order of July 28, 1976. So, we have to state our reasons only for rejecting the averments in ground (ff). This ground is to the effect that the 38th Amendment of the Constitution in ultra virus and beyond the powers of the Parliament, inasmuch as the introduction of clause (5) in Article 352 of the Constitution offends or mitigates against the basic structure and framework of the Constitution. The petitioner in Criminal Writ No. 221 of 1975 had not agitated this aspect but the petitioner in Criminal Writ No. 62 of 1976 did press this aspect in addition to the prayer that the Proclamation of Emergency by the Presidential declaration dated June 26, 1975 be held to be illegal, invalid and in excess of the power conferred on the President of India to make such a declaration under Article 352(1) of the Constitution.

(6) Inasmuch as both the matters were heard together and substantially raise similar questions of law, we have decided to state our reasons for dismissing the two petitions in liming on the aspects mentioned above by a single judgment.

(7) The impugned Proclamation issued by the President reads as under:

'NO. II/16013/1/75-S&P;(D. II) Government Of India Ministry Of Home Affairs New Delhi-110001, Dated 26th June, 1975 Notification G.S.R. 353(E). The following Proclamation of Emergency by the President of India, dated the 25th June, 1975, is published for general information: 'PROCLAMATION Of EMERGENCY' Inexercise 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. sd/- (F. A. AHMED) President New Delhi, the 25th June, 1975.'

(8) The above Proclamation of Emergency made by a declaration of the President was published on June, 26, 1975, though the declaration itself was made on June 25, 1975, as is evident from a reading of the Proclamation. The declaration was made in exercise of the powers conferred by clause (1) of Article 352 of the Constitution. Inasmuch as Article 352 is to be construed by us, it will be advantageous to read the Article. It is in the following words:-

'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, whether 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 unless before the expiration of that period it has been approved by resolution of both Houses of Parliament: Provided that if any such Proclamation is issued at a times when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of two months referred to in sub-clause (c), and States, but no resolution with respect to such Proclamation has been passed by the House of the 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 itseconstitution 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) A 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 disturbance may be made before the actual occurrence of war or of any such aggression or disturbance if the President is satisfied that there is imminent danger thereof. (4) The power conferred on the President by this article shall include the power to issue different Proclamations on different grounds, being war or external aggression or internal disturbance or imminent danger of war or external aggression or internal disturbance, whether or not there is a Proclamation already issued by the President under clause (1) and such Proclamation is in operation. (5) Notwithstanding any thing in this Constitution- (a) the satisfaction of the President mentioned in clause (1) and clause (3) shall be final and conclusive and shall not be questioned in any court on any ground; (b) subject to the provisions of clause (2), neither the Supreme Court nor any other court shall have jurisdiction to entertain any question, on any ground, regarding the validity of- (i) a declaration made by Proclamation by the President to the effect stated in clause (1) ; or (ii) the continued operation of such Proclamation.'

(9) Although long drawn out arguments were advanced by the petitioner in Criminal Writ No. 221 of 1975, who appeared in person, yet in the ultimate analysis he restricted his arguments only to the construction and interpretation of clause (5) of Article 352 of the Constitution. The contention made was that the said clause (5) did not bar the testing of the validity of the satisfaction of the President postulated by clause (1) of Article 352 of the Constitution. The only bar was to the challenge to the validity of the Proclamation issued or a declaration being made by the President. In other words, the contention was that no challenge was being made to the validity of the Proclamation published in the gazette, but the validity of the satisfaction of the President leading to his making the declaration resulting in the Proclamation being issued was being challenged. We will first deal with this contention and then come to the contention of the petitioner in Criminal Writ No. 62 of 1976.

