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TMI Blog1977 (1) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... al medical treatment under a doctor of his choice or for any other facility would be enforcing fundamental rights through the aid of Court. The Presidential Proclamation is a complete answer against the enforcement of such reliefs through the aid of Court. The detenus may approach the competent administrative authorities for special medical attention or for facilities for performance of funeral ceremonies of their kith and kin or for facilities to appear at the examination or any other facility of similar nature. It is open to the administrative authorities to take such action as they may be advised under the relevant provisions of the Act. But if the authorities do not give any relief it was said by counsel for the detenus then the detenus could come to the court. This contention is also unsound and unacceptable because that would also be enforcing fundamental rights through the aid and process of court which is not permissible so long as the aforesaid Proclamation is in force. We are therefore clearly of opinion that the aforesaid writ petitions were not maintainable and the High Court of Bombay and Karnataka were clearly in error in passing the impugned directions which are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .No. 310/1976 1-9-1975 Crl. Application No. 20/1975 Bombay Krishna Budha Gawda 7. Clauses 9(iii) 10, 12(i)and (xi), 19, 20, 21, 23, 24 and 31 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Maharashtra Conditions of Detention) Order, 1974 struck down and directions issued requiring the detaining authority to keep the detenu under detention as a 'civil prisoner' within the terms of and in all respects in conformity with the provisions of the Prisons Act, 1894 and further directing the detaining authority to, permit the detenu to maintain himself by receiving such funds not exceeding the sum of Rs. 200/per month us he may desire to have lot that purpose from any of his relatives or friends, and to purchase or receive from private sources at proper hours food. clothing, bedding, and other necessaries, including toilet requisites, toilet soap. cigarettes and tobacco, subject to examination gild to such rules, if any, as may be approved by the Inspector General , as also to permit the detenu to meet persons with whom he may desire to communicate at proper times anti tinder proper restrictions. Sr. No. 2. to permit the detenu to have his food ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. concerned and shall be conducted in accordance with the provisions of this clause as regards place, duration and conditions of the interview, and the proceedings shall be strictly confined to the objects for which the interview is granted. 19. Medical attendance :--(i) The Superintendent of the Hospital or the Civil Surgeon, as the case may be, shall depute a medical officer to visit each security prisoner detained in a police lock-up and report of his physical condition. The said Medical Officer shall visit the prisoner at least once a week and more often if the Superintendent of the Hospital or the Civil Surgeon or the Commissioner as the ease may be thinks fit, and submit the report on his condition to the Commissioner or the detaining authority, after the first day of each month and at any other time he considers necessary. (ii) Security prisoner detained in a jail or sub-jail shall in the event of illness, be treated in the same way as convicted criminal prisoner or treated under the rules made under the Prisons Act, 1894. 20. Toilet :--(i) Every security prisoner shall be supplied with neam or babul stick at Government expense. (ii) Every security prisoner shall be sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince it is for the appropriate Government to specify the place of a detenu's detention and to lay down by means of a general or special order the conditions as to his maintenance, interviews or communications with others with a view to prevent his contact with the outside world and sincewhat was sought to be enforced in the instant cases by means of the applications filed by or on behalf of the detenus under Article 226 and 227 of the Constitution in the aforesaid High Courts was nothing but various facts of personal liberty under Articles 19, 21 and 22 of the Constitution, the applications were not maintainable and the High Courts were not competent to deal with them and to either strike down the aforesaid clauses of the Maharashtra Conditions of Detention Order, 1974 or to issue the aforesaid directions to the detaining authorities. Mr. Seervai Mr. Ashok Sen, Mr. Desai and Mr. Dattar, learned counsel for the detenus have, on the other hand, emphasized: (1) that preventive detention does not stand on the samefooting as punitive detention and while it cannot be gainsaid that persons who can be prosecuted and punished for offences against the law can also be preventively detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that legality has to be understood as meaning the authority of law and it so understood, a person detained in accordance with the conditions framed under section 5 of the Act cannot complain that the