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TMI Blog1966 (12) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... of which he was a member. On May 29, 1965, he was convicted by the Magistrate, First-Class, Delhi, of an offence under the Customs Act and sentenced to undergo rigorous imprisonment for a period of 9 months and to pay a fine of Rs. 2,000/-. The appeal filed by him to the Sessions Judge against that order was dismissed. The petitioner underwent imprisonment and also paid the fine. Before his term of imprisonment expired, the petitioner filed a writ of habeas corpus in the Circuit Bench of the Punjab High Court at Delhi challenging his detention. That petition was dismissed by Khanna, J., on merits. Before the learned Judge the constitutional validity of s. 3(2)(g) of the Act was not canvassed. The learned Judge held that the section authorised the Government to make the said order of detention on its subjective satisfaction and that the Court could not question its validity in the absence of any mala fides. He negatived the contention raised before him that an order under that sub-section could not be made for the purpose of completing an investigation in a conspiracy case, as no such limitation was found therein. In short, he dismissed the petition on merits. The present petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion on the question as to whether repeated applications for habeas corpus would be competent under our Constitution. That is a matter with which we are not concerned in the present proceedings." A decision which expressly leaves open a question cannot obviously be an authority on the said question. 'the said question, which was so left open, now falls to be decided. Conversely, the correctness of that decision does not call for any reconsideration in the present petition, for that is outside the scope of the question now raised before us. This leads us to the consideration of the scope of a writ of habeas corpus. The nature of-the writ of habeas corpus has been neatly summarized in Corpus Juris Secundum, Vol. 39 at p. 424 thus; "The writ of habeas corpus is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his caption and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf". Blackstone in his Commentaries said of this writ thus; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings (2) (No. 3)]. The Administration of Justice Act, 1960 has placed this view on a statutory basis, for under the said Act no second application can be brought in the same court except on fresh evidence. The American Courts reached the same conclusion, but on a different principle. In Edward M. Fay v. Charles Nola (9 L. Ed. 8593) the following passage appears : "As put by Mr. Justice Holmes in Frank v. Mangum (237 U.S. 348) : If the petition discloses facts that amount to loss of jurisdiction in the trial court, jurisdiction could not be restored by any decision of law. It is of the historical essence of habeas corpus that it lies to test proceedings so fundamentally lawless that imprisonment pursuant to them is not merely erroneous but void. Hence, the familiar principle that res judicata is inapplicable in habeas proceedings." The same view was expressed in Wong Doo v. United States (68 L.E.D. 999) Harmon Metz Waley v. James A. Johnston (86 L. E.d. 1302) : Salinger v. Loisel (1925) 265 U.S. 224) United States v. Shaughnessy ([1954] 347 U.S. 260): and others. But coming to India, so far as the High Courts are concerned, the same principle accepted by the English Courts will equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aration of emergency or the continuation of it is vitiated by mala fides or abuse of power, and (2) whether such a question' justiciable in a court of law. Our Constitution seeks to usher in a Welfare State where there is prosperity, equality, liberty and social justice. It accepts 3 concepts for bringing about such a State: (1) Federalism; (2) Democracy; (3) Rule of Law, in which fundamental rights and social justice are inextricably integrated. Under Part XVIII when the emergency is declared both the Legislative and the Executive powers of the Union are extended to States. The Federal Government is practically transformed into unitary form of Government. The fundamental rights of the people under Art. 19 are abrogated and the Executive is empowered to suspend the right to move the court for the enforcement of any other fundamental right. The executive is also empowered to direct that all or any other provisions relating to distribution of revenue be suspended during that period. Part XVIII appears to bring down the grand edifice of our Constitution at one stroke, but a little reflection discloses that the temporary suspension of the scheme of the Constitution is really intended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove any court for the enforcement of the rights conferred by Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of Article 352 thereof on the 26th October, 1962 is in force. In exercise of the powers conferred by clause (1) of Article 359 of the Constitution, the President hereby makes the following further amendment in Order No. GSR-1418 dated 30-10-1962 namely : In the said orders for the word and figure 'Article 21' the words and figures 'Article 14, Article 21' shall be substituted." Under Article 352 an emergency could be declared only when the security of India or of any part of the territory thereof is threatened whether by war or external aggression or internal disturbance, or when there is an imminent danger thereof; and any order issued under Art. 359 must have some correlation to the security of India, external aggression or internal disturbance. But the impugned order, the argument proceeded, was so wide as to deprive a foreigner of his fundamental rights though there was no connection between such deprivation and the security of India etc. To state it differently, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er shall be confined to whole or a part of the territory of India and during certain periods. But there is nothing in the Article which