(10) The petitioner urged that the satisfaction postulated by clause (1) of Article 352 of the Constitution is the subjective satisfaction of the President. He contended that subjective satisfaction, however, had to be based on some relevant material placed before the President. Referring to the Constitutional set up it was contended that the material on the basis of which the President had to be satisfied had to be placed before him by the Prime Minister and/or the Council of Ministers headed by the Prime Minister. The Prime Minister, it was urged, had further to tender advice to the President to make the declaration postulated by Article 352 which advice would be binding on the President. It was further urged that if it could be demonstrated that either the President had no material or no relevant material to arrive at the subjective satisfaction postulated by clause (1) of Article 352 of the Constitution, thenthe sine qua one of the subjective satisfaction disappeared and it had to be held that there was no valid exercise of the power conferred by clause (1) of Article 352 of the Constitution. The material on the basis of which the satisfaction of the President is said to have been arrived at was contended by the petitioner to be contained in a white paper issued by the Central Government on July 22, 1975 and a statement made by the Prime Minister in Parliament. It was urged that inasmuch as it has been said on the floor of the Houses of Parliament by the Minister of State for Home Affairs though there was no other reason for declaring emergency except as had already been placed before the Parliament on earlier occasions, namely, the white paper and the statement of the Prime Minister, referred to above, it must be assumed that the only grounds on which the President based his subjective satisfaction are what is stated in the said two pieces of evidence, referred to by the petitioner. A great deal of stress was laid and protracted arguments were addressed on what is subjective satisfaction and how and to what extent a subjective satisfaction is subject to judicial review. Ultimately, however, all these arguments were given up and the petitioner in Criminal Writ No. 221 of 1975 pressed only the contention noticed above, namely, the construction sought to be placed on clause (5) of Article 352 of the Constitution. We are, thereforee, neither called upon nor arc inclined to comment upon the sufficiency or relevancy of the so- called 'only' material leading to the satisfaction of the President in making a declaration of emeregency as proclaimed on June 25, 1975.

(11) Reading clause (5) of Article 352 of the Constitution we are not impressed with the distinction drawn by the petitioner. In our opinion, the proposition as put by him is based on a misconception. On a proper construction of clause (5) of Article 352 it will be seen that the Proclamation is the mode of making a declaration which declaration is made after the satisfaction postulated by clause (1) of Article 352 of the Constitution. Sub-clause (a) of clause (5) of Article 352 deals with the satisfaction of the President. Sub-clause (b) of clause (5) of Article 352 deals with the declaration by Proclamation. In our opinion, neither the grounds for satisfaction nor the resultant of this satisfaction, namely, the declaration by a Proclamation are justiciable. Indeed, sub-clauses (a) and (b) cover the entire field and both are made non-justiciable. The satisfaction of the President is made final and conclusive and cannot be questioned in any court on any ground. The contention of the petitioner that the validity of the satisfaction is open to judicial review,. if there be no grounds whatsoever or any relevant ground on which the satisfaction could be based, is fallacious. The finality and conclusiveness attached to the satisfaction of the President is not open to judicial review on any ground even if the ground of challenge to the satisfaction is that there was no ground to arrive at the valid satisfaction. Existence of grounds or material to arrive at a valid subjective satisfaction has to be distinguished from the ground of challenge put forth to the validity of such satisfaction. Sub-clause (a) of clause (5) of Article 352 speaks of the ground to challenge the validity of the satisfaction and not of ground on the basis of which or the material on the basis of which subjective satisfaction is to be arrived at. The petitioner who had earlier advanced arguments on whether subjective satisfaction is open to judicial review had rightly not pressed those arguments. The distinction that he now seeks to make out is really advancing the original argument which he had given up. In any case, we are of the opinion that no ground is available to challenge subjective satisfaction of the President and the distinction between the ground or material for arriving at the subjective satisfaction and the ground to challenge the subjective satisfaction has to be borne in mind. The bar placed on the Supreme Court or any other court to judicially review the validity of a declaration made by a proclamation by the President by sub-clause (b) of clause (5) of Article 352 is absolute. Indeed, in terms the jurisdiction to entertain any question on any ground to judicially review the validity of the declaration made by a proclamation by the President is taken away. thereforee, neither the subjective satisfaction of the President postulated by clause (1) and clause (3) of Article 352 nor the declaration made by a proclamation following the satisfaction is open to judicial review,

(12) This brings us to the next question agitated by the petitioner in Criminal Writ No. 62 of 1976. namely, that if the 38th Amendment of the Constitution is invalid, then the bar of clause (5) of Article 352 would not be available. We have negatived this contention and proceed to record our reasons for that veiw.

(13) Mr. A. C. Shubh, the petitioner in Criminal Writ No. 62 of 1976, first urged that the 38th Amendment of the Constitution is destructive of the basic structure of the Constitution inasmuch as it prevents or is vocative of the concept of judicial review and the federal structure of the Union. We have, thereforee, to first examine whether the 38th Amendment adversely affects the basic structure of the Constitution.

