P. Govindan Nair, C.J.
1. This is one in a series of petitions praying for the issue of a Writ of Habeas Corpus, arising from the orders of detention passed under Section 3(1)(c) of the Maintenance of Internal Security Act, 1971, for short, the Act, as amended by the Maintenance of Internal Security (Amendment) Ordinance, 1974 (No. 11 of 1974), issued by the President under Article 123 of the Constitution, It is by the amending Ordinance that Section 3(1)(c) was enacted which is in these terms:
3. Power to make orders detaining certain Persons : - (1) The Central Government or the State Government may-
(c) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to the conservation of foreign exchange or with a view to preventing him from-
(i) smuggling goods, or
(ii) abetting other persons to smuggle goods or
(iii) dealing in smuggled goods
it is necessary so to do, make an order directing that such person be detained.
2. By order dated 20-9-1974, the Additional District Magistrate and Deputy Collector (Central), Cannanore, directed the detention of one Sri. K. S. Abdulla on the ground that he was satisfied that it was necessary to do so to prevent Sri Abdulla 'from abetting other persons to smuggle goods' (Ext. P1). Sri. K. S. Abdulla was arrested at Manjeswaram by the Circle Inspector of Police, Kasaragode at 9.30 A. M. on 24-9-1974 after serving on him the original of Ext. P1. By Ext. P2 dated 28-9-1974 the grounds of detention were communicated to the detenu. In the meantime, on the 21st September, 1974 the Central Government had also passed an order under Section 3(1)(c) of the Act directing that the same person, Sri. K. S. Abdulla be detained and kept in custody in Central Jail, Trivandrum. Ext. P3 is a copy of the said order. It is stated in Ext. P3 that the Central Government are satisfied that it is necessary to detain and keep Sri. Abdulla in custody with a view 'to preventing him from smuggling goods or abetting other persons to smuggle goods.' Grounds of this order of detention were communicated to the detenu by Ext. P4 dated 28th September, 1974. The petitioner who is the wife of the detenu has challenged the two orders of detention Exts. P1 and P3 on various grounds. It is contended that the grounds stated in Exts. P2 and P4 are vague, they are irrelevant, there is no rational or proximate connection between the incidents mentioned and the conclusions expressed to have been arrived at by the detaining authorities, the grounds stated did not factually exist and are not supported by any materials and that the orders were passed without bona fides. The petitioner has also put forward a plea that the impugned orders of detention were made mala fide. The validity of Ordinance 11 of 1974 was also questioned. The provision in Section 16-A introduced by the Ordinance was attacked as discriminatory and violative of Article 14 of the Constitution.
3. This petition was elaborately argued on the above points on the 6th, 7th and 8th of this month but the arguments of counsel for the petitioner were not closed and at the request of counsel the case was adjourned to 18-11-1974. On that day the case could not be heard and the arguments were continued on the 19th, 20th and the 21st. In the meantime on the 16th November, 1974 the President of India, acting under Article 359 of the Constitution, issued an order in these terms:
G. S. R. 659(E). 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 fights 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 Clause(1) of Article 352 of the Constitution on the 3rd December, 1971, is in force, whichever period expires earlier.
2. This order shall extend to the whole of the territory of India.
4. Nearly three years earlier, on the 3rd December, 1971, the President had issued the Proclamation of Emergency in exercise of the powers conferred by Clause (1) of Article 352 of the Constitution whereby it was declared 'that a grave emergency exists whereby the security of India is threatened by external aggression.' This proclamation removed the restrictions imposed by Article 19 on the power of the State to make any law or to take any executive action (Article 358).
5. When the hearing of the case was resumed on the 19th, Sri. Sorabji, counsel appearing for the Union of India, the 3rd respondent, raised the preliminary objection that many of the arguments advanced by the petitioner's counsel had ceased to be available to the petitioners in view of the Order of the President dated 16th November, 1974 under Article 359(1) of the Constitution already read. Since this raised an important question common to this petition as well as a number of other petitions for the issue of Writs of Habeas Corpus, all counsel who were interested in opposing the stand taken up by counsel for the Central Government were permitted to intervene. Arguments supporting the petitioner's stand were accordingly advanced by other counsel also. We shall advert to those arguments in due course.