conditions are illegal or ultra vires, broader challenges based on fundamental rights not being available; that the principle of reasonableness and the doctrine of ultra vires have no bearing on subordinate legislation framed under emergency laws; that the court cannot grant relief on vague and indeterminate philosophical theories like the totality of law; that as the line of demarcation between preventive and punitive detention which is easily perceivable at the stage of detention becomes progressively elusive and hazy when one comes to conditions of detention. there is little scope for generalisation; that curtain has to be drawn round a detenu to ensure effectiveness of detention which cannot be sacrificed in the interest of security of the State; that the observations made by the majority in Shivakant Shukla's case (supra) regarding the area of judicial interference which are sought to be relied upon on behalf of the detenus relate to the obvious eases where the Executive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they cannot furnish reliable basis for judicial relief; that the aforesaid directions of the Bombay High Court equating detenus with 'civil prisoners' amenable to the Prisons Act, 1894, does not only amount to a substitution or re-enactment of section 5 of the Act i.e. of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 but is also opposed to the definition of the 'prisoner' as contained in the Bombay Jail Manual which has not been amended so as to include persons directed to be detained under any Central or other Act providing for detention; that the mere fact that a person is detained for purposes of administrative convenience in a jail does not mean that he is a civil prisoner or that the Prisons Act applies to him; and that the necessity of having provisions in the conditions of detention orders enabling a detenu to consult private doctors in the presence of the official doctors in case of genuine necessity or to supplement his diet on medical grounds or to indulge in harmless pastimes like chess or carrom or to appear in examinations are matters for which the appropriate Government should be approached. We have given our an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 anything 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." "Article 353. While a Proclamation of Emergency is in operation then- (a) notwithstandi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause (1) shall, as soon as may be after it is made, be laid before each House of Parliament." It is hardly necessary to emphasize that the provisions of the Articles reproduced above arc designed to arm the State with special powers to meet extraordinary situations created in times of grave national emergencies due to war, external aggression and internal disturbance when the security of the State nay the very existence of the nation is threatened necessitating the subordination of individual rights to the paramount consideration of the welfare of the State, and to give effect to the well recognized principle to which particular attention was called by E.C.S. Wade and Godfrey Phillips by inserting the following passage in their Constitutional Law, 8th Edition, Chapter 48, pp. 717, 718:-"It has always been recognized that times of grave national emergency demand the grant of special powers to the Executive. At such times arbitrary arrest and imprisonment may be legalised by Act of Parliament." It is, however, necessary to state that there is an appreciable difference between Articles 358 and 359(1) of the Constitution. Whereas simultaneously with the declaration of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 358 suspends the rights only under Article 19 to the extent that the legislature can make laws contravening Article 19 during the operation of a Proclamation of Emergency and the Executive can take action which the Executive is competent to take under such laws. Article 358 does not suspend any fundamental fight. While a Proclamation of Emergency is in operation the Presidential Order under Article 359(1) can suspend the enforcement of any or all fundamental rights. Article 359(1) also suspends any pending proceedings for the enforcement of such fundamental right or rights, the purpose and object of Article 359(1) is that the enforcement of any fundamental right mentioned in the Presidential Order is barred or it remains suspended during the emergency. Another important distinction between the two Articles is that Article 358 provides for indemnity whereas Article 359(1) does not, Article 359(1A) is on the same lines as Article 358 but Article 359(1A) now includes all fundamental rights which may be mentioned in a Presidential Order and is, therefore, much wider than Article 358 which includes Article 19 only. (1) A person can enforce a fundamental right both in the case of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the law and may by the law be forfeited or abridged." Having noticed the amplitude of the provisions incorporated in our Constitution by its rounding fathers in relation to the threat posed by three types of grave emergencies on the basis of the experience gained . in England and United States of America and their effect, let us now turn to the various