(14) The concept of 'the basic structure' was first propounded in His Holiness Kesavananda Bharati Sripadaqalvaru and others v. State of Kerala and another, : AIR1973SC1461 . It is a matter of judicial history that the Constitution 24th Amendment Act was passed as a result of the decision of the Supreme Court in L. C. Golak Nath v. State of Punjab, : [1967]2SCR762 . In this case what had been held was that Article 368 related only to the procedure for amending the Constitution but did not confer on the Parliament any power to do so. The 24th Amendment expressly empowered the Parliament to amend any provisions of the Constitution including those relating to fundamental rights and further made Article 13 of the Constitution inapplicable to an amendment of the Constitution under Article 368. Inasmuch as the 24th Amendment itself tended or appeared to be contrary to the rule laid down in L. C. Golak Nath's case the matter had to be reconsidered in Kesavananda Bharati's case. A special bench of 13 Judges overruled Golak Nath but also brought in the concept of the basic structure of the Constitution. So, what we have to sec is whether Kesavananda Bharati lays down any rule which could support the contention made by the petitioner that judicial review of executive action is a basic structure of the Constitution.

(15) Before we embark upon an examination of the above proposition we would like to clarify that barring of judicial review by an ordinary statute passed by a legislature is defferent from barring a judicial review by a constitutional provision. We need not dilate on ordinary legislative emargo on judicial review. On that aspect the law is well-settled. Here we are only concerned with the bar placed on judicial review of executive action by a constitutional provision.

(16) H. R. Khanna, J., whose speech in Kesavanada Bharati is the most relied upon for the concept of basic structure, observes as follows on the question of judicial review ( : AIR1973SC1461 :-

''THE power of judicial review is, however, confined not merely to deciding whether making the impugned laws the Central or State Legislatures have acted within the four corners of the Legislative lists earmarked for the courts also deal with the question as to whether the laws are made in conformity with and not in violation of the other provisions of the Constitution. Our Constitution-makers have provided for fundamental rights in Part Iii and made them justiciable. As long as some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by those rights are not contravened. Dealing with draft Article 25 (corresponding to present Article 32 of the Constitution) by which a right is given to move the Supreme Court for enforcement of the fundamental rights, Dr. Ambedkar speaking in the Constituent Assembly on December 9, 1948 observed:- 'If I was asked to name any particular article in this Constitution as the most important-an article without which this Constitution would be a nullity-1 could not refer to any other article except this one. It is the very soul of the Constitution and the very heard of it and I am glad that the House has realised its importance' (CAD debates Vol. Vii, page 953). Judicial review has thus become an integral part of our constitutional system and a power has been vested in the High Courts and the Supreme Court to decide about the Constitutional validity of provisions of statutes. If the provisions of the statute are found to be vocative of any article of the Constitution, which is the touchstone for the validity of all laws, the Supreme Court and the High Courts are empowered to strike down the said provisions. The only sphere where there is no judicial review for finding out whether there has been infraction of the provisions of Part Iii and there is no power of striking down an Act, regulation or provision even though it may be inconsistent with or takes away or abridges any of the rights conferred by Part Iii of the Constitution is that incorporated in Article 31-B taken along with the Ninth Schedule. Article 31-B was inserted as mentioned earlier, by the Constitution (First Amendment) Act. According to Article 31-B none of the Acts and regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void or ever to have become void on the ground that such Act, regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by any provision of Part Iii of the Constitution. The one thing significant to be noted in this connection, however, is that the power under Article 31-B of exclusion of judicial review, which might be undertaken for the purpose of finding whether there has been contravention of any provision of Part Iii, is exercised not by the legislature enacting the impugned law but by the authority which makes the constitutional amendment under Article 368, viz., the prescribed majority in each House of Parliament.........''

His Lordship upheld the validity of Article 31-B of the Constitution observing that he saw no cogent ground to take a view different from what was expressed by Subba Rao, J. (as he then was) in N. B. Jeejeebhoy v. Assistant Collector, Thana, : [1965]1SCR636 .

(17) Sikri, C. J. in the same case has expressed himself as follows (Para 302, Page 1535 of the report) :

'THE learned Attorney-General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the constitution remains the same. The basic structure may be said to consist of the following features: (1) Supermacy of the Constitution; (2) Republican and Democratic forms of Government. (3) Secular character of the Constitution; (4) Separation of powers between the legislature, the executive and the judiciary; (5) Federal character of the Constitution.'

It will thus be seen that Hon'ble the Chief Justice did not include judicial review as one of the features of the basic structure of our Constitution.

(18) Shelat, and Grover, JJ. have also made no reference to judicial review as a feature of the basic structure of our Constitution. After observing : 'Our Constitution is federal in character and not unitary. In a federal structure the existence of both the Union and the State is indispensable and so, is the power of judicial review,' their Lordships go on to illustrate 'the basic elements of the Constitutional structure', as follows:-

'THE basic structure of the Constitution is not a vague concept and the apprehensions expressed on behalf of the respondents that neither the citizen nor the Parliament would be able to understand it are unfounded. If the historical background, the Premable, the entire scheme of the Constitution, the relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the basic elements of the constitutional structure. (These cannot be catalogued but can only be illustrated): 1. The supermacy of the Constitution. 2. Republican and Democratic form of Government and sovereignty of the country. 3. Secular and federal character of the Constitution. 4. Demarcation of power between the legislature, the executive and the judiciary. 5. The dignity of the individual secured by the various freedoms and basic rights in Part Iii and the mandate to build a welfare State contained in Part IV. 6. The unity and the integrity of the nation.'