6. The main point that arises out of the preliminary objection and the arguments in reply concerns the scope and effect of the President's order dated 16th November issued under Article 359(1) of the Constitution. Counsel appearing for the petitioner stated before us that he is not challenging the validity of the order passed by the President. Hence the question that we are called upon to decide in this case is whether notwithstanding the Order of the President under Clause (1) of Article 359 of the Constitution in specific terms taking away the right to move any court with respect to orders made or to be made thereafter under Section 3(1)(c) of the Act as amended by Ordinance 11 of 1974 for the enforcement of the rights conferred by Articles 14, 21, and Clauses (4), (5), (6) and (7) of Article 22, of the Constitution, and the further declaration by the order that all proceedings pending in any court for the enforcement of any of the aforesaid rights with respect to orders of detention made shall remain suspended for a period of six months from the date of issue of the order or for the period during which the proclamation of Emergency issued remains in force, whichever period expires earlier, it is open to the petitioner to challenge the orders passed against him under Section 3(1)(c) of the Act as amended by Ordinance 11 of 1974, and pray for the issue of a Writ of Habeas Corpus for the release of the detenu relying on the provision in Section 8(1) of the Act and advance the same contentions which were available to the detenu before the Order of the President, on the strength of Article 22(5) of the Constitution read with Section 8(1) of the Act. Counsel on behalf of the Union contended that it is the substance of the plea raised by the detenu that should be given importance and not the mere form and if in substance the detenu is seeking to enforce any of the fundamental rights referred to in the Presidential Order the bar imposed by the Order will be attracted. For this purpose it makes little difference whether the petitioner's plea is based on the rights embodied in the Constitution or on the same rights as incorporated in the Act. Sri Sorabji argued that if the rights put forward by the petitioner are in essence basically the same as those conferred by any of the Articles mentioned in the Order of the President, then there could be no motion for the enforcement of those rights even if reliance is placed by the petitioner on the section of the statute, to be more specific, on Section 8(1) of the Act. Counsel contended that the rights conferred by Section 8(1) of the Act are substantially the same as those guaranteed by Article 22(5) of the Constitution and when the rights under Article 22(5) cannot now be enforced, to say that the same rights can be enforced by merely placing reliance on Section 8(1) of the Act would be a very artificial, unrealistic and unsubstantial approach to the question. The petitioner's answer was that the President has no authority by an Order under Article 359 to interfere with the operation of the provisions of any statute and if the rights under the Constitution have been embodied in a statute duly passed by Parliament, as long as that statute is in force, the rights conferred by its provisions will not cease to exist notwithstanding the fact that there has been a suspension of the right to move any court to enforce the very same rights embodied in the Articles of the Constitution mentioned in the Presidential Order. We shall examine these contentions:
7. Before we proceed to deal with the decisions that have been relied on by counsel on both sides, it will be convenient to refer to the relevant provisions of the Constitution and the objects sought to be achieved by those provisions. Article 352 empowers the President, if he is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by way of external aggression or internal disturbance, to declare so by a proclamation. This power is to be exercised by the President on his subjective satisfaction which is not justiciable. The necessary consequence of such a declaration would be to give freedom to the State to make any law or to take any executive action without the restrictions imposed by Article 19 of the Constitution (Article 358). During the existence of an emergency therefore, the State as defined in Part III of the Constitution would be untrammelled by the various well-known guarantees conferred in favour of citizens by Article 19 of the Constitution. This result follows automatically on the declaration of emergency. In addition, the President has been conferred the power by order to declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of any of the rights so mentioned shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the order (Article 359(1)), and this Order may be extended to the whole or any part of the territory of India (Article 359 (2)). The object is evident and clear. During an emergency declared under Article 352, after an order has been passed by the President under Article 359(1) of the Constitution, there shall not be any motion before any court for the enforcement of such of the rights conferred by Part III of the Constitution as are mentioned in the President's Order. Prima facie therefore, the effect of such an order would be to neutralise or to make ineffective or to make non-available the rights conferred by Part HI as are mentioned in the Order. Article 19 deals with the well-known freedom but those well-known freedom can be infringed by law during the existence of an emergency as declared by the President under Article 352. In other words, during such times, the Parliament or the Legislature if free to enact laws uninhibited by the pro-visions of Article 19 of the Constitution and no law made by Parliament or any Legislature shall be liable to be impugned during the said period as infringing (he freedoms guaranteed by Article 19. Article 359, as we see it, goes a step further and gives the power to the President to make certain other fundamental rights specified in the Order issued under that Article unavailable during the period of emergency or for the shorter period mentioned in the Order. The correct approach in understanding the effect of the Order of the President is to seek and find out what, in substances, is the nature and content of the rights the enforcement of which stands barred. If the rights sought to be enforced through court are identifiable as or directly relatable to the rights mentioned in the President's order it would be necessary to hold that such rights, whether as embodied in the Articles of the Constitution mentioned in the President's Order or in any statute passed by Parliament would be unavailable after the passing of the Order. The President's Order mentions Article 14. It would not therefore be possible to contend that Section 3 (1) (c) of the Act as amended by Ordinance 11 of 1974 or any of the provisions thereof is discriminatory (1968 SC 173). Passing on to the other Articles mentioned in the Order, we find Article 21 and Clauses (4), (5), (6) and (7) of Article 22. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. The neutralisation of Article 21 may not have the effect of wiping out a law already made by Parliament providing for the deprivation of life or personal liberty. But when we come to Clause (5) of Article 22, what we find is that the clause itself has provided certain procedural safeguards in favour of persons taken into custody as a measure of preventive detention. Thus those under preventive detention have been conferred certain rights constitutionally. Clause (5) of Article 22 insists that when a person is detained under a law providing for preventive detention, the authority making the order shall as soon as may be, communicate to such person the grounds on which the order has been made and shall further afford him the earliest opportunity of making a representation against the order. These are specific rights conferred by the Constitution itself on a person who has been detained under a law providing for preventive detention. Any law providing for preventive detention should therefore contain provisions for making grounds available to the detenu as early as may be and enabling him to make a representation, as observed by the Supreme Court in State of Bombay v. Atma Ram Shridhar Vaidya : 1951CriLJ373 :
Article 22 prescribes the minimum procedure that must be included in any law permitting preventive detention and as 'and when such requirements are not observed the detention, even if valid ab initio, ceases to be 'in accordance with procedure established by law'.
So every statute providing for preventive detention must incorporate in its provisions the safeguards mentioned in Article 22(5). If this be so, the enumeration of the very -same safeguards in the statute does not create in the detenu rights other than those conferred by Clause (5) of Article 22 but can only amount to a reiteration or repetition of the same rights. We may perhaps justifiably use the expression 'reflection' of the same rights. What we see in a statute would then be the image of Clause (5) of Article 22. Carrying the anology further, if the content, scope and ambit of the right under Clause (5) of Article 22 is what is contained in a section of a statute providing for preventive detention so as to constitute an image or reflection of the constitutional rights, would the reflection remain if the object reflected (by the constitutional right) was temporarily effaced. We do not think so. Unaided by authority therefore, we think, we will have to come to the conclusion that any provision contained in a statute providing for preventive detention which incorporates the safeguards conferred on detenus by Clause (5) of Article 22 will not be enforceable through court during the period when the rights under Clause (5) of Article 22 have been suspended by a Presidential Order under Article 359. The suspension will obliterate the reflection or the image as well.
8. We have only to look at Section 8(1) of the Act to understand that it is nothing more than a reflection or image of Article 22(5). This is how the section is worded:
8. Grounds of order of detention to be disclosed to persons affected by the Order : - (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.
(2) Nothing in Sub-section (1) shall require the authority to disclose facts which it considers to be against the Public interest to disclose.
9. Sri. M. C. Chagla appearing on behalf of the petitioner contended that the suspension of the right to enforce Clause (5) of Article 22 will not also wipe out the above statutory provisions. Counsel argued that procedure already established by law, will not cease to exist by Article 21 being suspended. Such suspension may enable Parliament to make a fresh law altering the procedure earlier established by law or even repeal such law. It was emphasised that such change can be effected only by a law made by Parliament and that the Presidential Order cannot have any such effect. So it was urged that Section 8(1) of the Act must be complied with even after the right to move the court to enforce the rights conferred by Article 22(5) has been suspended by the President by the order issued under Clause (1) of Article 359. If this argument is accepted the effect would be to hold that a constitutional compulsion which necessitates the incorporation of the minimum procedural safeguards guaranteed by Article 22(5) in every statute providing for preventive detention would defeat and virtually nullify the exercise of the important power conferred on the President by Clause (1) of Article 359 to suspend the said constitutional guarantee hi times of emergency. In other words a compliance with Articles 21 and 22(5) and the enacting of law in conformity with those provisions would effectively nentralise the power of the President to suspend the rights conferred by the Articles in Part III of the Constitution. Such a position cannot be accepted. We must therefore examine the true nature of the rights that are sought to be enforced by the detenu. There can be little doubt that Clause(5) of Article 22 confers valuable rights. They are fundamental rights. They can be suspended by the President under Clause (1) of Article 359. This power cannot be defeated by a law made under the Constitution in compliance with the Constitutional provisions. To hold otherwise would mean that a creature of the Constitution would destroy a part of the Constitution itself. If the right sought to be established is essentially and basically the right under Clause (5) of Article 22, the process of the court would not be available for that purpose during the period of operation of the Presidential Order suspending such right, These same rights cannot be allowed to reappear and reassert themselves masquerading as safeguards provided to the detenu under Section 8(1) of the Act.