Presidential Orders and notice their effect. Presidential Order dated November 3, 1962 issued under clause (1) of Article 359 of the Constitution after the proclamation of emergency made on October 26, 1962 under clause (1) of Article 352 of the Constitution consequent on the invasion of India by China on September 8, 1962 ran as follows :-- "New Delhi, the 3rd November, 1962 G.S.R. 1464--In exercise of the powers Conferred by clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person to move 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, if such perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 threatended by internal disturbances. New Delhi Sd/F.A. Ahmed the 25th June, 1975 President." Presidential Order dated June 27, 1975 promulgated under clause (1) of Article 359 of the Constitution runs thus :-- "In exercise of the power conferred by clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the Proclamations of Emergency made under clause (1) of Article 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1975 are both in force. This order shall extend to. the whole of the territory of India except the State of Jammu and Kashmir. This order shall be in addition to and not in derogation of any order made before the date of this order under cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordingly, if a person was deprived of his personal liberty not under the Defence of India Act or any rule or order made thereunder but in contravention thereof, his locus standi to move any court for the enforcement of his rights conferred by Articles 21 and 22 of the Constitution was not barred. More or less, similar was the pattern and effect of the Presidential Order dated November 16, 1974. The position with respect to the Presidential Orders dated June 27, 1975 and January 8, 1976 is, however, quite different. These orders are not circumscribed by any limitation and their applicability is not made dependent upon the fulfilment of any condition 'precedent. They impose a total or blanket ban on the enforcement inter alia of the fundamental rights conferred by Articles 19, 21 and 22 of the Constitution which comprise all varieties or aspects of freedom of person compendiously described as personal liberty. (See/1. K. Gopalan v. The State of Madras(1), Kharak Singh v. State of U.P.(2) and A.D.M. Jabalpur v. Shivakant Shukla (supra). Thus there is no room for doubt that the Presidential Orders dated June 27, 1975, and January 8, 1976, unconditionally suspend the enforceability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invariable at all times and in all circumstances. ...The suspension of right to enforce fundamental right has the effect that the emergency provisions in Part XVIII are by themselves the rule of law during times of emergency. There cannot be :any rule of law other than the constitutional rule of law. There cannot be any pre-Constitution or post-Constitution Rule of Law which can run counter to the rule of law embodied in the Constitution, nor can there be any invocation to any rule of law to nullify the constitutional provisions during the times of emergency." Again as observed by my learned brother Beg, J. in A.D. M. Jabalpur v. Shivakant Shukla's case (supra) "the only Rule of Law which can be recognised by Courts of our country is what is deducible from our Constitution itself. The Constitution is, for us, the embodiment of the highest "positive law" as well as the reflection of all the rules of natural or ethical or common law lying behind it which can be recognised by Courts. It seems to me to be legally quite impossible to successfully appeal to some spirit of the Constitution or to any law anterior to or supposed to lie behind the Constitution to fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned by the Constitution itself. The Constitution is the paramount and supreme law of the land and if it says that even if a person is detained otherwise than in accordance with the law, he shah not be entitled to enforce his right of personal liberty, whilst a Presidential Order under Article 359, clause (1) specifying Article 21 is in force, the Court has to give effect to it as the plain and emphatic command of the Constitution." The observations made by this Court in Dhirubha Devisingh Gohil v. State of Bombay ([1955] 1 S.C.R. 691 = A.I.R. 1955 S.C. 47) and reiterated in A.D.M. Jabalpur v. Shivakant Shukla (supra) that if any pre-Constitution right has been elevated as a fundamental right by its incorporation in Part III, the pre-existing right and the fundamental right are to be considered as having been grouped together as fundamental rights conferred by the Constitution cannot also be ignored. The conclusion, therefore, seems to us to be irresistible that as Articles 19, 21 and 22 of the Constitution which, according to the decisions of this Court in 4. K. Gopalan v. State of Madras (supra), Kharak Singh v. State of U.P. (supra) and A.D.M. Jabalpur v. Shivakant Shukla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om its preamble being the conservation and augmentation of foreign exchange and the prevention of smuggling activities of considerable magnitude secretly organised and carried on which have a baneful effect on the national economy