prevents the President from restricting the scope of the order to a class of persons, provided the operation of the order is confined to an area and to a period. The impugned orders apply to the entire country and the fact that only the persons who are affected by that order could not move the Court for the enforcement of their right, cannot make them any the less valid orders. The learned counsel then contended that Art. 359(1) did not authorise the President to make an order meting out discriminatory treatment to foreigners, and even if it did, not the order made in the instant case violated Art. 14 of the Constitution as there was no nexus between the classification of foreigners and citizens and the object for which the said order was made. Mr. Bindra, learned counsel contended that Art. 359 con- ferred an absolute power on the President subject to the limitations found thereunder to make an order declaring that the right to move any court for the enforcement of one or more of the rights conferred by Part III should remain suspended, and, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of the Constitution, the petitioner has lost his locus standi to move this Court during the period of emergency as already pointed out. That being so, the petition is not maintainable". This passage has nothing to do with the validity of the order made under Art. 359(1). What this Court said was that, as under the Ordinance the petitioner therein had no right to move the Court to enforce his fundamental right, he had no locus standi to question the validity of the Act, for, he could question the validity of the Act only if he could move the Court in regard thereto. We, therefore, hold that the validity of the President's order issued under Art. 359(1) could be questioned if it infringed the provisions of Art, 14 of the Constitution, The next question is whether it infrigned Article 14. Mr Pillai put his arguments in two ways : ([1964] 3 S.C.R, 442, 451) The President has made two orders under Art. 359(1); (i) GSR 1418 dated 30-10- 1962 in respect of foreigners; and (ii) GSR 164 dated 3-11- 1962 in respect of all, including foreigners. The terms of the order in regard to foreigners are without any limitations. But the order dated 3-11-1962 only affects persons who have been depr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ordi- nance. GSR 1418 has a greater sweep and it takes in other rights. Though there is some overlapping, the two categories of persons foreigners and citizens-offer different security and other problems. Both the orders are mainly intended to operate in different fields and their scope is different. We, therefore, do not see any merit in this contention also. It is then argued that the President's order GSR 1276 dated 27-8-1965 has no retrospective effect and, therefore, the petitioner is entitled to move the court. GSR 1276 was issued on 27-8-1965 .amending the earlier order by including Art. 14 therein. After 27-8-1965, therefore, no foreigner has the right to move the Court though his fundamental right under Art. 14 of the Constitution is violated. In that sense, the order is not retrospective but prospective. It only operates on the right of a person to move the Court.As the petitioner in the present case filed his petition on 12th May, 1966, that is subsequent to the promulgation of the order, he has ceased to have any right to move this Court. The fact that he complained of his detention for a period earlier to that date has no bearing on the question of the maintainabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion order passed by the Central Government under s. 3(2)(g) of the Foreigners Act, 1946 and asking for H the issue of a writ of habeas corpus is not a judgment, and does not operate as res judicata. That order does not operate as a bar to the application under Art. 32 of the Constitution asking for the issue of a writ of habeas corpus on the same facts. The petitioner has fundamental right to move this Court under Art. 32 for the issue of a writ of habeas corpus for the protection of his right of liberty. The present petition must, therefore, be entertained and examined on the merits. Order 35, Rule 3 of the Supreme Court Rules provides that a petition for a writ of habeas corpus under Art. 32 shall state whether the petitioner has moved the High Court concerned for similar relief and if so, with what result. This rule is a salutary safeguard against an abusive use of a petition for the issue of a writ of habeas corpus under Art. 32. The previous dismissal of a petition for a writ of habeas corpus by a High Court is one of the matters which this Court may take into consideration at the preliminary hearing of the writ petition under Art. 32 in forming the opinion whether a prima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the President under Art. 359(1) is not a law within the meaning of Art. 13(2). Again, an order of the President suspending the right to move any Court for the enforcement of the right conferred by Art. 14 substantially abridges the right conferred by Art. 14.If the remedy is totally suspended, the right is temporarily abridged.If the President's order under Art. 359(1) is a law within the meaning of Art. 13(3)(a) the President can never make an order under Art. 359(1) suspending the right to move any Court for the enforcement of the right under Art. 14. This is an impossible conclusion, because by the very terms of Art. 359(1), the President is given the right to pass an order suspending the right to move any Court for the enforcement of the right conferred by Art. 14. An order which by the express words of Art. 359(1) can abridge or take away a right albeit temporarily cannot be held to be void on the ground that it infringes that right. The context of Art. 359(1) requires that an order of the President cannot be a law within the meaning of Art. 13(2). I do not propose to decide in this petition which of the two opposing contentions should be accepted. Even assuming for the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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