10. Shri M. C. Chagla then urged that -personal liberty is so paramount that it is the duty of the High Courts and the Supreme Court to safeguard such liberty and that the courts should lean towards upholding such liberty in interpreting the constitution and the statutes. Shri Chagla contended that the right of a citizen to liberty should be upheld even at the cost of sacrificing the concept of social justice and the interests of the community and relied on the following passage from the judgment of Mathew, J., in Prabhu Dayal Deorab etc. v. District Magistrate, Kamrup : 1974CriLJ286 :
67. The facts of the cases might induce mournful reflection how an honest attempt 'by an authority charged with the duty of taking prophylactic measure to secure the maintenance of supplies and services essential to the community has been frustrated by what is popularly called a technical error. We say and we think it is necessary to repeat, that the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of a citizen except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of procedure. And observance of procedure has been the bastion against wanton assaults on personal liberty over the years. Under our Constitution, the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with the procedure established by law. The need today for maintenance of supplies and services essential to the community cannot be over-emphasised. 'There will be no social security without maintenance of adequate supplies and services essential to the community. But social security is not the only goal of a good society. There are other values in a society. Our country is taking singular pride in the democratic ideals enshrined in its constitution and the most cherished of these ideals is personal liberty. It would indeed be ironic if, in the name of social security, we would sanction the subversion of this liberty. We do not pause to consider whether social security is more precious than personal liberty in the scale of values, for, any judgment as regards that would be but a value judgment on which opinions might differ. But whatever be the impact on the maintenance of supplies and services essential to the community, when a certain procedure is prescribed by the Constitution Or the laws for depriving a citizen of his personal liberty, we think it our duty to see that that procedure is rigorously observed, however strange this might sound to some ears.
This argument is best answered by quoting from another judgment of the Supreme Court in Makhan Singh Tarsikka v. The State of Punjab : 1964CriLJ217 :
The appellants have also relied upon the observations made by Lord Atkin in the case of Ezhubayi Elako v. Officer Administering the Government of Neigeria AIR 1931 PC 248. 'In accordance with British Jurisprudence', said Lord Atkin, 'no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice. And it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the executive'. These noble sentiments so eloquently expressed by Lord Atkin as well as his classic minority speech in the case of Liversidge, 1942 AC 206 evoke a spontaneous response in the minds of all of us who have taken the oath to administer law in accordance with our Constitution and to uphold the fundamental rights of citizens guaranteed by the Constitution. This Court is fully conscious of the solemn duty imposed on it by Article 32 which constitutes it the Custodian and Guardian of the citizens' fundamental rights. But we must remember that the democratic faith in the inviolable character of individual liberty and freedom and the majesty of law which sustains it must ultimately be governed by the Constitution itself. The Constitution is the law of laws; the paramount and supreme law of the country. It has itself enshrined the fundamental rights of the citizens in the relevant articles of Part III and it is no doubt the duty of this Court as the Custodian of those rights to see that they are not contravened contrary to the provisions of the Constitution. But the Constitution itself has made certain emergency provisions in Chapter XVIII with a view to enable the nation to meet grave emergencies like the present, and so, in dealing with the question about the citizen's right to challenge to validity of his detention, we will have to give effect to the plain words of Article 359(1) and the Presidential Order issued under it. As we have already indicated, the only reasonable construction which can be placed upon Article 359(1) is to hold that, the citizen's right to take any legal proceeding for the enforcement of his fundamental rights which have been specified in the Presidential Order it suspended during the prescribed period. It Is, in our opinion, plain that the right specified in Article 359(1) includes the relevant right, whether it is statutory, Constitutional or Constitutionally guaranteed, and the words 'any court' refer to all courts of competent jurisdiction and naturally include the Supreme Court and the High Courts. If that be so, it would be singularly inappropriate for this Court to entertain an argument which seeks to circumvent these provisions by suggesting that the right of the detenu to challenge the legality of his detention under Section 491(1)(b) does not fall within the scope of the said article. The said argument concentrates attention on the mere form of the petition and ignores the substance of the matter altogether, In the context, we think, such a sophisticated approach which leans solely on unrealistic and artificial subtlety is out of place and is illogical, unreasonable and unsound. We must, therefore, hold that the Punjab and the Bombay High Courts were right in coming to the conclusion that the detenus before them were not entitled to contend that the impugned Act and the statutory Rule under which they were detained were void for the reason that they contravened Articles 14, 21 and 22(4), (5) and (7).