and gravely undermine the security of the State, it is essential that the contact of the detenus with the outside world should be reduced to the minimum. It is, therefore, for the State Governments who are in full possession of all material facts including the peculiar problems posed by foreign exchange and smuggling and not for the Courts who have neither the necessary knowledge of the facts nor the legal competence to regulate conditions of detention of persons including their maintenance, interviews or communications with others. The High Court also seem to have ignored the observations made by this Court in State of Maharashtra v. Prabhakar Pandurang Sanzgiri & Anr. (supra) and in A.D.M. Jabalpur v. Shivakant shukla (supra) to the effect that when a person is detained, he loses his freedom. He is no longer a free man and, therefore, he can exercise, only such privileges as are conferred on him by the order of detention or by the rules governing his d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riate Governments. or other competent administrative authorities invoking their powers under section 5 read with section 12 of the Act or other relevant provisions thereof. In the result, appeals diarised as Nos. 3002 and 3003 of 1976 fail and are hereby dismissed while the rest of the appeals are allowed and the orders and directions forming the subject-matter thereof are quashed. The special leave petitions are disposed of as infructuous as in view of our Judgment High Court Orders cannot stand. Since during the course of arguments, it was pointed out to us that the conditions of detention laid down by some State Government differ in certain particulars, we may, in conclusion, observe that the appropriate Governments would do well to take necessary steps to bring about uniformity therein. To eliminate the chances of hardship, the appropriate Governments may as well issue standing orders to meet special contingencies which necessitate expert medical aid being provided to the detenus for the maintenance of their health or their being removed temporarily from their places of detention on humanitarian grounds to enable them to perform the obsequies of their kith and kin or for appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or fundamental or common law which, in so far as the rights covered by Part III of our Constitution, together with implications of such rights, are involved, is not embodied in the Constitution itself. Furthermore, this Court held there, after considering all the relevant case law on the subject, from the case of 4. K. Gopalan v. State of Madras ([1950] S.C.R. 88), through Kharak Singh v. State of U.P.( [1964] (1) S.C.R. 332), I. C. Golaknath v. State of Punjab ([1967] (2) S.C.R. 762), His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala ([1973] Supp. S.C.R. I ), to Haradhan Saha v. The State 0f West Bengal & Ors. ([1975] (1) S.C.R. 778=A.I.R. 1974 S.C. 2154), that the sweep of Articles 19 and 21 is wide enough to include every aspect of personal freedom. This Court recalled that, in Kharak Singh's case, a Constitution Bench of this Court had held that the concept of personal liberty, embodied in Article 21, is a compendious one and "includes all varieties of rights to exercise of personal freedom, other than those dealt with separately by Article 19, which could fall under a broad concept of freedom of person". "It was held to include freedom fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave nothing before them to enforce so as to be able to afford any relief to a person who comes with a grievance before them". I may mention, at the risk of repetition, that I had explained in Shukla's case (supra) that it is not the fundamental rights which are suspended by the Presidential Order under Article 359 of the Constitution but "the right to move any Court for the enforcement of such right by Part III as may be mentioned in the order" which is suspended for the duration of the Emergency. Speaking for myself, I was of opinion that what is very obviously and clearly affected is the enforceability of fundamental rights during such an Emergency. This means that it is really the jurisdiction of Courts, to the extent to which a petitioner seeks to enforce a fundamental right mentioned in the Presidential Order, which is suspended or is in abeyance. I said there (at p. 1302) (paragraph 346): "The result is that I think that there can be no doubt whatsoever that the Presidential Order of 27th June, 1975, was a part of an unmistakably expressed intention to suspend the ordinary processes of law in those cases where persons complain of infringement of their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dual by means of a writ of habeas corpus directed to him to produce a person illegally detained. But, so far as mere directions or orders for "any other purpose" are concerned, the jurisdiction of High Courts does not extend to making orders against private individuals. Therefore, the distinction which 1 drew in Shukla's case (supra), between a detention by an officer of the State, vasted with the power to detain and purporting to act under some law which authorises him to pass a detention order, and a detention by a private individual, has no real