(19) Jaganmohan Reddy, J. in his speech in Kesavananda Bharti had to observe as follows with reference to judicial review (Page 1734, para 1116) :-

'......THERE is no constitutional matter which is not in some way or the other involved with political, social or economic questions, and if the Constitution-makers have vested in this court a power of judicial review, and while so vesting have given it a prominent place describing 'it as the heart and soul of the Constitution, we will not be deterred from discharging that duty, merely because the validity or otherwise of the legislation will affect the political or social policy underlying it. The basic approach of this Court has been, and must always be, that the Legislature has the exclusive power to determine the policy and to translate it into law, the constitutionality of which is to be presumed, unless there are strong and cogent reasons for holding that it conflicts with the constitutional mandate. In this regard both the Legislature, the executive as well as the judiciary are bound by the paramount instrument and, thereforee, no Court and no Judge will exercise the judicial power de hors that instrument, nor will it function as a Supreme legislature above the Constitution. The bona fides of all the three of them has been the basic assumption, and though all of them may be liable to error, it can be corrected in the manner and by the method prescribed under the Constitution and subject to such limitations as may be inherent in the instrument.'

It is not necessary to quote further from Kesavananda Bharati. Suffice it to say that the distinction between what may be called ordinary legislative statutes and constitutional provisions is well recognised, If the Constitution, which gives the power of judicial review, itself takes away the power of judicial review then the very mandate under which courts exercise the power of judicial review is A taken away and it cannot be said that this affects the basic structure of our Constitution. Kesavananda Bharati cannot, thereforee, be pres sed in support of the contention that the 38th Amendment is ultra virus the powers of the Parliament inasmuch as it adversely affects the powers of judicial review.

(20) Both the existence and debarment of judicial review vis-a-vis specified statutes and executive action has been the scheme of our Constitution from the very inception, at least from the lirst Constilution Amendment Act. So, we might well assume that it is a basic feature of our Constitution that in specified fields there is no judicial review. The 38th Amendment, thereforee, does not mitigate against the scheme of our Constitution. Indeed, it is a refreshing feauare of our Constitution alone that what may seem to be opposite situations all find place in the same document. For example, there are the safeguards postulated by Articles 19, 21 and 22 ai'.d there is provision for their suspension under Articles 358 and 359. Similarly there is Article 13 and then Article 311 and the Ninth Schedule. These so called opposite aspects exist by the mandate of the people who adopted the Constitution. The power exercised under Article 368 of the Constitution cannot be questioned vis-a-vis the 38th Amendment even on the basis of the rule laid down in Kesavananda Bharati as, in our opinion, the existence of a bar to judicial review is also a feature that is recognised by the Constitution.

(21) It may be worthwhile observing that subjective satisfaction of the President postulated by clause (1) and clause (3) of Article 352 has never been struck down by any court. Clause (5) of Article 352 only makes what has always been the approach of the courts as a constitutional requirement. We are tempted to quote from the speech of Y. V. Chandrachud, J. in Smt. Indira Nehru Gandhi v. Shri Raj Narain, : [1976]2SCR347 , where his Lordship says (Page 2466, para 668):-

'THE provision contained in Article 329(b) is decisive t)n the question under consideration. That article provides that no election to the Parliament or the State legislaUrre shall. be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature. It was, thereforee, open to the legislature to leave the adjudication of election disputes to authorities other than those in the hierarchy of ouijudicial system. In fact, until the passing of the Representation of the People (Amendment) Act 47 of 1966, by which High Courts were given jurisdiction to try election petitions, that jurisdiction was vested first in a tribunal consisting of three members and later in a tribunal consisting of a single member who was to be a sitting District Judge. The decisions of those tribunals could eventually be brought before the Supreme Court under Article 136(1) of the Constitution but it is at least plausible that where the Legislatures to pass laws leaving the decision of election disputes to themselves, judicial review might have stood excluded. Since the Constitution as originally enacted, did not consider that judicial power must intervene in the interest of purity of elections, judicial review cannot be considered to be a part of the basic structure in so far as legislative elections are concerned. The theory of Basic Structure has to be considered in each individual case not in the abstract, but in the context of the concrete problem. The problem here is whether under our Constitution, judicial review was considered as an indispensable concomitant of elections to country's legislatures. The answer, plainly, is no.'