With very great respect we adopt this reasoning.
10-A. Sri. Jethmalani who addressed arguments on behalf of the petitioners in some of the connected writ petitions contended that the rights guaranteed by Article 22(5) of the Constitution were available in India before the commencement of the Constitution also and that even if the Constitutional rights are suspended those earlier rights which he called common law rights' would remain. Our attention was invited to the decisions of the Bombay High Court in In re Shoilen Dey AIR 1949 Bom 75 : (1949) 50 Cri LJ 155 Anwari Begum v. Commr. of Police AIR 1949 Bom 82; In re Anant Mahadev Mandekar AIR 1949 Bom 95; Emperor v. Abdul Majid AIR 1949 Bom 387 and also to the decision of the Federal Court in Machindar Shivaji v. The King AIR 1950 PC 129 : (1950) 51 Cri LJ 1480 in support of the contention that such rights existed before the Constitution. This argument cannot be accepted for two reasons. The rights that have been upheld by the decisions referred to were rights specifically conferred by the statutes referred to in those decisions. Such statutory law cannot be said to be the common law of the land. Secondly, even assuming that there had been a common law with reference to the aforesaid matter, when that law got codified and embodied in a statute, the common law would not any more be in existence as it stands superseded or replaced by the statute in respect of all matters covered by it. The same principle should apply if such common law rights became enshrined in the Constitution as fundamental rights guaranteed by it. We may, with advantage, refer in this connection to the observations of Rankin, C. J. in Girindara Nath Banerjee v. Birendra Nath Pal ILR. 54 Cal 727 : AIR 1927 Cal 496 with reference to the right of a party to seek the issue of a writ of habeas corpus as a commons law right after the introduction of Section 491 in the Code of Criminal Procedure. The learned Chief Justice considered the history of the development of the law on this point and came to the conclusion that the relief of a writ in the nature of a Habeas Corpus could be claimed after 1923 solely under Section 491 of the Code of Criminal Procedure enacted; in 1923. A Full Bench of the Madras High Court in District Magistrate, Trivandrum v. Mammen Mapillai ILR (1939) Mad 708 : AIR 1939 Mad 120 (FB) took the same view and ruled that it had no power to issue a. writ of Habeas Corpus as known to the English Common Law after the advent of the Code of Criminal Procedure. It held that the powers of the court are confined in that respect to those conferred by Section 491 of the Code of Criminal Procedure which gives authority to issue directions of the nature of Habeas Corpus. The matter was raised before the Judicial Committee of the Privy Council in Matthen v. District Magistrate of Trivendrum 66 Ind App 222 : AIR 1939 PC 213 and their Lordships of the Judicial Committee observed that the reasoning of Rankin, C. J. in the case of ILR 54 Cal 727 : AIR 1927 Cal 496 was so clear and convincing that they were content to adopt it as also to state that they were in entire agreement with the view : expressed by him. These decisions have been referred to by the Supreme Court with approval in : 1964CriLJ217 , We cannot therefore accept the contention that the rights embodied in Article 22(5) of the Constitution continue to exist - even assuming that they had existed before the Constitution - after these rights have been suspended by an Order of the President under Article 359 of the Constitution. There is therefore nothing to fall back upon if Article 22(5) is not available, and we have already said that Section 8(1) of the Act would be of no help.