bearing on the cases now before us. I had certainly expressed the view in Shukla's case that, if a detention by a person or authority is not in exercise or purported exercise of a power to detain, which is not vested in all officers of State, under statutes providing for it, the action of an officer of the State, on the facts of a particular case, may be, prima facie. indistinguishable from a detention by a private person and may not be protected at all by the Presidential Order which only covers purported actions of the State and its Officers empowered to detain. That was, as I pointed out there, was a purely hypothet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f they have authority or power to do it under the Constitution. Devoid of that power, the directions, which may be given by a High Court after such enquiries as it makes, would be useless as they will not be capable of enforcement at all during the Emergency under the law as we find it in our Constitution. It will be noticed that, in most of the cases before, us, the demands made by the detenus have become infructous either because they have been promptly met by the State concerned under orders of a High Court, without any attempt by the State to do anything more than to question the jurisdiction, quite properly, of the High Court to give such directions, or because the time to which it related has expired so that there has remained nothing more than a question of law or principle for us to be called upon to determine. I cannot help observing, having regard to some of the allegations made, that they could not be at all easily accepted by any reasonable person and may have been proved to be totally unfounded if they had been actually investigated and tried. If the State Governments promptly met, as they seem to have done, all reasonable requests, either before or after the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution". In Haradhan Saha's case, this Court was concerned with indicating how preventive detention and punitive detention belong to two very different and distinct categories or could be separately classified from the point of view of Art. 14 of the Constitution. Their objects and social purposes may be very different in hue and quality. The procedures applicable in cases of the two types are certainly radically different. The authorities entrusted with the power of ordering punitive and preventive detentions also act on very different principles and for very different reasons. The Constitutional justification for preventive detention was considered by this Court at some length in Shukla's case (supra). Although preventive detention, which is constitutionally sancti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir, grievances lies, in times of Emergency, with the executive and administrative authorities of the State where they can take all their complaints. Here, we have to be content .with declaring the legal position that the High Courts, acting under Art. 226, have not been given the power to interfere in any matter involving the assertion or enforcement of a right to personal freedom by the detenus during an Emergency, when exercise of such power of High Courts is suspended. We are not concerned in these cases with other kinds of claims which may arise before the ordinary criminal or civil courts for wrongs done by officers acting maliciously in purported exercise of their powers. We are only concerned here with the powers of High Courts under Art. 226 of the Constitution. I have no doubt whatsoever, that if the object of a proceeding is to enforce the fundamental right to personal freedom, a High Court's jurisdiction under Art. 226 is barred during an Emergency even if it involves adjudication on the question of vires of a rule made under enactments authorising preventive detention. I find it impossible to invalidate a rule either intended for or used for regulating the conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectness of the proposition, that a rule of natural law, having as much force and validity as a rule of positive law embodied in a statute, has been infringed. Let us go a little further, and even assume that a rule embodied in a statute has been violated by an authority functioning under the Constitution in either framing or administering a rule. Can Courts, exercising powers under Article 226, declare that rule or purported action of an executive authority dealing with a detenu under the rule, or in exercise of its discretion, to be ultra vires ? We are all aware of the dictum of Justice Holmes that "law is not logic". Nevertheless, I do not think that the Courts have the power to persue a logic of their own to overcome what the letter of the Constitution clearly prohibits. The precedents we have discussed at length in Shukla's case indicate the declarations of law, that Articles 19 and 21 embrace every aspect of an alleged infringement of the right to personal freedom by a State authority or officer purporting to act under a law, by which we are bound, Even if the action violates a protection conferred by Article 21 upon citizens as well as non-citizens in ordinary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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