(22) We, thereforee, are firmly of the opinion that the specific exclusion of the jurisdiction of the court by sub-clause (b) of clause (5) and the non-justiciability postulated by sub-clause (a) of clause (5) of Article 352 do not, in any way, affect the basic structure of our Constitution.

(23) It was then urged that the 38th Amendment inasmuch as it affects the federal structure adversely affects our Constitution. The argument is really not understandable. Indeed, our Constitution which is more or less federal in character has many contingencies provided in it when the federal structure gets automatically affected. The moment an order is made under part 18 of the Constitution the necessary consequences must follow even before any amendment' of the Constitution. This basic fact is an integral part of our Constitution and so must be regarded as a feature of the basic structure of the Constitution as adopted by the Constituent Assembly. The chapter on emergency and emergency provisions were conceived by the framers of the Constitution who also conceived and enshrined the fundamental rights. If it is said that the democratic form of Government is in jeopardy by the 38th Amendment it must also be said that the emergency provisions as provided in the Constitution when originally adopted conceived of such a feature. We cannot accept the contention that the democratic form of Government is destroyed by the Constitutional Amendment or the emergency provisions. These were, in fact, adopted to save the democratic set up. The consequences of a declaration by a proclamation on the satisfaction postulated by Article 352(1) and (3) follow from the original provisions of the Constitution. Such inborn provisions in the Constitution cannot be subjected to the basic structure test at all as they form part of the basic structure itself as adopted by the Constituent Assembly.

(24) The observations of P. Jaganmohan Reddy, J. in Kesavananda Bharati or the observations in the Privy Purses case, H. M. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur and others etc. v. Union of India. : [1971]3SCR9 , to the effect that there is no issue between citizen and State which can be created as a political one and, thereforee, beyond judicial review, is not an absolute proposition and has to be appreciated in the context of the observations made. In fact in the Privy Purses case itself it was observed by Shah, J. :-

'ENFORCEMENTof those rights and obligations is governed by municipal laws and unless the jurisdiction of the courts is excluded in respect of any dispute the courts will be competent to grant relief.'

(25) In effect, thereforee, the approach of the courts has always been that if there is a statutory bar to judicial review it will be enforced. The limited nature of the bar provided by Article 363 of the Constitution was acknowledged by G. K. Mitter, J. in the Privy Purses case. Clause (5) of Article 352 creates a specific and absolute bar in unambiguous language. This bar cannot be called destructive of the federal structure or near federal structure postulated by the Constitution.

(26) Lastly, Mr. Shubh asserted that the impugned proclamation having been placed before the Houses of Parliament has merged into the resolutions passed by both the Houses of Parliament and ceases to have any force by itself. So, it is urged what is now to be tested is the validity of the resolutions of the Houses of Parliament and not the proclamation which has ceased to exist. It is urged that clause (5) of Article 352 is no bar to such judicial review. In our opinion the contention is wholly ill-founded. The Proclamation issued under clause (1) of Article 352 subsists by itself. Clause (2) of Article 352 only lays down what is to be done subsequent to the issue of Proclamation. It provides for revocation of the Proclamation by a subsequent Proclamation. It further provides for the Proclamation and the consequences if it is not so placed. Article 352 of the Constitution is comprehensive and the Proclamation under it can cease to be operative only in the manner postulated by sub-clause (a) of clause (2) of the Article. thereforee, it cannot be said that the Proclamation ceases to exist because it has been approved by resolutions of the Houses of Parliament. Indeed, the resolutions of the Houses of Parliament approving the Proclamation issued under clause (1) of Article 352 only result in sanctifying the Proclamation made by the President. As has been observed by this court in Smt. Manek Ban v. Union of India I.L.R. 1975 Del 820 with reference to the Proclamation of emergency of 1971:-

'FURTHER as provided by clause (2) of Article 352 such Proclamation is to be laid before each House of Parliament and shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both the Houses of Parliament. It follows, thereforee, the action of the Executive in declaring an emergency under clause (1) of Article 352 is sanctified by resolutions of the Houses of Parliament. In other words, the representatives of the people and the States put their seal on the executive action.'

The approbation granted to the President's action does not mean that the President's action has ceased to exist or is merged into the resolutions of the Houses of Parliament. thereforee, there is no force in this last contention.

(27) For the reasons stated above, we dismiss both petitions, as has been ordered earlier.


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