11. Reliance was placed on two decisions of the Supreme Court, which, it was contended, would militate against the view that Section 8(1) of the Act would not be available after the Presidential Order under Clause (1) of Article 359 of the Constitution. The decisions are in Durgadas Shirali v. Union of India : 1966CriLJ812 and that in Jaichand Lal Sethia v. The State of West Bengal : 1967CriLJ520 . In the former case Justice. Ramaswami made the following observations in paragraph 5:
Before proceeding to deal with these points raised on behalf of the petitioner it is necessary to state that in : 1964CriLJ217 this Court had occasion to consider the legal effect of the proclamation of Emergency issued by the President on October 26, 1962 and two orders of the President - one dated November 3, 1962 and the other dated November 11, 1962 issued in exercise of the powers conferred by Clause (1) of Article 359 of the Constitution. It was held by this Court that the sweep of Article 359 and the Presidential Order issued under it is 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 fundamental rights under Articles 14, 19, 21 and 22. It was pointed out that during the pendency of the Presidential Order the validity of the Ordinance or any rule or order made thereunder cannot be questioned on the ground that it contravenes Articles 14, 21 and 22. But this limitation cannot preclude a citizen from challenging the validity of the Ordinance or any rule or order made thereunder on any other ground. If the petitioner seeks to challenge the validity of the Ordinance, rule or order made thereunder on any ground other than the contravention of Articles 14, 21 and 22, the Presidential Order cannot come into operation. It is not also open to challenge the Ordinance, rule or order made thereunder on the ground of contravention of Article 19 because as soon as a Proclamation of Emergency is issued by the President under Article 358 the provisions of Article 19 are automatically suspended. But a petitioner can challenge the validity of the Ordinance, rule or order made thereunder on a ground other than those covered by Article 358, or the Presidential Order issued under Article 359(1). Such a challenge is outside the purview of the Presidential Order. For instance, a citizen will not be deprived of his right to move an appropriate Court for a writ of habeas corpus on the ground that his detention has been ordered mala fide. Similarly, it will be open to the citizen to challenge the order of detention on the ground that any of the grounds given in the order of detention is irrelevant and there is no real and proximate connection between the ground given and the object which the legislature has in view.
Much reliance has been placed on the observations that 'it will be open to the citizen to challenge the order of detention on the ground that any of the grounds given in the order of detention is irrelevant and there is no real and proximate connection between the ground given and the object which the legislature has in view.'
12. On the basis of this observation Sri Kalathil Velayudhan Nair contended that irrelevancy of the ground and lack of a rational connection or nexus between the ground and the order of detention are aspects which have been emphasised with reference to the guarantee under Article 22(5) of the Constitution, and vagueness of the ground being also one of the aspects emphasised by the decisions, in understanding the content of Article 22(5) the above observations of Justice Ramaswami of the Supreme Court would clearly show that all such rights would still be available to a citizen even after the Presidential Order under Article 359(1) of the Constitution. We are unable to accept this contention. It has to be remembered that in both the decisions above cited the learned judge was dealing with orders of detention passed under Rule 30 of the Defence of India Rules which did not contain any provision at all for furnishing the detenu with the grounds of detention. The 'grounds' referred to by the learned Judge in the passage relied on by petitioner's counsel are not, therefore, the grounds furnished to the detenu under any provision corresponding to Article 22(5), but only the reasons for detention mentioned in the order of detention itself. The observation of the learned Judge is only to the effect that if the grounds stated in the order of detention are irrelevant in relation to the object of the statute conferring the power to detain, the order of detention can in such event be challenged on the said plea even during the operation of the President's Order passed under Article 359(1). The irrelevancy referred to in the passage quoted is, therefore, one to be judged with reference to the object of the legislation; that is, the ground stated in the order of detention has no real and proximate connection with the object that the legislature had in view. That this is so is clear from what has been discussed in the subsequent paragraphs (6 and 7) of the same judgment : 1966CriLJ812 . Ramaswamy, J., had occasion to deal with the question again in : 1967CriLJ520 . In paragraph 5 of the judgment after dealing with the effect and consequence of the Presidential Order, the learned Judge observed:
But the appellant can challenge the validity of the order on a ground other than those covered by Article 358, or the Presidential Order issued under Article 359(1). Such a challenge is outside the purview of the Presidential Order. For instance, a citizen will not be deprived of the right to move an appropriate Court for a writ of habeas corpus on the ground that his detention has been ordered mala fide. Similarly, it will be open to the citizen to challenge the order of detention on the ground that any of the grounds given in the order of detention is irrelevant and there is no real and proximate connection between the ground given and the object which the legislature has in view. It may be stated in this context that a mala fide exercise of power does not necessarily imply any moral turpitude as a matter of law. It only means that the statutory power is exercised for purposes foreign to those for which it is in law intended. In other words, the power conferred by the statute has been utilised for some indirect purpose not connected with the object -of the statute or the mischief it seeks to remedy.
