1976 (4) TMI 211 - SC - FEMA

Article 21 furnishes the guarantee of Lex , which is equated with statute law only, and not of jus spheres of executive and legislative and judicial powers with regard to personal liberty and preventive detention.

Summary

Issues Involved:
1. Validity of Section 16A(9) of the Maintenance of Internal Security Act (MISA).
2. Effect of the Presidential Order dated June 27, 1975, under Article 359(1) on the maintainability of writ petitions under Article 226.
3. Scope and extent of judicial scrutiny in habeas corpus petitions during the Emergency.
4. Relationship between the rule of law and the suspension of fundamental rights during the Emergency.

Issue-Wise Analysis:

1. Validity of Section 16A(9) of the Maintenance of Internal Security Act (MISA):
The court examined whether Section 16A(9) of MISA, which treats the grounds of detention and related information as confidential and against public interest to disclose, is constitutionally valid. The argument was that this provision encroaches upon the High Court's power under Article 226. The court held that Section 16A(9) enacts a genuine rule of evidence and does not detract from the jurisdiction of the High Court. It was concluded that Section 16A(9) is constitutionally valid as it is a procedural provision determining substantive rights and does not impede the High Court's constitutional powers.

2. Effect of the Presidential Order dated June 27, 1975, under Article 359(1) on the maintainability of writ petitions under Article 226:
The Presidential Order dated June 27, 1975, suspended the right to move any court for the enforcement of rights conferred by Articles 14, 21, and 22 during the Emergency. The court ruled that this order bars the maintainability of writ petitions under Article 226 challenging detention orders on grounds such as mala fides, non-compliance with the Act, or extraneous considerations. The court emphasized that the Presidential Order takes away the locus standi of a person to challenge the legality of detention during the Emergency, thereby affecting the powers of the courts indirectly but within the constitutional framework.

3. Scope and extent of judicial scrutiny in habeas corpus petitions during the Emergency:
The court acknowledged that the area of judicial scrutiny remains the same as laid down in previous decisions, subject to the limitation imposed by Section 16A(9) of MISA. The court reiterated that during the Emergency, the grounds, information, and materials on which the detention order is based are treated as confidential and cannot be disclosed, thus limiting the court's ability to scrutinize the detention orders fully. However, the court maintained that the executive's actions must still conform to the law, and any unlawful detention would be actionable once the Emergency is over.

4. Relationship between the rule of law and the suspension of fundamental rights during the Emergency:
The court discussed the principle of the rule of law, which mandates that the executive cannot interfere with personal liberty except by authority of law. However, it held that this principle, when embodied in Article 21, is subject to the limitations imposed by Article 359(1) during the Emergency. The court concluded that the suspension of the enforcement of Article 21 by the Presidential Order means that the right to challenge the legality of detention is also suspended. The court emphasized that while the rule of law remains a fundamental principle, its enforcement can be constitutionally suspended during an Emergency to ensure national security and effective governance.

Conclusion:
The court allowed the appeals, set aside the judgments of the High Courts, and directed that the writ petitions be disposed of in accordance with the law as laid down in the judgment. The court affirmed the validity of Section 16A(9) of MISA and upheld the effect of the Presidential Order dated June 27, 1975, on the maintainability of writ petitions under Article 226 during the Emergency.