13. The passage in the earlier judgment when read in the light of this clarification by the learned Judge can cover only those cases where the provision in a statute has been utilised for purposes other than those sanctioned by the Act,
14. Article 22(5), it may be remembered, does not detail the reasons or the grounds on which preventive detention can be ordered. Those are now contained in the Act and are mentioned in Section 3 thereof. If the detention is not on any of the grounds mentioned in Section 3 or the grounds stated in the order of detention are irrelevant in that they have no proximate connection with the grounds mentioned in the statute the detention may then be said to be for grounds which have no relevance with reference to the object of the statute. The two decisions relied on by the petitioner's counsel will not help to sustain the argument that the validity of the detention can be challenged by the detenu even after the President's order on the ground that Section 8 (1) of the Act has not been complied with, though it embodies the same rights as are guaranteed by Article. 22(5).
15. Counsel for the petitioner laid much emphasis on paragraph 35(a) of the judgment in : 1964CriLJ217 in support of the contention that even rights guaranteed by the Constitution under Article 22(5), notwithstanding their non-availability because of the Presidential Order, are enforceable if such rights have been incorporated in the mandatory provisions of a statute. We shall read paragraph 35(a):
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 the 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 his release on such a ground cannot be affected by the Presidential Order.
The 'mandatory provisions of the Act' referred to in this passage can only be understood as provisions relating to matters other than those covered by Article 22(5) of the Constitution. This is clear on a reading of the judgment as a whole.
16. The decision in Ananda Nambiar v. The State of Punjab : 1966CriLJ586 was relied on with particular reference to paragraphs 4 and 5 where the learned Chief Justice Gajendragadkar observed as follows:
(4) We are not impressed by this argument. In construing the effect of the Presidential Order, it is necessary to bear in mind the general rule of construction that where an Order purports to suspend the fundamental rights guaranteed to the citizens by the Constitution, the said Order must be strictly construed in favour of the citizens' fundamental rights. It will be noticed that the sweep of the Order is limited by its last clause. This Order can be invoked only in cases where persons have been deprived of their rights under Articles 14, 21 and 22 under the Defence of India Ordinance or any rule or order made thereunder. In other words, if the said fundamental rights of citizens are taken away otherwise than under the Defence of India Ordinance or rules or orders made thereunder, the Presidential Order will not come into operation. The other limitation is that the Presidential Order will remain in operation only so long as the Proclamation of Emergency is in force. When these two conditions are satisfied, the citizen's right to move this Court for the enforcement of his rights conferred by Articles 14, 21 and 22 is no doubt suspended; and that must mean that if the citizen wants to enforce those fights by challenging the validity of the order of his detention, his right to move this Court would be suspended in so far as he seeks to enforce the said rights.
(5) But it is obvious that what the last clause of the Presidential Order Postulates is that the Defence of India Ordinance or any rule or order made thereunder is valid. It is true that during the pendency of the Presidential Order, the validity of the Ordinance, rule or order made thereunder cannot be questioned on the ground that they contravene Articles 14, 21 and 22; but this limitation will not preclude a citizen from challenging the validity of the Ordinance, rule or order made thereunder on any other ground. If the petitioner seeks to challenge the validity of the Ordinance, rule or order made thereunder on any ground other than the contravention of Articles 14, 21 and 22, the Presidential Order cannot come into operation. In this connection, we ought to add that the challenge , to the Ordinance, rule or order made thereunder cannot also be raised on the ground of the contravention of Article 19, because as soon as a Proclamation of Emergency is issued by the President, under Article 358 the provisions of Article 19 are automatically suspended. But the point still remains that if a challenge is made to the validity of the Ordinance, rule or order made thereunder op a ground other than those covered by Article 358, or the Presidential Order issued under Article 359(1), such a challenge is outside the purview of the Presidential Order; and if a petition is filed by a citizen under Article 32 on the basis of such a challenge, it cannot be said to be barred, because such a challenge is not covered by the Presidential Order at all.
We find nothing in these passages which militate against the view that we have expressed.
17. Sri M. N. Sukumaran Nair relied on the passages contained in paragraphs 27, 28 and 29 of the decision in Ram Manohar Lohia v. The State of Bihar : 1966CriLJ608 . Those Paragraphs have to be understood in the light of the contentions raised in that ease that the detention order itself showed that it was not one passed for the maintenance of 'public order' but for the maintenance of 'law and order' which the Supreme Court held was a contention not relevant to the object of the Act.
18. The only other decision that has been relied on is that of Justice Subba Rao in The State of Maharashtra v. Prabhakar Pandurang Sanzgiri : 1966CriLJ311 . What was ruled therein was-that the 'conditions' that can be imposed on a detenu are only those that are prescribed by Sub-rule (4) of Rule 30 of the Defence of India Rules and the restriction that a manuscript copy of a book written by the detenu should not be sent for publication was not warranted by the rule. This decision does not help to solve the controversy as to whether or not the guarantee under Article 22(5) reflected by Section 8 (1) of the Act is available after the Presidential Order.
19. Sri Siva Sankara Panicker urged that the mandatory provisions in Section 8 (1) of the Act even if they have only incorporated the safeguards contained in Article 22(5) of the Constitution will be enforceable at the instance of the detenu notwithstanding the Presidential Order. The same argument has already been advanced by other counsel and dealt with by us. Counsel also relied on passages from the judgment of Fazl Ali, J., in A. K. Gopalan v. State of Madras : 1950CriLJ1383 , Paragraph 60 onwards and laid emphasis on paragraph 77 in support of his contention that the law does not necessarily mean statute law but can take in common law as well and urged that the right to be heard was a part of common law as has been held by Fazl Ali, J. This view has not been accepted by the majority judgment and will be of no assistance to us. The points taken by Sri Kunhirama Menon have already been considered by us while dealing with the arguments advanced by the other counsel and hence no separate discussion is called for.
20. We think that the view that we have expressed is fully supported by the observations of the Supreme Court in (1964) 4 SCR 797 at pages 834, 835 and 836 : ((1964) 1 Cri LJ 269 at p. 289) which we shall extract in full:
The argument is that even if the Parliament thought that during the period of emergency, citizens reasonably suspected to be engaged in prejudicial activities should be detained without affording them the benefit of the Constitutional safeguards guaranteed by Article 22 (4), (5) and (7), the Parliament need not have enacted the Act and might well have left the executive to take action under the Preventive Detention Act of 1950, and since Parliament has chosen to pass the Act under challenge and has disregarded the Constitutional provisions of Articles 14 and 22, the exercise of legislative power by Parliament must, in the context, be held to be a colourable exercise of legislative power. This argument seems to assume that if the Parliament had expected the executive to detain citizens under the Preventive Detention Act of 1950 without giving them the benefit of the Constitutional safeguards prescribed by Article 22, their cases could have been covered if a Presidential Order had been issued under Article 359(1) in respect of such detentions.
The question is : is this assumption well founded? 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. We are referring to this matter only for the purpose of showing that the Parliament may have thought that the executive would not be able to detain citizens reasonably suspected of prejudicial activities by taking recourse to the Preventive Detention Act of 1950, and that may be the genesis of the impugned Act, If that be so, it would not be permissible to suggest that in passing the Act, Parliament was acting mala fide.
It is quite true that if the Act has contravened the citizens' fundamental rights under Articles 14 and 22, it would be void and the detentions effected under the relevant provisions of the said Act would be equally inoperative; but it must be remembered that it is precisely in this set of circumstances that Article 359(1) and the Presidential Order issued under it step in and preclude the citizen from enforcing his fundamental rights in any court. The said article as well as the Presidential Order issued under it indicate that there may be cases in which the specified fundamental rights of citizens have been contravened by executive action and the impugned executive action may be invalid on that account. That is precisely why the said article and the Presidential Order impose a ban against the investigation of the merits of the challenge during the period prescribed by the Order. Therefore the alternative argument urged in support of the plea that the impugned provisions of the Act amount to a colourable piece of legislation fails.
The question has not been decided by the Supreme Court but we derive great assistance from the passages in regard to the principles to be applied and we think, we should apply the same principles. So the emphasis must be on substance more than on form as pointed out in more than one place in the judgment in : 1964CriLJ217 .
21. Of course it will always be open to the detenu to challenge the statute itself on grounds other than those relatable to the Articles mentioned in the Presidential Order and also to contend that an order of detention was passed mala fide, that the authority which passed the order was not competent to exercise the power of detention conferred by the Act or that the power was exercised by such authority for purposes not sanctioned by the Act.
22. In the light of the above discussions we reject the petitioner's contention that the rights under Section 8 (1) of the Act would be enforceable even after the right to move a court to enforce the guaranteed rights under Article 22(5) have been suspended by the President. During the period when the President's Order is in operation, the detenu can enforce only such rights, if any, conferred by a statute which fall outside the ambit and scope of the guarantee under Article 22(5), and other rights that are not relatable to the fundamental rights referred to in the Presidential Order. So any contention based on failure to furnish to the detenu the grounds of detention or even the defects in the grounds furnished will not be available to the detenu since the obligation to furnish grounds stems from Article 22(5). We accordingly uphold the preliminary objection.
23. This petition will now be posted along with similar petitions for further hearing and disposal in accordance with the principles stated above.